,^^_^_^_— ^-a,>J 


p,„«n,Geddes,Schrr.ettau&  Williams. 
NOV  *     ^^^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 

ON  THE 

LAW  OF  RAILROADS 


CONTAINING   A   CONSIDERATION    OF   THE   ORGANIZATION,   STATUS 

AND    POWERS    OF    RAILROAD    CORPORATIONS,    AND    OF    THF 

RIGHTS   AND  LIABILITIES   INCIDENT   TO   THE   LOCATION, 

CONSTRUCTION     AND     OPERATION    OF    RAILROADS; 

TOGETHER  WITH  THELR  DUTIES,  RIGHTS  AND 

LIABILITIES   AS   CARRIERS 

INCLUDING  I'.OTII 

STREET  AND  INTER URBAN  RAILWAYS 


By  BYRON  K.  ELLIOTT 

AND 

WILLIAM  F.  ELLIOTT 

Authors  of  ROADS  AND   STREETS,  GENERAL   PRACTICE,   EVIDENCE 


Volume  II 


INDIANAPOLIS 

THE  BOBBS-.MERRILL  CO.MPANY 

PUBLISHERS 


COJ'VKKiHT    ]8!t7 

By   Till':    liOWKX-MHKKILL   COMPANY 

CoPViaGHT  1907 
By  TTTK   V.0HB8-MKKR1LL  COMPANY 

COI'YKUJHT     ]921 

By  THIO  B0HBH-MI-:KR1LL  COMPANY 


T 


TABLE  OF  CONTENTS 


CHAPTER  XXV. 

ACTION  ^  BY   AND  A;;Ali\.-r   COKl'nKATlON  S. 

Section 

710.  Generally — Suits  by  corporations. 

711.  When  incorporation  mvist  be  alleged. 

712.  Actions  and  suits  against  corporations. 

713.  Power  of  corporation  over  litigation — Power  to  compromise  and 

arbitrate. 

714.  Estoppel  to  deny  corporate  existence. 

715.  When  stockholders  may  sue. 

716.  Service  of  process. 

717.  Resident  agent— Rule  in  federal  courts. 

718.  Agent  need  not  reside  in  state — Agent  casually  in  state. 

719.  Return  of  service. 

720.  Venue  of  actions  against  corporations. 

721.  Attachment. 

722.  Garnishment. 

723.  Duty  and  liability  of  garnishee. 

724.  What  may  be  reached  in  garnishment. 

725.  Garnishment  of  employes'  wages. 

726.  Injunction — Generally. 

727.  Injunction  where  the  company  seeks  to  take  or  condemn  lands. 

728.  Injunction  where  railroad  is  laid  in  a  street. 

729.  Enjoining  a   nuisance. 

730.  Injunction  at  suit  of  the   company. 

731.  Enjoining    "strikers." 

732.  Injunction  at  suit  of  stockholder. 
7Z2>.  Mandatory    injunction— English    cases. 

734.  Rule  in  the  United  States— Illustrative  cases. 

735.  Mandamus — Generally. 

736.  Mandamus  to  compel  completion  and  operation  of  road. 

(iii) 


748657 


iv  TABLE   OF    CONTEXTS. 

Section 

12)1.     Mandamus  to  compel  restoration  of  highway  and  construction  of 
crossings   or  viaducts. 

738.  Mandamus  to  compel  carriage  of  freight. 

739.  Mandamus  to  compel   the  company  to   maintain   stations   and   fur- 

nish increased  facilities. 

740.  When  mandamus  will  not  lie. 

741.  Who   may  be  realtor. 
1^2.     Quo   warranto. 


ciiAi'ri':R  xxvj. 

RF.MOVAL   or    CAUSR^. 

Section 

745.  When  removal  is  authorized — Statutes  now  in  force. 

746.  What  are  suits  of  a  civil  nature  under  the  removal  acts. 

747.  Parties. 

748.  Rights   of  removal   as   affected   by  amount   in   controversy. 

749.  Diverse   citizenship   as   a   ground   for  removal. 

750.  Separable   controversy. 

751.  Action  against  company  and  employe. 

752.  Prejudice  or  local  influence  as  a  ground  for  removal. 

753.  Removal  where  federal  question  is  involved. 

754.  Time  and  manner  of  making  application   for  removal. 

755.  Effect   of   application    on   jurisdiction    of   state    and    federal    court. 

756.  Remanding  and  dismissing  cause. 

757.  Remanding — Amendment — W^aiver. 

758.  Pleading  and   practice   in   federal   court   after   removal. 

759.  Recent   cases — Miscellaneous. 

760.  Question    of   jurisdiction    where    neither    party    resides    in    federal 

district — Waiver. 

761.  Right  to  proceed  in  state  court  after  dismissal  in  federal  court. 


CHAPTER  XXVll. 

COVfRNMENT    CONTROL,    LOCATION    AND    CONSTRCCIION. 

Section 

770.  Introductory. 

771.  Effect  oi  the  commerce  clause  of  the  federal  constitution  upon  the 

power  of  the  states. 
111.     Legislative    power    over    private    rights    of    railroad    companies — 

Nature  of. 
IIZ.     Constitutional   protection. 


TABLE    OF    rOXTENTS.  V 

Section 

774.  The  limits  of  legislative  power  unduly  extended. 

775.  Regulations   affecting  acts   and   duties   of   a   public   nature — Relat- 

ing to  stations. 

116.     Other    illustrative    cases — Regulations    as    to    station    accommoda- 
tions. 

111.     Corporate    rights    are    subject   to    the   police    power. 

778.  The  police  power  is  fettered  by  limitations. 

779.  Subject  must  be  one  over  which  the  police  power  extends — Cases 

adjudging  statutes   invalid. 

780.  Police  power — Legislative  and  judicial  questions. 

781.  The  police  power  and  the  commerce  clause  of  the  federal  consti- 

tution. 

782.  Regulations  that   have   been   held   valid — Miscellaneous. 

783.  Regulations  as   to   equipment   held   valid. 

784.  Regulations  as  to  lighting  track  held  valid. 

785.  The    power  to    impose    penalties    in    favor    of    private    persons — 

Constitutional    questions. 

786.  Regulating  speed  of  trains. 

787-  Stopping  trains  at  highway  crossings. 

788.  Fencing   tracks. 

789.  Grade    crossings. 

790.  Grade   crossings  continued. 

791.  Requiring  services  and  denying  compensation. 

792.  Federal    corporations — State    can    not   transform    into    a    domestic 

corporation. 


CHAPTER  XXVIII. 

STATIi    RAILROAD    COM  MISSION F.R.'^. 

Section 

795.  Introductory. 

796.  Nature  of  state  railroad  commissions. 

797.  The  power  to  create  railroad  commissions. 

798.  Strictly  judicial  powers  can  not  be  conferred  upon  administrative 

or  ministerial  officers. 

799.  Granting  authority  to  make  regulations  not  a   delegation  of  legis- 

lative  power. 

800.  Legislature    can    not    authorize    a    railroad    commission    to    make 

unjust  discriminations. 

801.  Members  of  railroad  commission  are  public  officers. 

802.  Qualifications    of    commissioners. 

803.  Powers    of   railroad    commissioners — Illustrative    cases. 

804.  Powers   of  commissioners — Other  cases. 


Vi  TAIUJC    OF    CON'l'KXTS. 

Section 

805.  Jurisdiction  of  railroad   commissioners. 

806.  Jurisdiction  of  commission  not  extended  by  implication— General 

rule. 

807.  Incidental    powers    of   a    railroad    commission. 

808.  Right  of  railroad  companies  to  a  hearing. 

809.  Orders  of  commissioners  not  contracts. 

810.  Certificates  of  commissioners  tl^at  rates  are  reasonable— Efifect  of. 

811.  Regulation  of  charges  for  transporting  property  and  passengers. 

812.  Domestic   commerce. 

813.  Reasonableness    of    freight    and    fare    tariff    of    rates — How    far    a 

judicial   question. 

814.  Regulation   of   charges — Test    of   reasonableness. 

815.  Tariff  of  rates— Tests  of  reasonableness. 

816.  TarifT  of  rates — Discrimination  in  interstate  rates. 

817.  Stations— Power    to    order    company    to   provide. 

818.  Naming   stations. 

819.  Switching   charges. 

820.  Procedure  before  the  commissioners. 

821.  Efifect  of  the  decision   of  the   commissioners   that  a   company  has 

not  committed  an  act  authorizing  a  forfeiture. 

822.  Enforcing  the  orders  of  the  commissioners — Generally. 

823.  Enforcing  the  orders   of  the  commissioners— Mandamus. 

824.  Mandamus -Enforcing      orders      of      commissioners — Illustrative 

cases. 

825.  Suits    against    railroad     commissioners    are    not    ordinarily    suits 

against  the  state. 

826.  Remedies  for  illegal  acts  of  railroad  commissioners. 

827.  Specific  statutory  remedy— Federal  rule. 

828.  Parties  to  suits  against  railroad  commissioners. 

829.  Review  of  certiorari. 

830.  Injunction  against  commissioners — Generally. 

831.  Where  commissioners  exceed  their  jurisdiction  injunction  will  lie. 

832.  Vacating  orders  of  commissioners  on  the  ground  of  fraud. 

833.  Federal  question — Removal  of  causes  from  state  courts. 


chapti^:r  XXIX. 

PI':NAL   OFr-r.N'MS    H.     .XXD    .'\t;AlN.ST    R.\ir,ROAl)   COM  P  A. \' lis. 

Section 

840.  Penal  offenses    by    railroad    companies — Generally. 

841.  Penal  statutes   strictly  construed— No   extraterritorial   effect. 

842.  Right  of  action  is  affected  by  penal  statutes— Effect  of  violation 

as  proof  of  negligence. 

843.  Whether  private  injury  essential  to  recovery  of  penalty. 


TABLE    OK    COXTKN'l'S.  Vll 

Section 

844.  Action  for   enforcement  of  penal   statutes. 

845.  The  informers'  rights — Parties. 

846.  The  penalty — Computation. 

847.  When   "penalty"  and  when  "liquidated  damages." 

848.  Indictment  of  railroad  companies  for  causing  death. 

849.  Violation  of  Sunday  laws. 

850.  Indictment  of  railroad  company  for  maintaining  a  nuisance. 

851.  Indictment  under  separate  coach  act — Variance. 

852.  Obstruction  of  highways. 

853.  Failure  to  maintain  accommodations  at  stations. 

854.  Indictment  for  failure  to  maintain  accommodations. 

855.  Statutory  signals — Stops  at  crossings. 

856.  Blackboards  and  bulletins  at  stations. 

857.  Failure  to  furnish  cars. 

858.  Unlawful  speed. 

859.  Penalties  for  detention  of  baggage. 

860.  Other  penal  regulations. 

861.  Full  crew  and  hours  of  service  laws. 

862.  Blacklisting — Clearance  cards. 

863.  Violation  of  federal  regulations. 

864.  Penalty  for  confinement  of  live  stock. 

865.  Penalty  for  confinement  of  live  stock — State  legislation. 

866.  Offenses     against     railroads — Obstructing     mails     and     interfering 

with  interstate  commerce. 

867.  English  statutory  penalties  for  riding  without  paying  fare. 

868.  Sale  of  tickets  without  authority — "Scalpers." 

869.  Climbing  on  cars — Evading  payment  of  fare. 

870.  Placing  obstruction  on  track. 

871.  Shooting  or  throwing  missile  at  car. 

872.  Breaking  into  depot  or  car — Burglary. 

873.  Injury  to  railroad  property — Malicious  trespass. 

874.  Other  crimes  against  railroad  companies. 


CHAPTER  XXX. 

TAXATION'    O;-     KAILROAD    ]'ROP!:.RTV. 

Section 

880.  Taxation   of  railroads — Preliminary. 

881.  Legislative  power. 

882.  Whether    boards    of    assessment    and    equalization    have    judicial 

powers. 

883.  Appropriate   method    of    assessing. 

884.  Ivlethods  of  taxation. 

885.  What  is  meant  by  "roadway"  in  revenue  laws. 


\iii  TABLE  OP  roN'r?:xTS. 

Section 

886.  Railroad  bridges  and  bridge  companies. 

887.  Statutory  method  of  assessment  exclusive. 

888.  I,egis]ative    discretion — Classification. 

889.  Equality  and   uniformity. 

890.  Equality  and  uniformity — Double  taxation. 

891.  Duties  of  corporation — Rights  of  stockholders. 

892.  Failure  of  the  corporation  to  make  return — Effect  on  stockholder. 

893.  Situs    of    stock    of    nonresident    corporation    owned    by    domestic 

corporation. 

894.  Situs  of  rolling  stock. 

895.  Discrimination. 

896.  Lien   of  assessment. 

897.  Taxation  of  street  and  interurban  railroads. 

898.  Relinquishment  of  the   power   of  taxation. 

899.  Exemption  from  taxation — Consolidation. 

900.  Right  of  exemption  nonassignable. 

901.  Immunity  from  taxation  not  a  franchise. 

902.  Exemption   of  property  used   in   operating   railroad. 

903.  Withdrawal    of   exemption. 

904.  Remedies — Injunction. 

905.  Remedies — Injunction- — Suit  by  taxpayer. 

906.  Inequality   no   ground   for   injunction. 

907.  Tender  of  amount   of  taxes   owing  is   required. 


CHAPTER  XXXI. 

TAXATION  AS  AFFECTED  BV    THE  FEDEKAl.   COXSTTTUTION. 

Section 

910.  Taxing  interstate  commerce  railroads. 

911.  Interstate  commerce — Obstruction  of. 

912.  Railroad   property  used   in   interstate   commerce   is   taxable   by  the 

state. 

913.  Interstate    commerce — Taxation    of    property    brought    from    one 

state  into  another. 

914.  Railroad   in  more   than  one   state. 

915.  Mileage  basis  of  valuation. 

916.  License    tax. 

917.  Privilege  tax  on   interstate  railroads. 

918.  Privilege    tax    discriminated    from    a   property    tax. 

919.  Excise  tax. 

920.  Excise,   license   and   privilege   taxes — Review   of   recent   decisions. 

921.  Tax  on  passengers   carried. 

922.  Tax   on    interstate    freight. 


table  of  roxtknts.  ix 

Section 

923.  Tax  on  gross  receipts  of  interstate  commerce  corporations. 

924.  Fees  for  the  right  to  be  a  corporation  not  taxes. 

925.  Municipal   tax  as  compensation   for  use   of  streets. 

926.  Impairing  obligation   of  a   contract. 

927.  Impairing    obligation    of    contracts — Tax    on   bonds. 

928.  Exemption    of    railroad    property — Contract    alteration    of   charter. 

929.  Due  process  of  law  in  tax  proceedings. 

930.  Equal  protection  of  the  laws. 

931.  Equal  protection  of  the  laws,  continued. 

932.  Equal  protection  of  the  laws — Corporations  are  persons. 

933.  Equal  protection  of  the  laws — What  is  a  denial  of. 

934.  1^'ourteenth  amendment — Unequal  protection  generally. 

935.  Classification  not  a  denial  of  equal  protection. 

936.  Fourteenth  amendment — Tax  for  salaries  of  railroad  commission- 

ers. 

937.  Corporations  deriving  rights  from  the  United   States. 

938.  Land   grants. 

939.  Domestic  commerce. 


CHAPTER  XXXII. 


LOCAL    ASSESSMENTS. 

Section 

945.  Assessments  and  taxes — Distinction. 

946.  Local  assessments — Power  to  levy. 

947.  Statute  must  be  complied  with. 

948.  Property  subject  to   local   assessment — General   rule. 

949.  Property  o'f  railroad  companies. 

950.  Right  of  way — Whether  subject  to  assessment. 

951.  Abutting  property- — Right  of  way  is  not. 

952.  Whether  street  railroad   is  subject  to  assessment. 

953.  Right  of  way — Mode  of  assessing. 

954.  Assessment  for  drainage  purposes. 

955.  Bridges  over  natural  watercourses  utilized  for  drainage  purposes. 

956.  Lien  of  the  assessment — Personal  liability. 

957.  Property  secondarily  liable — Back-lying  property. 

958.  Assessment  of  right  of  way — Enforcing  assessment. 

959.  Procedure. 


■KK.I 


'l-.MU.K    OF    CONrKN'l'S. 

(1!  \n'i-:R  xxxii 

LAM)  <;rants. 


Section 

965.  The  ground  upon  wliich  public  aid  to  railroads  rests. 

966.  T.and    grants. 

967.  Construction  ot"  land   grants. 

968.  Construction  of  land  grants — Illustrative  cases. 

969.  Effect  of   grant. 

970.  Effect  of  grant^Illustrative  cases. 

971.  Reserved   lands. 

972.  Withdrawal— Where   land  becomes   part   of  public  domain. 

973.  Indemnity    lands. 

974.  Rules  laid  down  by  Supreme  Court  of  United  States, 

975.  Priority  rights. 

976.  Breach  of  condition — Forfeiture. 

977.  Legislative  declaration  of  forfeiture. 

978.  Cancellation  of  grants  and  entries. 

979.  Condition  that  land  shall  revert  to  United  States  if  not  disposed  of 

within  a  fixed  time. 

980.  Staking  and   surveying  line   does  not  conclude   the   comp.my. 

981.  .\id  to  two  companies  by  same  grant. 

982.  Grants  by  the  government — Estoppel. 

983.  Where    state    renders   performance   of   condition    impossible    grant 

is  not  defeated. 

984.  Partial  failure  to  perform  conditions. 

985.  Notice  by  possession — Adverse  possession. 

986.  Injunction  on  the  application  of  company. 

987.  Effect  of  reservation  of  right  to  use  railroad  as  a  highway. 

988.  Right  to  take  timber  and  material  from  adjacent  lands. 


CHAPTER  XXXIV. 

PUBLIC   AJl). 

Section 

995.  State  aid. 

996.  State  aid — Lien  of  state. 

997.  Constitutionality  of  statutes  authorizing  municipal  aid  to  railroads. 

998.  Construction  of  constituticmal   provisions. 

999.  Corporate  power — Constitutional  limitations. 

1000.  Constitutional  prohibitions. 

1001.  Direct  limitations   upon   the   state  not  limitations   upon   power  to 

authorize  municipalities  to  grant  aid. 

1002.  Constitutional   restrictions   operate  prospectively. 


lAULl':    OF    CONTEXTS.  XI 

Section 

1003.  Limitation   upon   the  power  of  municipalities   to   incur  debts. 

1004.  Constitutional  questions — Delegation  of  legislative  power. 

1005.  Submission  to  vote. 

1006.  Submission   to   popular  vote — Constitutional    requirements. 

1007.  Necessity  of  regularity  in   the  election. 

1008.  Form  of  ballot. 

1009.  Form  of  ballot — Double   question. 

1010.  Constitutional     power — Compelling     public     corporations     to     aid 

railway  companies. 

1011.  Scope   of   the  legislative  power. 

1012.  Scope  of  the  legislative  power — Illustrative  cases. 

1013.  Power   to   aid   railroads — Statutory   authority. 

1014.  Power  to  grant  aid   is  continuous. 

1015.  Railroad  aid  laws  not  restricted  to  new  companies. 

1016.  Taxing   the  property  of  one  railroad  company  to  aid  in   the  con- 

struction of  the  road  of  another  company. 

1017.  Construction  of  statutes  conferring  authority  to  aid  railroad  com- 

panies. 

1018.  Inadequacy  of  statute. 

1019.  Impairment  of  contract  rights. 

1020.  Impairment  of  contract  rights — Illustrative  cases. 

1021.  Construction  of  statutes — Implied  powers. 

1022.  Construction  of  statutes  conferring  authority  to  aid  railroad  com- 

panies— Illustrative  instances. 

1023.  Construction  of   enabling  acts — A'djudged   cases. 

1024.  Means  and  methods. 

1025.  Requirements   of   statute — Classes   of   cases. 

1026.  Power   to   aid    by   subscription    does   not   authorize   the    execution 

of  bonds. 

1027.  Levy  of  taxes — Withdrawal  of  power — Time. 

1028.  Donations  and  subscriptions. 

1029.  Repeal  of  enabling  act — Withdrawal  of  authority. 

1030.  Validating  proceedings— Retrospective  laws. 

1031.  Legislative  power  to  authorize  ratification. 

1032.  Curative  statutes — Requisites  of. 

1033.  Division  of  municipality  for  purpose  of  voting. 

1034.  What  corporations  may  be  authorized  to  grant  aid. 

1035.  Subscription  to  unorganized  company. 

1036.  Votes — Voters — Majority  of  votes. 

1037.  Failure  to  conform  to  the  requirements  of  the  enabling  act— Illu- 

strative cases. 

1038.  Conditions— Performance    of— Excuse   for   non-performance— Illu- 

strative cases. 

1039.  Other  illustrative  cases. 


Xll  'lAlU.K    OF    CONTICXTS. 

Section 

1040.  Time  for  completion  of  road  where  not  fixed  in  contract. 

1041.  Conditions — Power  of  municipality  to  prescribe. 

1042.  Change  of  municipality. 

1043.  I^ffecf  of  change  of  name  of  corporation. 

1044.  I.imitation.s   upon   the   amount. 

1045.  \'aluation   of   property. 

1046.  Conditions  must  be  perfdrmed. 

1047.  Preliminarj'   survey. 

1048.  Petition — Requisites   of — Petitioners — Qualifications  of. 

1049.  Notice  of  election. 

1050.  Notice  of  election — Strictness  with  reference  thereto. 

1051.  Influencing  voters. 

1052.  Vntc  docs  not  of  itself  constitute  a  contract. 

105v3.  Aid   autlinrii^cd   h}^   popular  vote — Duty  of  local   ofliccrs. 

1054.  Contract  granting  aid — Subscription — Enforcement. 

1055.  Power  of  municipal   officers  where   statute   requires  submission   to 

popular  vote. 

1056.  Decision  of  local  officers  as  to  jurisdictional  facts. 

1057.  Acceptance    of   aid. 

1058.  Ratification    of   subscription. 

1059.  Stock    subscribed   by   municipality — Legislative    control    of. 

1060.  Rights   and   liabilities    of   municipal    corporations   as    stockholders. 

1061.  Defences   to   municipal   subscriptions. 

1062.  Estoppel  of  tax-payers. 

1063.  Remedies  of  tax-payers. 

1064.  Remedies  of  municipalities. 

1065.  Remedies  of  railroad  companies. 

1066.  Remedies   of   railroad   companies,   continued. 


CHAP'I'ER  XXXV. 

MUXICII'.XL  Ain   BONDS. 

Section 

1070.  Power  to  issue  aid  bonds. 

1071.  Legislative  authority  requisite. 

1072.  Constitutional    questions — Completed   road. 

1073.  Governmental  subdivision  may  be  authorized  to  issue  bonds. 

1074.  Execution  of  the  power  to  issue  aid  bond.s — Generally. 

1075.  Execution  of  the  power  to  issue  aid  bonds — Implied  powers. 

1076.  Formal  execution  of  bonds. 

1077.  Execution   of  bonds — Delivery. 

1078.  Nature  of  municipal  aid  bonds. 

1079.  Proceedings    f)f   municipal    officers    must    conform    to    the    statute. 


TABLE    OF   CONTEXTS.  Xlll 

Section 

1080.  Want  of  power — Definition, 

1081.  Conflict  of  authority. 

1082.  Consolidation   does  not   take   away   right   to  bonds. 

1083.  Purchasers   of  aid  bonds — Duty  to  ascertain   that  power  to  issue 

bonds  exists. 

1084.  Bonds  issued  in  excess  of  the  limits  prescribed  by  the  constitution. 

1085.  Limitation  of  amount — Construction  of  statute. 

1086.  Bonds  in  excess  of  the  limit  prescribed  by  statute. 

1087.  Bonds    running  beyond    time   prescribed. 

1088.  Bonds  payable  out  of  a  specific  fund. 

1089.  Performance  of  conditions. 

1090.  No  right  of  railroad  company  to   money  or  bonds   on   stock   sub- 

scription. 

1091.  Ratification    of   bonds    irregularly   issued. 

1092.  Ratification  of  invalid  bonds. 

1093.  When  bonds  are  void. 

1094.  Form  of  bonds — To  whom  payable. 

1095.  Form  of  bonds — Lack  of  seal. 

1096.  Bona   fide   holders  of  aid  bonds. 

1097.  Estoppel  by  recitals  in  bonds — General  doctrine. 

1098.  Estoppel  by  recitals  in  bonds — Illustrative  cases. 

1099.  Recitals  in   bonds  not  always  conclusive. 

1100.  Official  certificates — Conclusiveness  of. 

1101.  Recitals  in  bonds  to  constitute  an  estoppel  must  be  of  facts. 

1102.  No    estoppel    where    the    officer   ordering   bonds   to    issue    had   no 

jurisdiction. 

1103.  Estoppel   otherwise   than   by  recital — Illustrative   instances. 

1104.  Estoppel  by  retention  of  stock. 

1105.  Recitals  in  bonds — Effect  of  against  bondholders. 

1 106.  Refunding — Substitution. 

1107.  Discretionary  powers  and  peremptory  duty. 

1108.  Registration. 

1109.  Rights  of  bona  fide  holders  not  afifected  by  sale  of  bonds  at  less 

sum  than  that  prescribed  by  statute. 

1110.  Subrogation  of  holder  of  invalid  bonds. 

1111.  Liability  of  municipality  to  purchaser  of  invalid  bonds. 

1112.  Right  of  municipality  to  recover  money  paid  because  of  wrongful 

acts  of  the  railroad  company. 

1113.  Defenses  to  aid  bonds. 

1114.  Bondholders   not    bound    by    proceedings    to    which    they    are    not 

parties. 

1115.  Following  state  decisions. 

1116.  Jurisdiction  of  federal  courts. 

1117.  Compelling  the  issue  of  bonds. 

1118.  Remedies   of  bondholders. 


xi\-  •rAiu.i:  of  con  i'i:.\"'rs. 

1119.  Renu-dies  of  bondholders — Compelling  levy  of  tax. 

1120.  Miscellaneous. 


C'llAI'TI-.R    XXWI. 

L()CA'1-_I().\    ()'■    TTIK.    UO.-M). 

Section 

1125.  Choice   of   location — How    dctenuiiied. 

1126.  Circular  or  belt  road. 

1127.  Discretion  of  company  in  determining  location — How  exercised. 

1128.  Determination   of  ([uestion   of  necessity  and  convenience   of  pro- 

posed railroad. 

1129.  Conflicting  grants— Priority  of  location. 

1130.  Location   of   road    upon   property  already   devoted   to   public    use. 

1131.  Location  of  abandoned  right  of  way. 

1132.  Branch  and  lateral  roads. 

1133.  Ivxempt  property. 

1134.  Prcliminar}'   survey. 

1135.  Perfecting  location — Map  of  proposed  route. 

1136.  Effect  of  location— When  location  is  complete. 

1137.  Construction  of  "from"  and  "to" — Terminus  "at  or  near." 

1138.  Contracts   to   influence  location. 

1139.  Change  of  location— When  authorized. 

1140.  Change   of  location  after   first  location   is   finally  completed. 

1141.  .'\bandonment  of  location — Effect. 

1142.  .Abandonment — What  constitutes — When  and  how  shown. 

1143.  Relocation  of  stations. 

1144.  Right  of  individual   to  enjoin  change  of  depot  or  station. 


CHA1>'I'KR  XXXVII. 

ACQU  ISlft'o'X  'di^'  R'ibk'T '  Or  '  AV  AY. 

Section 

1150.  Ilow  rigiit  of  way  may  be  acquired. 

1151.  Authority  to  purchase. 

1152.  Who  may   convey. 

1153.  Construction  of  deeds  and  contracts  for  right  of  way. 

1154.  Where  route  is  not  described  in  deed. 

1155.  Enforcement  of  agreement  to  sell — Specific  performance. 

1156.  When  specific  performance  will  not  be  enforced. 

1157.  Effect  of  conveyance  or  release  of  damages. 

1158.  What  estate  is  taken. 


TAfSLK    OK    CON'I'KN'l'S.  XV 

Section 

1159.  What  estate  is  taken,  continued. 

1160.  Conveyance  of  right  of  waj^  by  railroad  companies. 

1161.  Conditional  conveyances. 

1162.  Difference    between    conditions    precedent    and    conditions    subse- 

quent—Effect of  failure   to   perform   conditions   precedent. 

1163.  Conditions  subsequent — What  is  sufficient  performance — Effect  of 

failure  to  perform. 
11(j4.     Remedies  of  grantor  for  failure  of  company  to  perform  conditions 
•  ■■    ■'      subsequent.     '  '•'   u-rUri^ol:-',  ■)   ii!-;/!      .r,()l! 

1165.  Construction    of    conditions    subsequent — Compliance    with    condi- 

tions. 

1166.  When    equity    will    interfere    in    case    of    a    breach    of    conditions 

subsequent. 

1167.  Covenants  runnini;  with  the  land. 

1168.  Other  covenants. 

1169.  Right  of  way  over  mineral  lands — Reservation  of  right  to   mine. 

1170.  Use  of  land  acquired  for  right  of  way  purposes. 

1171.  Title  on  abandonment  of  right  of  way. 

1172.  Dedication  of  land  to  the  use  of  railroad. 

1173.  Dedication  to  railroad — Statute  of  frauds. 

1174.  Title  by  adverse   possession. 

1175.  Adverse  possession — Lacking — Extent  of  right  acquired. 

1176.  Adverse  possession   as   against  municipality. 

1177.  Rights   of   railroad   company  acquired  by   entry  under j  license. 

1178.  When  license  is  irrevocable.  •    idonBiH 


CHAPTER  XXXVIII. 


appropri.\tion  under  the  eminent  domain. 

.Section 

1185.  Definition  and  nature  of  the  eminent  domain. 

1186.  Power  inherent  in  states — Extent. 

1187.  Constitutional  provisions  and  questions. 

1188.  Public  use  and  necessity — Who  determines. 

1189.  Effect  of  legislative  determinations  of  public  use  in  first  instance. 

1190.  Public  use  and  necessity — ^What  constitutes  public  use. 

1191.  Public    use — General    rules    and    illustrations. 

1192.  Public   use   and  necessity,   continued. 

1193.  Exercise    of    power    by    corporation    exercising    both    public    and 

private  functions. 

1194.  Delegation   of  the   power  of  eminent   domain. 

1195.  Delegation    of    the    power   to    railroad  ■  companies — Extent    of    au- 

thority. 


x\  i  table  of  contknts. 

Section 

1196.  Extent   of   authority — Discretion    of   companj-    to    determine    par- 

ticular necessity. 

1197.  Limits   of   rule   as   to   discretion — What   is   reasonable   necessity. 

1198.  Company  may  be  compelled  to  condemn. 

1199.  Construction   of  statutes  granting  right  to  condemn. 

1200.  Right   of   foreign    and    consolidated   companies    to   condL-nin. 

1201.  E.xercise  of  the   right  by  de   facto  corporations. 

1202.  Right  to  condemn  where  road  is  leased  or  in  hands  of  a  receiver. 

1203.  Right  to  condemn  can  not  be  delegated  to  contractor  or  construc- 

tion  company. 

1204.  Purposes  for  whicii  a  railroad  company  may  condemn  generally. 

1205.  Purposes  for  which  company  may  condemn — Illustrative  case. 

1206.  Roads   to   mines   or  manufacturing   establishments — Right   to   con- 

demn  upheld. 

1207.  Right  to  condemn  for  road  to  private  enterprise  denied. 

1208.  Condemnation  of  land  for  future  use — Second  appropriation. 

1209.  What  may  be  appropriated — Generally. 

1210.  Property   of  other   corporations. 

1211.  Property  of  state  or  United  States. 

1212.  Tide  lands. 

1213.  Property  devoted  to  another  public  use. 

1214.  When  right  to  take  property  already  devoted  to  public  use  exists. 

1215.  Right  may  depend  on  whether  two  uses  can  co-exist  without  im- 

pairment. 

1216.  Franchises. 

1217.  Exclusive  grants  and  franchises. 

1218.  Buildings  on  right  of  way. 

1219.  Exempt  property. 

1220.  Extent  of  taking. 

1221.  Taking  additional  property. 

1222.  Title  or  interest  acquired. 

1223.  Reversion   on  abandonment. 

1224.  Width  taken  for  right  of  way. 

1225.  Taking  right  of  way  of  another  road — When  not  allowed. 

1226.  When  such  taking  is  allowed. 

1227.  Crossing  another  road. 

1228.  Condemnation  of  right  of  way  for  other  purposes— Highways. 

1229.  Condemnation  of  right  of  way  for  other  purposes — Reservoir  sites 

— Drainage. 

1230.  Condemnation  of  right  of  way  for  other  purposes— Telegraph  and 

telephone  lines. 

1231.  What  constitutes  a  taking — Generally. 

1232.  No  taking  where  no  property  right. 

1233.  What  constitutes  a  taking — Illustrative  cases. 

1234.  What  constitutes  a  taking — Other  illustrative  cases. 


TARLE    OF    COXTRXTS.  XVll 

Section 

1235.  Property   damaged   or    injured — Constitutional   and    statutory   pro- 

visions. 

1236.  Property    damaged — Illustrative    cases. 


CHAPTER  XXXIX. 


compi:  nsattox  axd  damages. 
Section 

1240.  Compensation — Constitutional  right. 

1241.  Provisions  of  the  federal  constitution — Federal  powers. 

1242.  Federal   power — Abridgment  of  right  of  navigation. 

1243.  Constitutional  right  to  compensation  does  not  extend  to  general 

damages. 

1244.  Compensation  must  be  made  in  monej' — Principle  not  violated  by 

deducting  special  benefits. 

1245.  The  measure  of  compensation  is  a  judicial  question. 

1246.  Right  to  compensation  not  lost  by  conditional  grant. 

1247.  Time  at  which  compensation  is  computed. 

1248.  Time  of  payment  of  compensation. 

1249.  Benefits — General  survey  of  the  subject. 

1250.  Benefits — The  different  lines  of  decision. 

1251.  Benefits — General  and  special. 

1252.  Benefits  confined  to  parcel  or  tract  actually  taken. 

1253.  Benefits  from  abandonment  of  an  existing  line  across  premises. 

1254.  Remote  or  conjectural  damages  can  not  be  allowed. 

1255.  Remote,   sentimental  or   conjectural   damages  continued. 

1256.  Remote  and  speculative  damages — Possibility  of  negligence  in  con- 

struction or  operation  of  road. 

1257.  Damages  confined  to  particular  tract. 

1258.  Injuries  to  part  of  tract  or  parcel  of  land  not  actually  taken. 

1259.  Elements   of  value. 

1260.  Compensation  for  additional  burden  on  right  of  way. 

1261.  Measure  of  damages — Illustrative  cases. 

1262.  Matters  to  be  considered  in  estimating  damages — Illustrative   in- 

stances. 

1263.  i^Ieasure  of  damages  for  property  of  railroad  company  taken  for 

other   public  use — Railroad  and  street  railroad  crossings. 

1264.  Measure  of  damages  for  property  of  railroad  company  taken  for 

other  public  use — Telegraph  lines. 

1265.  Measure  of  damages  for  property  of  railroad  company  taken  for 

public   use — Streets   and  highways. 

1266.  Railroads     and     street     railroads     in     streets — Compensation     to 

abutters. 


wiii  'PARLK   OF    COXTKNTS. 

Section 

1267.  Elevated   railroads. 

1268.  Damages    where    land    taken    is    abandoned    before    conclusion    of 

condemnation    proceedings. 

1269.  Improvements    made    by    company    under     unauthorized     entry — 

Views  of  the  authors. 

1270.  Improvements     made    by    company    under    miauthorized    entry — 

Illustrative    cases. 

1271.  Deviation  from  proposed  line — Change  of  route- 

1272.  Owner  at  time  possession  is  taken  is  entitled  to  damages — Vendor 

and   vendee. 
127.^.     Wlio   is  owner. 

1274.  Wlio  is  entitled  to  the  compensation   where   the  land  is   conveyed 

after    appropriation    proceedings    arc    commenced — Vendor    and 
vendee. 

1275.  Temporary   use   of  premises. 

1276.  Notice  to  purchaser  by  existence  of  railroad. 

1277.  To  whom   compensation   should  be   paid. 

1278.  Measure  of  damages  to  lessee. 

1279.  Apportionment   of  compensation. 

1280.  Occupying  claimants   on   public  lands. 

1281.  Efifect  of  assessment  of  damages. 

1282.  .-\ward  of  compensation  does   not  cover  negligent   acts. 

1283.  interest — Allowance    of. 

1284.  Presumption   of  payment   of  compensation — Statute   of   limitations. 

1285.  Waiver — Estoppel. 


CHAPTER  XL. 

PKOCi.Dl'RF   IX    .ArM'KOrKlATIOX    CASi:S. 

Skction 

1290.  Procedure— 'Introductory. 

1291.  Nature  of  the  proceedings. 

1292.  Civil  action — Removal  to  federal  court. 

1293.  Tribunals — Generally. 

1294.  Nature  of  the  tribunal   for  assessment  of  benefits  and   damages. 

1295.  Creation    of    the    tribunal — Legislative   power. 

1296.  Right  '>\   land  owner  t<i  have  ([uestion  of  right  to  take  determined. 

1297.  1  )cternnnalii'n  <  <\  nglit  <'\   inlcrurban  ruad  to  crcjss  railroad  track>. 

1298.  Tribunals — Jurisdiction — Decision  of  majority. 

1299.  .\ppointment    of    appraisers    or    commissioners    to    assess   benefits 

and    damages. 
13(1(1.      Duty   to   appoint   appraisers   or    commissioners — .Mandamus. 
1301.     Oualifications    of    jvn-ors — Appraisers    or    commissioners. 


ta15lk  of  ("on  tknts.  xi 

Section 

K302.  Waiver  of  objections  to  lack  of  qualification. 

1303.  Oath  must  be  taken  by  jurors  or  commissioners. 

1304.  Notice — General    doctrine. 

1305.  Notice — Requisites  of. 

1300.  Notice — Political   questions — Expediency. 

1307.  Notice — Description. 

1308.  Service  of  notice. 

1309.  Summoning;"  tlic  jury   or  commissioners. 

1310.  Parties. 

1311.  Parties — Grantor   or   grantee — Interested   parties   generally. 

1312.  Parties — Joinder — Effect   of  failure   to  join. 

1313.  Parties — Amendments. 

1314.  I'^fifort  to  agree. 

1315.  Petition  or  articles  of  appropriation. 
13P).  Limited   and   unlimited   petitions. 

1317.  Contents  of  the  petition. 

1318.  Contents  of  petition — Description  of  property. 

1319.  Petition — Defects   and    manner   of  testing. 

1320.  Title. 

1321.  Defenses — Questions  of  law  or  fact. 

1322.  Further   of   defenses. 

1323.  Effect    of    pendency    of    proceedings    to    condemn. 

1324.  Dismissal  of  proceedings — Effect  of. 

1325.  Dismissal^ — Other    cases. 

1326.  .Abandonment   of   proceedings. 

1327.  Meetings  of  commissioners  or  jurors. 

1328.  Open  and   close. 

1329.  Evidence   generally. 

1330.  Evidence    of   value — Illustrative    instances. 

1331.  Evidence  of  value — Further  illustrative  instances. 

1332.  Ta.x   list  and  assessments  as  evidence  of  value. 
1333-  Competency  of  witnesses. 

1334.  Opinions  of  witnesses. 

1335.  Power    of    commissioners    to    act    upon    their    own    knowledge- 

Evidence. 

1336.  \^iew. 

1337.  Instructions. 

1338.  Report  of  commissioners. 

1339.  Report    of   commissioners — Requisites    of — Illustrative   cases. 

1340.  Time  within  which  report  must  be  made. 

1341.  Objections    to    report. 

1342.  Confirmation  or  rejection  of  report — Modification. 

1343.  Misconduct  of  jurors   or   commissioners. 

1344.  Judgment. 

1345.  Waiver  of  objections. 

1346.  Company  a  trespasser  where  proceedings  are  void. 


XX  TAIM,i:    OF    (((NTKNIS. 

CIIAP'n-Jv  XLI. 

Ki:  MEDIKS   or    LAND-OWN  KKS. 

1350.  Rcnudics  tti  iMiforcc  payment  of  compensation. 

1351.  Remedies  of  land-owner — Generally. 

1352.  Remedies   of  land-owner — Injunction. 

1353.  Remedies    of    land-owner — Limitation    of    action. 

1354.  Remedies   of  land-owner— Parties  to  proceedings. 

1355.  Remedies  of  land-owner — Pleading. 

1356.  Remedies  of  land-owner— Evidence. 

1357.  Remedies   of  land-owner — Damages. 

1358.  Remedies    of    land-owner— Taking    or    injury    in    excess    of    that 

condemned. 

1359.  Remedies  of  land-owner — Right  of  company  to  conveyance. 

1360.  Effect  of  tender  of  payment  by  company. 

1361.  Acceptance   of  damages — Estoppel. 


CHAPTER  XLII. 


appeal  and  cektiorakl 
Section 

1365.  Appeal — When   authorized. 

1366.  Time  within  which  appeal  may  be  taken. 

1367.  Manner  of  taking  appeal — Parties. 

1368.  Notice— Bond. 

1369.  Issues  on  appeal — Questions  determined. 

1370.  Effect  of  appeal. 

1371.  Possession  pending  appeal. 

1372.  Trial  de  novo  in  intermediate  court. 

1373.  Appeal — Miscellaneous  matters. 

1374.  Costs  of  appeal. 

1375.  Certiorari. 

1376.  Certiorari— How  obtained— What  must  be  shown. 

1377.  Certiorari — Proceedings  on   return  of  writ. 


ELLIOTT  ON  RAILROADS 


CHAPTER  XXV. 
ACTIONS   BY   AMD   AGAINST  CORPORATIONS. 


Sec. 

bee. 

710. 

Generally — Suits    by    corpora- 
tions 

728. 

711. 

When  incorporation  must  be 

729. 

alleged. 

730. 

712. 

Actions     and     suits     against 

corporations. 

731. 

713. 

Power     of     corporation     over 

litigation — Power    to    com- 

HI. 

promise  and  arbitrate. 

714. 

Estoppel    to    deny    corporate 
existence. 

IZi. 

715. 

When  stockholders  may  sue. 

734. 

716. 

Service   of  process. 

717. 

Resident  agent — Rule  in  fed- 

735. 

eral   courts. 

736. 

718. 

Agent     need     not     reside     in 

state — Agent      casually      in 

state. 

719. 

Return  of  service. 

HI. 

720. 

Venue     of     actions     against 
corporations. 

721. 

Attachment. 

722. 

Garnishment. 

738. 

723. 

Duty  and   liability   of   garni- 

shee. 

739. 

724. 

What     may     be     reached     in 
garnishment. 

725. 

Garnishment     of     employes' 

wages. 

740. 

726. 

Injunction — Generally. 

727. 

Injunction    where    the    com- 

pany seeks  to  take  or  con- 

741. 

demn  lands. 

742. 

sue 


Injunction  where  railroad  is 
laid  in  a  street. 

Enjoining  a  nuisance. 

Injunction  at  suit  of  the 
company. 

Enjoining  "strikers". 

Injunction  at  suit  of  stock- 
holder. 

Mandatory  injunction — Eng- 
lish  cases. 

Rule  in  the  United  States- 
Illustrative   cases. 

Mandamus — Generally. 

Mandamus  to  compel  com- 
pletion and  operation  of 
road. 

Mandamus  to  compel  re- 
storation of  highway  and 
construction  of  crossings 
or  viaducts. 

Mandamus  to  compel  car- 
riage of  freight. 

Mandamus  to  compel  the 
company  to  maintain  sta- 
tions and  furnish  in- 
creased   facilities. 

When  mandamus  will  not 
lie. 

Who  may  be  relator. 

Quo   warranto. 

710  (615).    Generally— Suits  by  corporations. — The  power  to 
and  be  sued  is  one  of  the  necessary  incidents  of  a  corpora- 


710 


RAir.KOADS 


tion,^  since  to  be  recognized  by  law  as  a  collective  body  with  en- 
forceable rights  is  essential  to  its  legal  existence.-  It  has  been 
held  that  the  consent  of  a  majority  of  the  directors  or  trustees 
of  a  corporation  is  necessary  to  entitle  it  to  sue,-*^  but  it  is  cer- 
tainly not  the  general  rule  that  the  directors  must  take  action 
before  a  suit  can  be  instituted,  and,  in  any  event,  in  the  absence 
of  proof  to  the  contrary,  the  court  will  presume  that  the  suit 
was  properly  authorized.'  A  corporation  iiiay,  in  general,  avail 
itself  of  any  legal  remedies  which  would  be  availal)le  to  an  in- 
dividual under  similar  circumstances.  It  may  bring  an  action 
at  law  upon  a  contract,''  and  may  by  the  usual  remedies  recover 
damages  for  an}-  kind  of  wrong  wdiich  it  sufifers.^'  It  may  sue 
in  trespass  for  an  injury  to  its  business,'''  and  in  equity,  in  a 
proper   case,   for  an   injunction   to   prevent   injuries   to   its   prop- 


1  In  several  of  the  states  it  is 
provided  by  the  state  constitu- 
tions that  all  corporations  may 
sue  and  be  sued  in  courts  like 
natural  persons.  4  A.  &  E.  Enc. 
of  Law,  189.  In  Colorado  a  cor- 
poration may  sue  and  be  sued  as 
an  individual,  and  its  insolvency 
does  not  change  the  rule.  Breene 
V.  Merchants'  &c.  Bank,  11  Colo. 
97,  17  Pac.  280. 

li  3  Thomp.  Corp.  (2d  ed.), 
§3125;  Whites'  Supp.  Thomp. 
Corp.  §  3125.  This  power  existed  at 
common  law.  1  Blackstone  Com.  745. 
See  also  Bangor  &c.  R.  Co.  v.  Smith. 
47  Maine  34;  Heaston  v.  Cincinnati 
Ac.  R.  Co.,  16  Ind.  275,  79  Am.  Dec. 
430:  New  Orleans  Terminal  Co.  v. 
Teller,  113  La.  Ann.  7ZZ,  Z7  So.  624; 
Wilder  v.  Chicago  &c.  R.  Co.,  70 
Mich.  382,  38  N.  W.  289.  35  Am. 
&  Eng.  R.  Cas.  162;  Baltimore 
&c.  R.  Co.  V.  Gallahue,  12  Grat. 
(Va.)   655,  65   Am.   Dec.  254. 

3  Dart  v.  Huston.  22  Ga.  506. 
See    also    Holmes    v.    Jewett,    55 


Colo.  187,  134  Pac.  665.  But  com- 
pare American  Ins.  Co.  v.  Oakley, 
9  Paige  (N.  Y.)  496,  38  Am.  Dec. 
561;  Davis  v.  Memphis  &c.  R.  Co., 
22  Fed.  883;  Trustees  v.  Connolly, 
157  Mass.  272,  31  N.  E.  1058;  Col- 
man  V.  West  Virginia  &c.  Co..  25 
W.  Va.   148. 

-iBangor  R.  Co.  v.  Smith,  47 
Maine  34.  See  also  Conley  v.  Daugh- 
ters &c.  (Tex.  Civ.  App.).  151 
S.  W.  877;  Goodale  Phonograph 
Co.  V.  \'alentine,  69  Wash.  263,  124 
Pac.  691.  The  affidavit  in  support 
of  an  application  by  a  corporation 
for  change  of  venue  on  account  of 
local  prejudice  may  be  made  by 
the  secretary  of  the  corporation. 
St. 'Louis  &c.  R.  Co.  V.  Fowler, 
113  Mo.  458,  20  S.  W.  1069. 

•'>  Eakright  v.  Logansport  &c.  R. 
Co..  13  Ind.  404. 

<••  3  Thomp.  Corp.  {2nd  ed.\  §  2990, 
et   seq. 

"  A  corporation  may  sue  to  re- 
cover damages  for  a  libel  against 
it    in    its    business.      Metropolitan 


ACTIONS   BV   AND   AGAINST    COKI'ORATIONS 


§711 


erty.'^  It  may  have  a  writ  of  mandamus  to  compel  the  perform- 
ance by  others  of  legal  duties  owed  to  it.'*  In  a  proper  case  it 
may  also  maintain  a  bill  of  interpleader.^** 

§  711  (616).  When  incorporation  must  be  alleged. — It  is  fre- 
quently required  by  statute  that  a  plaintiff  corporation  shall 
allege  the  fact  of  its  incorporation/^  and  to  do  so  is  always  the 
better  practice.  A  failure  to  aver  corporate  existence  in  an  ac- 
tion by  or  against  a  corporation  cannot,  however,  be  taken  ad- 
vantage of  by  a  demurrer  for  want  of  facts. ^-  The  general  rule  is 
that    pleading    the    general    issue/ '^     or    going    to    trial    on    the 


&c.  Co.  V.  Hawkins.  4  H.  &  N. 
87;  Hahnemannian  Life  Ins.  Co. 
V.  Beebe,  48  111.  87,  95  Am.  Dec. 
519;  Trenton  Mut.  Life  Ins.  Co.  v. 
Perrine,  23  N.  J.  L.  402;  Knicker- 
bocker Life  Ins.  Co.  v.  Ecclesine, 
42  How.  Prac.  (N.  Y.)  201. 

8  See   post,   §  726. 

9  See   post,   §735. 

10  Salisbury  Mills  v.  Townsend, 
109  Mass.  115. 

11  Miller  v.  Pine  Min.  Co.,  2 
Idaho  1206,  31  Pac.  803;  Adams 
V.  Lamson  &c.  Co.,  59  Hun  127, 
13  N.  Y.  S.  118;  Kaulbach  v. 
Knickerbocker  Trust  Co.,  139  App. 
Div.  566,  124  N.  Y.  S.  286;  Texas 
&c.  R.  Co.  V.  Virginia  &c.  Co. 
(Tex.),  7  S.  W.  341;  Carpenter  v. 
AlcCord  Lumber  Co.,  107  Wis.  611, 
83  N.  W.  764. 

12  John  T.  Noye  Mfg.  Co.  v. 
Raymond  (Super.  Ct.  Buff.),  8 
Misc.  353,  28  N.  Y.  S.  693;  Fulton 
Fire  Ins.  Co.  v.  Baldwin,  il  N. 
Y.  648.  See  also  Stanly  v.  Rich- 
mond &c.  R.  Co.,  89  N.  Car.  331; 
Seymour  v.  Thomas  Harrow  Co., 
81  Ala.  250,  1  So.  45;  Nolte  v. 
Lebbert,    34    Ind.    163;    Wiles    v. 


Trustees  of  Phillipi  Church,  63 
Ind.  206;  Cone  Export  &c.  Co.  v. 
Poole,  41  S.  Car.  70,  19  S.  E.  203. 
24  L.  R.  A.  289.  As  shown  by  the 
above  authorities  if  a  demurrer  lies 
at  all  for  failure  to  allege  the  incor- 
poration it  seems  that  to  be  for 
want  of  legal  capacity  to  sue  and 
not  for  want  of  sufficient  facts. 
But  see  Carpenter  v.  McCord,  107 
^^^is.  611,  83  N.  W.  764. 

13  Mississippi  &c.  R.  Co.  v. 
Cross,  20  Ark.  443;  Litchfield 
Bank  v.  Church,  29  Conn.  137; 
Bailey  v.  Valley  &c.  Bank,  127 
111.  332,  19  N.  E.  695;  Heaston  v. 
Cincinnati  &c.  R.  Co.,  16  Ind.  275, 
79  Am.  Dec.  430;  Cicero  &c.  D. 
Co.  V.  Craighead,  28  Ind.  274; 
Beatt}-  V.  Bartholomew  &c.  So- 
ciety, l(i  Ind.  91 ;  Rockland  &c. 
Co.  V.  Sewall,  78  Maine  167;  Rem- 
bert  V.  South  Carolina  R.  Co.,  31 
S.  Car.  309,  9  S.  E.  968.  See  also 
3  Elliott  Ev.  §1930;  Whites'  Supp. 
Thomp.  Corp.  §  3223.  The  rule  is 
different  in  England  and  some  of 
the  states.  Henriquez  v.  Dutch 
West  Indies  Co.,  2  Ld.  Raym. 
1532;  Oregonian  R.  Co.  v.  Oregon 


§711 


RAILROADS 


merits^^  amounts  to  an  admission  of  plaintiff's  corporate  exist- 
ence and  capacity  to  sue.  In  some  states,  as  apparently  at  com- 
mon law,  it  is  not  necessary  to  allege  the  incorporation  of  a  plain- 
tifif  corporation.^^  The  theory  of  the  cases  so  holding  is  that  the 
"name  carries  with  it  the  assertion  of  a  fact,"  and  it  is  sufficient 
if  the  name  of  the  plaintift  imports  a  corporation. i^' 


&c.  Co.,  23  Fed.  232;  Williams  v. 
Bank  of  Michigan,  7  Wend.  (N. 
Y.)  540;  Bank  of  Jamaica  v.  Jeffer- 
son, 92  Tenn.  537,  22  S.  W.  211,  36 
Am.  St.  100;  Holloway  v.  Mem- 
phis R.  Co.,  23  Tex.  465,  76  Am. 
Dec.  68;  Jackson  v.  Bank,  9 
Leigh  (Va.)  240.  As  to  plea  of 
nul  tiel  corporation,  see  Johnson 
V.  Hanover  &c.  Bank.  88  Ala.  271, 
6  So.  909;  Michigan  Ins.  Bank  v. 
Eldred,  143  U.  S.  293,  12  Sup.  Ct. 
450,  36  L.  ed.  162;  Excelsior  Drain- 
ing Co.  V.  Brown,  47  Ind.  19; 
Schloss  V.  Montgomery  Trade 
Co..  87  Ala.  411,  13  Am.  St.  51;  3 
Thomp.  Corp.  (2nd  ed.),  §§  3227, 
322S;  Whites'  Supp.  Thomp.  Corp. 
§§3227,  3228. 

i-t  United  States  v.  Insurance 
Companies,  22  Wall.  (U.  S.)  99, 
22  L.  ed.  816;  Lehigh  Bridge  Co 
V.  Lehigh  Coal  Co.,  4  Rawle  (Pa.) 
9.  See  St.  Cecilia  Acadamy  v. 
Hardin,  78  Ga.  39,  3  S.  E.  305; 
Wright  V.  Fire  Ins.  Co.,  12  Mont. 
474,  31  Pac.  87,  19  L.  R.  A.  211; 
.Sengfelder  v.  Mutual  L.  Ins.  Co., 
5  Wash.  St.  121,  31  Pac.  428.  Cor- 
porate capacity  need  not  be 
proved  unless  it  be  challenged  by 
an  affirmative  allegation  of  no 
corporation.  Dry  Dock  &c.  R.  Co. 
V.  North  &c.  R.  Co.,  3  Misc.  61, 
22  N.  Y.  S.  556. 

1  •''Union   Cement   Co.  v.   Noble,   15 


Fed.  502 ;  Gorman  Reformed  Church 
V.  Von  Pucchelstein,  27  N.  J.  Eq. 
30.  See  Baltimore  &c.  R.  Co.  v. 
Sherman,  30  Grat.  (Va.)  602; 
note  in  Ann.  Cas.  1913C,  336. 
Many  of  the  states  provide  by 
statute  that  in  suits  where  a  cor- 
poration is  a  party,  no  evidence 
of  its  corporate  existence  need  be 
offered  unless  the  same  is  denied 
by  verified  plea.  Rosenberg  v. 
Claflin  Co.,  95  Ala.  249,  10  So.  521 ; 
Michigan  Ins.  Bank  v.  Eldred,  143 
U.  S.  293,  12  Sup.  Ct.  450,  36  L.  ed. 
162,  construing  Code  Wis.  §4199; 
Jones  V.  Ross,  48  Kans.  474,  29 
Pac.  680;  Canal  St.  Gravel  R.  Co. 
V.  Paas,  95  Mich.  372,  54  N.  W. 
907;  Swift  v.  Crawford.  34  Nebr. 
450,  51  N.  W.  1034;  Vulcan  v.  My- 
ers, 58  Hun  161,  11  N.  Y.  S.  663; 
McElwee  Mfg.  Co.  v.  Trowbridge, 
68  Hun  28,  22  N.  Y.  S.  674.  But 
it  has  been  held  that  this  does  not 
dispense  with  an  allegation  that 
the  defendant  is  a  corporation. 
State  V.  Chicago  &c.  Co.,  4  S.  Dak. 
261.   56  X.  W.  894,  46  Am.    St.   783. 

K!  Smythe  v.  Scott.  124  Ind.  183. 
24  N.  E.  685.  See  Cincinnati  &c. 
R.  Co.  v.  McDougall,  108  Ind.  179. 
8  N.  E.  571 ;  Shearer  v.  R.  S.  Peele 
Si  Co..  9  Ind.  App.  282.  36  N.  E. 
455.  .\  mere  general  allegation  that  it 
is  a  corporation  organized  and 
existing      under      the      laws      of      a 


ACTIONS  BV   AND   AGAINST   CORPORATIONS 


§712 


§712  (617).  Actions  and  suits  against  corporations. — Suits 
may,  in  general,  be  brought  against' a  corporation  upon  any 
cause  of  action  on  which  an  individual  will  be  liable  under  similar 
circumstances/^  and  two  or  more  corporations  may  become  joint- 
ly liable  in  the  same  manner  as  individuals.^^  It  is  sufficient  at 
common  law  to  sue  a  corporation  by  its  corporate  name,  without 
an  averment  of  the  act  of  incorporation.^'^  But  in  several  of  the 
states  an  allegation  of  the  defendant's  corporate  existence  must 


certain  state  is  generally  suffi- 
cient. See  Martin  v.  Kentucky 
Land  &c.  Co.,  146  Ky.  525,  142  S. 
W.  1038,  Ann.  Cas.  1913C,  Z^2,  and 
note  in  which  the  whole  subject  is 
elaborately  treated.  As  to  judi- 
cial notice,  see  3  Elliott  Ev. 
§  1929. 

1' A  corporation  is  liable  for 
the  torts  of  its  servants  com- 
mitted in  the  course  of  their  em- 
ployment. Chestnut  Hill  T.  Co. 
V.  Rutter,  4  Serg.  &  R.  (Pa.)  6, 
8  Am.  Dec.  675.  See  ante,  §§  250, 
251.  The     corporation     is    liable, 

generally,  to  the  same  extent  and 
in  the  same  manner  that  a  natural 
individual  would  be  liable  under 
like  circumstances.  First  Bap- 
tist Church  V.  Schenectady  R.  Co., 
5  Barb.  (N.  Y.)  79.  A  corpora- 
tion may  be  liable  for  malicious 
prosecution.  Springfield  Engine 
&c.  Co.  V.  Green,  25  111.  App.  106 
Gulf  &c.  R.  Co.  V.  James,  7i  Tex 
12,  10  S.  W.  744,  15  Am.  St.  743 
A  corporation  may  become  civilly 
responsible  for  libel.  Missour 
Pac.  R.  Co.  V.  Richmond,  72>  Tex 
568.  11  S.  W.  555.  4  L.  R.  A.  280 
15  Am.  St.  794,  29  Cent.  L.  J.  69; 
Fogg  V.  Boston  &c.  R.  Co..  148 
Mass.  513,  20  N.  E.  109,  12  Am. 
St.  583. 


18  An  action  may  be  maintained 
jointly  against  two  railroad  com- 
panies for  injuries  received  in  a 
collision  caused  by  the  concurrent 
wrongful  acts  of  negligence  of 
both  defendants.  Flaherty  v. 
Minneapolis  &c.  R.  Co.,  39  Minn. 
328,  40  N.  W.  160,  1  L.  R.  A.  6.S0, 
12  Am.  St.  654.  One  of  them, 
however,  in  a  proper  case,  may 
ask  judgment  over  against  its  co- 
defendant,  if  judgment  is  ren- 
dered against  it.  Gulf  &c.  R.  Co. 
V.  Hathaway,  IS  Tex.  557,  12  S. 
W.  999,  41  Am.  &  Eng.  R.  Cas. 
219. 

19  Exchange  Nat.  Bank  v.  Capps, 
2>2  Nebr.  242,  49  N.  W.  223,  29  Am. 
St.  433;  Maxwell  Code  PI.  161. 
Designating  the  defendant  by  a 
name  which  imports  a  corpora- 
tion is  a  sufficient  allegation  of  its 
corporate  existence.  Cincinnati 
&c.  R.  Co.  V.  McDougall,  108  Ind. 
179,  8  N.  E.  571 ;  Adams  Express 
Co.  V.  Harris,  120  Ind.  7Z,  21  N.  E. 
340.  7  L.  R.  A.  217,  16  Am.  St. 
315,  note  in  Ann.  Cas.  1913C,  336, 
citing  many  additional  cases.  In 
an  action  on  a  note  signed  by  a 
company  in  its  corporate  name,  it 
is  not  necessary  to  aver  its  cor- 
porate existence,  as  it  is  estopped 
by     such     signature     to     deny     it. 


§713 


RAILROADS 


be  contained  in  the  complaint  in  such  a  suit.-*^  Proof  of  the  facts 
so  averred,  however,  in  most  states,  is  not  required  unless  they 
are  denied  under  oath.-^  Where  a  corporation  formed  by  the 
consolidation  of  several  corporations  is  sued  for  the  debt  of  one 
of  the  constituent  companies,  it  has  been  held  that  the  declara- 
tion should  show  against  which  company  it  arose,  and  the  facts 
necessarv  to  fix  liability  upon  the  new  corporation. -- 

§  713  (618).  Power  of  corporation  over  litigation — Power  to 
compromise  and  arbitrate. — The  expediency  or  inexpediency  of 
litigation  is  a  matter  for  the  corporation,  or  the  directors,  acting 
in  good  faith  within  the  scope  of  their  powers,  to  determine,  and 
their  action  in  bringing  and  defending  suits  affecting  the  rights 
and  obligations  of  the  corporation  is  usually  binding  upon  the 
stockholders. 23  A  corporation  may,  therefore,  compromise  a 
pending  lawsuit  when  the  directors  believe  it  to  be  to  the  best 
interests  of  the  corporation  to  do  so.--*     It  may  also  refer  mat- 


Griffin  V.  Asheville  Light  &c.  Co., 
Ill  N.  Car.  434,  16  S.  E.  423.  It 
has  been  held  that  the  corpora- 
tion is  the  only  proper  party  to 
defend  and  that  a  director  can  not 
intervene  as  defendant  even 
though  the  corporation  has  failed 
to  pay  its  franchise  tax.  Ripp- 
stein  V.  Haynes  &c.  R.  Co.  (Tex. 
Civ.  App.),  85  S.  W.  314. 

20  People  V.  Central  Pac.  R.  Co., 
83  Cal.  393,  23  Pac.  303;  Miller  v. 
Pin  Mining  Co.,  2  Idaho  1206,  31 
Pac.  803;  Rothschild  v.  Grand 
Trunk  R.  Co.,  14  N.  Y.  S.  807; 
State  v.  Chicago  &c.  R.  Co.,  4  S. 
Dak.  261,  56  N.  W.  894,  46  Am.  St. 
783;  Saunders  v.  Sioux  City  &c. 
Co.,  6  Utah  431.  24  Pac.  532.  See 
ante,   §711. 

21  Hummel  v.  First  Nat.  Bank,  2 
Colo.  App.  571,  32  Pac.  12;  Calu- 
met Paper  Co.  v.  Knight  &c.  Co., 
43    111.    App.    566;    Dry    Dock    &c. 


Co.  v.  North  &c.  R.  Co.,  3  Misc. 
61,  22  N.  Y.  S.  556.  But  proof 
is  required  in  some  states  of  the 
due  incorporation  of  a  foreign 
corporation.  Bank  of  Jamaica  v. 
Jefferson,  92  Tcnn.  ^-2,1.  22  S.  W. 
211.  Zi^  Am.  St.  100.  See  Hummel 
V.  First  Nat.  Bank,  2  Colo.  App. 
571,  32  Pac.  72. 

22  Langhorne  v.  Richmond  City 
R.  Co.  (Va.),  19  S.  E.  122. 

23  Graham  v.  Boston  &c.  R.  Co., 
14  Fed.  753;  note  to  Bissit  v. 
Kentucky  &c.  Co.,  15  Fed.  353,  361; 
P'arnum  v.  Ballard  &c.  Shop,  12 
Gush.  (Mass.)  507;  MacDougall  v. 
Gardiner,  L.  R.  1   Ch.   D.   13. 

21  New  Albany  v.  Burke,  11 
Wall.  (U.  S.)  96,  20  L.  ed.  155; 
Stewart  v.  Hoyt,  111  U.  S.  Zll,  4 
Sup.  Ct.  519,  28  L.  ed.  461;  Dono- 
hoe  v.  Mariposa  &c.  Co.,  66  Cal. 
317,  5  Pac.  495. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


714 


ters  to  arlntration,-'  and  has  implied  power  to  execute  a  bond 
in  a  judicial  proceeding  in  which  it  is  interested.-^  So,  it  may 
appeal  or  refuse  to  appeal  a  case,  and  not  even  a  majority  of  the 
stockholders  can  have  an  appeal  dismissed  which  the  directors, 
acting-  in  good  faith,  have  ordered  to  be  taken  and  prosecuted 
to  final  determination  in  the  appellate  court.-''' 

§  714  (619).  Estoppel  to  deny  corporate  existence. — In  suits 
against  a  body  of  persons  as  a  corporation  where  they  assume 
to  act  as  a  corporation  under  color  of  an  apparent  organization, 
in  pursuance  of  a  law  authorizing  it,  they  are  generally  estopped 
to  set  up  the  irregularity  of  the  corporate  organization  as  a  de- 
fense to  the  corporate  liability  which  would  otherwise  have  at- 
tended their  actions.-^  And  a  person  who  enters  into  a  contract 
with  such  a  de  facto  corporation  is  usually  estopped  to  deny 
its  corporate  existence  in  a  suit  upon  that  contract.-^  Thus, 
while  it  is  true  that  persons  cannot  dispute  the  corporate  liabil- 
ity on  such  a  contract  because  of  the  unauthorized  or  irregular 
organization  of  the  company,  on  the  other  hand,  those  who  deal 


25  Alexandria  Canal  Co.  v. 
Swann,  5  How.  (U.  S.)  83,  12  L. 
ed.  60:  Boston  &c.  R.  Co.  v.  Nash- 
ua &c.  R.  Co..  139  Mass.  463,  31 
N.   E.   751. 

26  Collins    V.    Hammock.    59   Ala.  • 
448. 

27  Railway  Co.  v.  Ailing,  99  U. 
S.  463.  25  L.  ed.  438.  See  also 
Silk  Mfg.  Co.  V.  Campbell,  27  N. 
J.  L.  539.  Under  the  Ohio  Stat- 
ute stockholders  may  appeal  in 
certain  cases.  Henry  v.  Jennes,  47 
Ohio  St.   116.  24  N.   E.   1077. 

28  Blackburn  v.  Selma  &c.  R. 
Co..  2  Flip.  (U.  S.)  525,  Fed.  Cas. 
No.  1467;  Georgia  Ice  Co.  v.  Por- 
ter, 70  Ga.  637;  Pilliod  v.  Angola 
R.  &c.  Co..  46  Ind.  App.  719,  91  N. 
Ei.  829;  Kelley  v,  Newburyport 
Horse  R.  Co.,  141   Mass.  496,  6  N. 


E.  745;  Empire  Mfg.  Co.  v.  Sturat. 
46  Mich.  482,  9  N.  W.  527;  Niles 
V.  Benton  Harbor  R.  Co..  154 
Mich.  378,  117  N.  W.  937;  Griffin 
V.  Asheville  &c.  Co.,  Ill  N.  Car. 
434,  16  S.  E.  423.  See  ante,  §  215, 
also  3  Elliott  Ev..  §§  1932,  1940. 

29  Beekman  v.  Hudson  River 
&c.  Co.,  35  Fed.  3;  Cahall  v.  Citi- 
zens' &c.  Assn..  61  Ala.  232;  Im- 
boden  v.  Etowah  &c.  Mfg.  Co.,  70 
Ga.  86;  Smelser  v.  Wayne  &c. 
Tpk.  Co.,  82  Ind.  417;  Cravens  v. 
Eagle  &c.  Co.,  120  Ind.  6,  21  N.  E. 
891,  16  Am.  St.  298;  Keene  v.  Van 
Reuth,  48  Md.  184;  Butchers  &c. 
Bank  v.  MacDonald,  130  Mass. 
264;  Swartout  v.  Michigan  &c.  R. 
Co..  24  Mich.  389;  Lockwood  v. 
Wynkoop,  178  Mich.  388.  144  N. 
W.    846;    French    v.    Donohue,    29 


§715 


RAILROADS 


with  them  as  a  corporation  may  be  estopped  from  trcatin":  them 
as  partners.  If  the  corporation  was  organized  under  authority 
of  law,  persons  seeking  to  enforce  contracts  into  which  they 
have  entered  with  it  cannot,  as  a  rule,  take  advantage  of  any 
failure  to  observe  the  legal  formalities  necessary  to  a  valid  or- 
ganization, in  order  to  charge  the  shareholders  as  partners. •'*' 
But  where  the  organization  was  without  any  authority  of  law 
for  its  existence,  the  fact  that  the  persons  called  themselves  a 
corporation  will  not  enable  them  to  escape  from  personal  liabil- 
ity for  their  acts.^^ 

§  715  (620).  When  stockholders  may  sue. — As  already  inti- 
mated, suits  to  enforce  corporate  rights  or  to  avert  threatened 
wrongs  to  the  corporate  interests  should  be  brought  by  the  of- 
ficers of  the  corporation  in  its  name,  and  a  stockholder,  as  such, 
has  generally  no  right  to  sue. 2-  But  where  the  directors  refuse 
to  enforce  the  corporate  rights,"^  and  are  proceeding  ultra  vires. 


Minn.  Ill;  Griffin  v.  Asheville  &c. 
Co.,  Ill  N.  Car.  434.  16  S.  E.  423; 
McCord  &c.  Co.  v.  Glenn,  6  Utah 
139,  21  Pac.  500.  One  who  deahs 
with  a  corporation  as  existing  in 
fact,  is  estopped  to  deny  as 
against  the  corporation  that  it  has 
been  legally  organized.  Close  v. 
Glenwood  Cemetery,  107  U.  S. 
466,  2  Sup.  Ct.  267.  11  L.  ed.  408. 
per  Mr.  Justice  Gray.  See  also 
Kansas  City  &c.  R.  Co.  v.  Mixon 
&c.  Co.,  107  Ark.  48,  154  S.  W. 
205,  Ann.  Cas.  1914C,  1247.  Ante, 
§  215;  also  3  Elliott  Ev.,  §  1940. 

30  Humphreys  v.  Mooney,  5 
Colo.  282;  Planters'  &c.  Bank  v 
Padgett,  69  Ga.  159;  First  Nat 
Bank  v.  Almy,  117  Mass.  476 
Stout  V.  Zulick.  48  N.  J.  L.  599 
Second  Nat.  Bank  v.  Hall,  35  Ohio 
St.  158.  Ante,  §  215.  See  note  in 
29  Am.   St.  601. 


31  Lewis  V.  Tilton,  64  Iowa  220.  19 
N.  W.  911.  52  Am.  Rep.  436;  Hill  v. 
Beach.  12  N.  J.  Eq.  31;  Methodist 
Episcopal  Church  v.  Pickett,  19 
N.  Y.  482.  See  also  notes  in  29 
Am.  St.  602  and  17  L.  R.  A.  550. 
But  see  Winget  v.  Quincy  &c. 
Assn.,  128  111.  dl,  21  N.  E.  12. 

3  24  Thomp.  Corp.  (2nd  ed.), 
§4550;  Whites'  Supp.  Thomp. 
Corp.,  §  4550.  Sec  also  Wolf  v. 
Pennsylvania  R.  Co.,  195  Pa.  St.  91, 
45  Atl.  936;  McCloskey  v.  Snowden, 
212  Pa.  249,  61  Atl.  796,  108  Am.  St. 
867;  Johns  v.  McLester,  137  Ala. 
283,  34  So.  174,  97  Am.  St.  29  and 
elaborate    note. 

33  Dodge  V.  Woolsey,  18  How. 
(U.  S.)  331,  15  L.  ed.  401.  Detroit 
V.  Dean.  106  U.  S.  537.  1  Sup.  Ct. 
560,  27  L.  ed.  300;  Morgan  v.  Rail- 
road Co.,  1  Woods  (U.  S.)  IS, 
Fed.    Cas.    No.    9806;    Shawhan    v. 


ACTIONS    BV    AND   AGAINST    CORPORATIONS 


§715 


or  are  fraudulently  combining-  with  others  to  despoil  the  corpora- 
tion,-'-*  a  stockholder  may  maintain  a  suit  in  his  own  name  to 
enforce  those  rights,-"'^  especially  if  he  can  show  that  irremediable 
loss  will  accrue  if  he  is  not  allowed  to  bring  suit.'^'^  But  it  has 
been  held  that  the  corporation  should,  in  such  a  case,  be  made 


Zinn,  79  Ky.  300.  It  must  appear 
that  their  refusal  is  a  breach  of 
trust  on  their  part  and  not  a 
mere  error  of  judgment  in  a  mat- 
ter properly  within  their  discre- 
tion. Pacific  R.  Co.  V.  Missouri 
Pac.  R.  Co..  2  McCrary  (U.  S.) 
227,  12  Fed.  641;  Dimpfell  v.  Ohio 
&c.  R.  Co.,  110  U.  S.  209.  3  Sup. 
Ct.   573.   28   L.    ed.    121. 

3-i  Where  such  a  state  of  facts 
is  shown  as  to  clearly  indicate 
that  the  corporate  management  is 
adverse  or  indifferent  to  the  in- 
terests  of  the  corporation  and 
that  it  would  be  useless  to  re- 
quest the  corporation  to  sue  or  in 
other  exceptional  cases  where  re- 
quest would  be  futile,  a  stock- 
holder may  sue  in  the  first  in- 
stance. Barr  v.  New  York  &c.  R. 
Co..  96  N.  Y.  444;  Barr  v.  Pitts- 
burgh-&c.  Co..  40  Fed.  412;  Davis 
V.  Gemmel.  70  Md.  356.  17  Atl. 
259;  Wilcox  v.  Bickel.  11  Nebr. 
154.  8  N.  W.  436;  Crumlish  r. 
Shenandoah  Valley  Railroad  Co., 
28  W.  Va.  623;  Doud  v.  Wiscon- 
sin &c.  R.  Co.,  65  Wis.  108.  56  Am. 
Rep.  620;  Fleming  v.  Black  War- 
rior Copper  Co..  15  Ariz.  1,  136 
Pac.  273.  51  L.  R.  A.  (N.  S.)  99. 
and  numerous  cases  there  cited  in 
note  on  page  103.  et  seq.  See  al- 
so Continental  Securities  Co.  v. 
Belmont,  206  N.  Y.  7.  99  N.  E.  138. 
51  L.  R.  A.  (N.  S.)  112  and  note. 
Ann.    Cas.    1914A,    777n.      But,    un- 


less this  is  true,  a  request  should 
precede  suit  and  an  earnest  efifort 
should  first  be  made  to  have  the 
corporation  si;e.  Taylor  v. 
Holmes,  127  U.  S.  489,  8  Sup.  Ct. 
1192,  32  L.  ed.  179;  Dimpfell  v. 
Ohio  &c.  R.  Co..  110  U.  S.  209, 
3  Sup.  Ct.  573.  28  L.  ed.  121 ;  Foote 
V.  Cunard  &c.  Co.,  17  Fed.  46; 
Chicago  V.  Cameron,  120  111.  447; 
and  numerous  authorities  cited  in 
note  51  L.  R.  A.  (N.  S.)  100-102. 
Kelly  V.  Thomas,  234  Pa.  419,  83 
Atl.  307,  51  L.  R.  A.  (N.  S.)  122 
and  note.  See  also  ante,  §§  190,  192. 

35  Hawes  v.  Oakland,  104  U.  S. 
450,  26  L.  ed.  827,  where  the  court 
states  in  the  form  of  distinct 
propositions  what  must  be  shown 
in  order  to  enable  a  stockholder 
to  sue. 

3G  Detroit  v.  Dean,  106  U.  S. 
537,  542,  1  Sup.  Ct.  650,  27  L.  ed. 
300.  It  is  suggested  that  each 
probable  loss  from  a  failure  to 
permit  the  bringing  of  a  suit 
against  an  outsider,  to  recover 
damages  for  past  injuries,  would 
be  very  difficult  to  show  in  almost 
all  cases.  But  see  Chicago  v.  Camer- 
on, 120  111.  447,  458,  11  N.  E.  899. 
where  the  stockholders  were  permit- 
ted to  sue  to  cancel  bonds  wrongfully 
issued  twelve  years  before.  See 
generally  upon  the  subject,  the  elab- 
orate note  in  97  .Am.  St.  29.  et 
seq.  See  as  to  right  of  transferee 
to  have  transfer  of  stocks  and  en- 


§716 


RAILROADS 


10 


a  party  defendant/''"   although   the  relief  prayed   is  reall}'   in   its 
favor.2^ 


§  716  (621),  Service  of  process. — Process  cannot,  of  course, 
be  served  upon  a  corporation  aggregate  directly.  At  common 
law  service  was  required  to  be  made  upon  some  agent  bearing 
the  relation  to  the  corporation  of  a  head  officer,  whose  knowledge 
would  be  that  of  the  corporation. ^^^  The  statutes  of  the  various 
states  prescribe  the  agents  of  the  company  upon  whom  service 
of  process  shall  be  made  in  order  to  be  valid  as  service  upon  the 
company  itself.  The  statutes  resemble  each  other  though  they 
vary  much  in  detail.  Where  the  method  of  serving  process  upon 
a  corporation  is  prescribed  by  statute  that  method  is  generally, 
but  not  always,  held  to  be  exclusive  of  any  other.'"     The  statute 


force  the  right  in  the  courts  of 
another  state  than  that  creating 
the  corporation,  Westminister 
Nat.  Bank  v.  New  England  &c. 
Works,  IZ  N.  H.  465,  62  Atl.  971, 
111  Am.  St.  637. 

37  Hawes  v.  Oakland,  104  U.  S. 
450,  26  L.  ed.  827 ;  Helton  v.  Wallace, 
17  Fed.  61;  note  in  97  Am.  St. 
45;  Alorshead  v.  Southern  Pac.  R. 
Co.,  123  Fed.  350;  Byers  v.  Rol- 
lins, 13  Colo.  22;  Shawhan  v.  Zinn, 
79  Ky.  300;  Kennebec  &c.  R.  Co. 
V.  Portland  &c.  R.  Co.,  54  Maine 
173;  Slattery  v.  St.  Louis  &c.  Co., 
91  Mo.  217,  4  S.  W.  79,  60  Am.  Rep. 
245;  Mount  v.  Radford  Trust  Co., 
93  Va.  427,  25  S.  E.  244.  See  also 
generally  as  to  rule  that  the  cor- 
poration should  be  made  a  party 
defendant  where  the  rights  of  the 
coniplaining  stockholder  are  de- 
rivative. Kelly  V.  Thomas.  234 
Pa.  St.  419,  83  Atl.  307,  51  L.  R. 
A.  (N.  S.)  122,  and  many  other 
cases  there  cited  in  note. 

3«  Jones    V.    Bolles,    9   Wall.    (U. 


S.)  364,  19  L.  ed.  734.  See  also 
Flynn  v.  Brooklyn  City  R.  Co., 
158  N.  Y.  493,  53  N.  E.  520.  Re- 
lief can  not  be  granted  unless  the 
corporation  is  brought  before  the 
court  so  that  the  decree  may  con- 
clude it.  Shawhan  v.  Zinn,  79  Ky. 
300.  But  compare  Toledo  Trac. 
&c.  Co.  V.  Smith,  205  Fed.  643. 

3!>  Boyd  V.  Chesapeake  &c.  Can- 
al Co.,  17  Md.  195,  75  Am.  Dec. 
646;  Newell  v.  Great  Western  R. 
Co.,  19  Mich.  336;  Heltzcll  v.  Chi- 
cago &c.  R.  Co..  11  AIo.  315; 
Glaize  v.  South  Carolina  R.  Co.,  1 
Strolih.  Law  (S.  Car.)  70;  Newby 
V.  Van  Oppen.  L.  R.  7  Q.  B.  293. 
Service  on  the  officers  of  a  do- 
mestic corporation  was  held  to  be 
service  upon  the  corporation,  but 
it  seems  that  jurisdiction  over  a 
foreign  corporation  could  not  be 
this  acquired  under  the  early 
common  law.  1  Elliott  Gen.  Prac. 
§  359. 

'Ki  Union  Pac.  R.  Co.  v.  Pills- 
bury,  29  Kans.  652;  Hartford   Fire 


11 


ACTIONS   BY   AND  AGAINST   CORPORATIONS 


§716 


of  Indiana  provides  that  service  may  be  made  upon  the  president 
or  other  chief  officers,  or  if  its  chief  officer  is  not  found  in  the 
county,  then  upon  its  cashier,  treasurer,  director,  secretary,  clerk, 
general  or  special  agent.  If  none  of  these,  officers  are  to  be  found 
in  the  county,  process  may  be  served  upon  any  person  authorized 
to  transact  business  in  the  name  of  such  corporation.^^  Under 
this  statute  it  is  held  that  service  upon  the  conductor  of  a  pas- 
senger train,'*-  or  a  freight  train, ^^  or  upon  a  local  freight 
agent,"*'*  is  valid  and  effective  as  service  upon  the  railroad  com- 
pany by  which  he  is  employed  i"*^  since  the  term  "special  agent" 
must  be  held  to  include  persons  holding  such  a  special  author- 
ity.'*'    But  it  has  been  held  by  the  Supreme  Court  of  Michigan 


Ins.  Co.  V.  Owen,  30  Mich.  441; 
Cosgrove  v.  Tebo  &c.  R.  Co.,  54 
Mo.  495;  North  v.  Cleveland  &c. 
R.  Co..  10  Ohio  St.  548;  Congar 
V.  Galena  &c.  R.  Co.,  17  Wis.  477. 
And  the  method  prescribed  in  a 
special  statute  is  held  to  be  ex- 
clusive of  the  methods  prescribed  in 
a  prior  general  statute.  St.  Paul 
&c.  R.  Co.,  In  re,  36  Minn.  85,  30 
N.  W.  432.  Contra,  State  v.  Hanni- 
bal &c.  R.  Co.,  51  Mo.  532;  Jefifer- 
sonville  &c.  R.  Co.  v.  Dunlap,  29 
Ind.  426;  Fowler  v.  Detroit  &c.  R. 
Co.,  7  Mich.  79. 

41  Burns'  R.  S.  Ind.  1914,  §319. 

4  2  New  Albany  &c.  R.  Co.  v. 
Grooms,  9  Ind.  243 ;  N^w  Albany 
&c.  R.  Co.  v.  Tilton,  i2  Ind.  3,  74 
Am.  Dec.  195.  So,  service  on  con- 
ductor on  electric  interurban  line  is 
good  imder  the  Michigan  statute. 
Halladay  v.  Detroit  &c.  R.,  155  Mich. 
436,  119  N.  W.  445. 

-i-"  Ohio  &c.  R.  Co.  V.  Quier,  16 
Ind.  440. 

44  And  this  is  true  even  though 
there    be    a    superintPndent    and    H?- 


rector  of  the  company  residing  in 
the  same  county.  Toledo  &c.  R.  Co. 
v.  Owen,  43  Ind.  405.  For  other 
cases  holding  service  of  process  up- 
on a  local  depot  or  station  agent 
valid,  see  St.  Louis  &c.  R.  Co.,  Ex 
parte,  40  Ark.  141;  Smith  v.  Chi- 
cago &c.  R.  Co.,  60  Iowa  512,  15  N. 
W.  303;  Hudson  v.  St.  Louis  &c 
R.  Co.,  53  Mo.  525 ;  Missouri  Pac. 
R.  Co.  V.  Collier,  62  Tex.  318;  Ruthe 
V.  Green  Bay  &c.  R.  Co..  Zl  Wis. 
344.  In  St.  Louis  &c.  R.  Co.  v.  De 
Ford,  ,38  Kans.  299,  16  Pac.  442,  it 
was  held  that  service  of  a  summons 
upon  a  section  foreman,  as  "a  local 
SMperintendent  of  repairs"  of  a  rail- 
1  oad  company  was  a  valid  service  up- 
/>n  the  company.  Contra,  Richard- 
son V.  Burlington  &c.  R.  Co.,  8  Iowa 
260. 

45  The  return  must  state  the 
agency  held  by  the  person  upon 
whom  service  was  made  or  it  will 
be  held  insufficient.  Dickerson  v. 
Burlington  &c.  R.  Co..  43  Kans.  702. 
23   Pac.   936. 

'fiNew  All)any  &c.  R.  Co.  v. 
•  irooms,    9    Ind.    243.      Local    agent 


§716 


RAILROADS 


12 


that  the  "general  or  special  agent"  of  a  corporation  upon  whom 
a  summons  in  garnishment  may  be  served  under  a  similar  statute- 
is  an  agent  having  a  general  or  special  controlling  authority, 
either  generally  or  in  respect  to  some  department  of  corporate 
business,  and  that  a  ticket  agent  is  not  such  an  agent. ^"  So,  it 
has  been  held  that  where  the  statute  provides  for  service  upon 
a  "passenger  or  freight  agent"  of  the  company  it  refers  to  such 
a  person  in  the  service  of  the  company  and  that  in  an  action 
against  the  last  of  several  connecting  carriers  service  upon  the 
agent  of  the  first  carrier  is  insufficient.'*'^  Service  must  usually 
be  made  upon  the  officers,  or  agents,  or  persons  in  possession 
of  the  offices  under  claim  of  rights,  who,  having  control  of  the 
business  and  property  of  the  company,  are  in  a  position  to  care 
for  and  protect  its  rights.  Service  upon  persons  claiming  to  be 
officers  de  jure,  but  not  having  possession  of  the  offices  they 
claim-  is  not  sufficient."*^  In  the  case  of  foreign  corporations  con- 
ducting business  within  the  jurisdiction,  the  head  officer  or  man- 
aging  agent   in    charge   of   such   business    is   the    proper   person 


must  be  in  employ  of  company  at  the 
time.  Douglas  R.  Co.  v.  Pennington 
&  Evans,  6  Ga.  App.  854,  65  S.  E. 
1084.  It  is  lield.  however,  that  ser- 
vice may  be  made  on  a  local  agent 
although  the  company  is  in  the  hands 
of  a  receiver.  Ennest  v.  Pare  Mar- 
quette R.  Co.,  176  Mich.  398,  142 
N.  W.  567,  47  L.  R.  .X.  (N.  S.)  179, 
Ann.  Cas.  1915B,  594n.  See  also  as 
to  service  upon  local  agents  gener- 
ally. Cazort  &c.  Co.  v.  St.  Louis  &c. 
R.  Co.,  100  Ark.  395,  140  S.  W. 
277;  Dowell  v.  Chicago  &c.  R.  Co., 
83  Kans.  562,  112  Pac.  136;  Pe- 
cos &c.  R.  Co.  V.  Cox.  105  Tex.  40, 
143    S.   W.   606,    157    S.    W.   745. 

•♦^Lake  Shore  &c.  R.  Co.  v.  Hunt, 
39  Mich.  469.  See  also  Abraliam 
Bros.  V.  Southern  R.  Co.,  149  Ala. 
547,  42  So.  837. 

4S  Louisville   &c.  R.   Co.  v.   Chest- 


nut &  Bro.,  115  Ky.  43,  12  S.  W. 
351.  See  also  Slaughter  v.  Canadian 
Pac.  R.  Co.,  106  Minn.  263,  119  N. 
W.  398.  But,  under  the  particular 
circumstances  of  the  case,  a  construc- 
tion company  was  held  the  agent  of 
the  railroad  company  so  as  to  make 
the  latter  subject  to  suit  and  ser- 
vice upon  the  officers  of  the  former 
good  in  a  suit  against  the  latter  in 
Buie  V.  Chicago  &c.  R.  Co.,  95  Tex. 
51,  65  S.  W.  27,  55  L.  R.  A.  861. 
See  also  Lehigh  Min.  &-c.  Co.  v. 
Kelly,  160  U.  S.  327,  16  Sup.  Ct. 
307,  40  L.   ed.  444. 

••0  Berrian  v.  Methodist  Soc.  in 
Xrw  York,  4  Abb.  Prac.  (X.  Y.) 
424.  But  it  has  been  held  that  the 
corporation  can  not  question  that  the 
service  was  on  a  proper  agent  where 
its  general  counsel  had  .stated  to 
plaintiff's    counsel    that    such    agent 


13 


ACTIONS   BY   AND  AGAPNST  CORPORATIONS 


717 


upon  whom  to  serve  process,  in  the  absence  of  any  statutory 
provision  designating  the  officer  or  agent  upon  whom  service 
may  be  made.^*^  But  where  there  is  a  general  statute 
providing  for  the  service  of  process  upon  corporate  agents,  and 
there  are  no  special  provisions  relative  to  service  upon  foreign 
corporations,  such  corporations  are  usually  within  the  operation 
of  the  general  statute. ^^ 

§  717  (621a).  Resident  agent — Rule  in  federal  courts. — ]\lost 
of  the  states  have  statutes  regulating  the  method  of  serving  for- 
eign corporations  with  process.  These  statutes  usually  require 
that  foreign  railroad  or  other  corporations  acting  within  their 
jurisdiction  shall  keep  specified  agents  therein  who  are  fully 
authorized   to   accept  service  of   process. ^^     Where   such   is   the 


was  authorized  to  accept  service. 
Taylor  &c.  Co.  v.  Adams  Express 
Co.,  71   N.  J.  L.  523,  59  Atl.   10. 

50  St.  Clair  V.  Cox,  106  U.  S.  350, 
355,  1  Sup.  Ct.  354,  27  L.  ed.  222; 
Weight  V.  Liverpool  &c.  Ins.  Co.,  30 
La.  Ann.  1186;  Newby  v.  Van  Op- 
pen,  L.  R.  7  Q.  B.  293;  New  York 
&c.  R.  Co.  V.  Purdy,  18  Barb.  (N. 
Y.)  574.  See  generally  Whites' 
Supp.  (8  Thomp.  Corp.),  §6759. 

<5i  Alidland  Pac.  R.  Co.  v.  McDer- 
mid,  91  III.  170;  Hannibal  &c.  R.  Co. 
V.  Crane,  102  111.  249;  Chicago  &c.  R. 
Co.  V.  Manning,  23  Nebr.  552,  37  N. 
W.  462.  But  a  ticket  agent  of  a 
local  railway  company,  though  he 
sells  through  tickets,  also  over  a  for- 
eign line,  is  not  necessarily  a  ticket 
agent  of  such  foreign  line  under  a 
statute  authorizing  service  on  a  tick- 
et agent  of  a  foreign  line  in  the 
count}'.  Slaughter  v.  Canadian  Pac. 
R.  Co.,  106  Minn.  263,  119  N.  W.  398. 
Compare  Hillary  v.  Great  Northern 
R.  Co.,  64  Minn.  361,  67  N.  W.  80, 
32  L.  R.  A.  448. 


53  Such  a  regulation  is  within  the 
constitutional  power  of  a  state.  La- 
fayette Ins.  Co.  v.  French,  18  How. 
(U.  S.)  404,  15  L.  ed.  451;  Hannibal 
&c.  R.  Co.  V.  Crane,  102  111.  249,  40 
Am.  Rep.  581;  Gibson  v.  Manufac- 
turers' &c.  Co.,  114  Mass.  81,  10  N.  E. 
729;  1  Elliott- Gen.  Prac,  §359,  and 
numerous  authorities  there  cited. 
See  also  ante,  §  33;.  Brown-Ketcham 
Iron  Works  v.  George  B.  Swift  Co., 
53  Ind.  App.  630.  100  N.  E.  584,  860 : 
Whitehurst  v.  Kerr,  153  N.  Car.  76, 
68  S.  E.  913.  But  it  is  held  that 
the  Idaho  statute  does  not  apply  to 
railroad  companies.  Boyer  v.  Nor- 
thern Pac.  R.  Co.,  8  Idaho  74,  66 
Pac.  826,  70  L.  R.  A.  691,  and  note 
on  the  general  subject.  A  corpora- 
tion which  does  business  in  a  state 
whose  general  laws  prescribe  a  cer- 
tain method  of  serving  process  upon 
foreign  corporations  will  be  held  t.i 
have  submitted  to  the  provisions  oi 
the  law.  Weymouth  v.  Washington 
&c.  R.  Co..  1  Mc Arthur  (D.  C.)  19. 
As     to     who     is     such     an     agent 


§717 


RAILROADS 


14 


case  service  ujjon  such  agent  is  sufficient  to  support  jurisdiction 
in  an  action  against  a  foreign  corporation  either  in  the  state 
courts,  or,^^  when  not  inconsistent  with  the  acts  of  congress,  in 
the  federal  court  sitting  in  such  state. ^^  If  no  agent  is  designated 
to  receive  service  of  process,  as  required  by  law,  service  may  be 
made  upon  a  managing  agent  as  at  common  law.^*^  Where  for- 
eign cor])orations  engaged  in  business  in  a  state  whose  law  pro- 
vides that  they  may  be  summoned  by  process  served  upon  an 
agent  in  charge  of  their  business,  it  was  held  that  they  were 
"found"   in   the   district   in   which   such   agent  is  doing  business 


within  the  meaning  of  such  statutes, 
see  McSwain  v.  Adams  Grain  Co., 
93  S.  Car.  103,  16  S.  E.  117,  Ann. 
Cas.  1914D,  981,  and  cases  there 
cited  in  note.  Some  cases  hold  that 
a  mere  solicitor  of  railroad  business 
is  not  such  an  agent.  Booz  v.  Tex- 
as &c.  R.  Co.,  250  111.  Zld,  95  N. 
E.  460;  Arrow  Luml)er  &c.  Co.  v. 
Union  Pac.  R.  Co.,  53  Wash.  629, 
102  Pac.  650.  But  other  decisions 
are  to  the  effect  that  he  is.  Davis 
V.  Jacksonville  &c.  R.  'Co.,  126  Mo. 
69,  28  S.  W.  965;  Missouri  &c.  R. 
Co.  V.  Demere  (Tex.  Civ.  App.), 
145  S.  W.  623. 

•"'4  Reyer  v.  Odd  Fellows  &c.  Assn., 
157  Mass.  367,  32  N.  E.  469,  34  Am. 
St.  288;  Chicago  &c.  R.  Co.  v.  Wal- 
ker, 9  Lea  (Tenn.)  475;  Shane  v. 
Mexican  Internat.  R.  Co.,  8  Tex. 
Civ.  App.  441,  28  S.  W.  456. 
See  also  as  to  the  effect  that  the 
company  is  estopped  from  setting 
up  its  failure  to  comply  with  the 
law,  Fisk  v.  Chicago  &c.  R.  Co..  53 
Barb.  (N.  Y.)  513;  Ehrman  v.  Teu- 
tonic &c.  Co.,  1  Fed.  471 ;  American 
&c.  Co.  V.  Lea,  56  Ark.  539,  20  S.  W. 
416.  As  to  effect  of  failure  of  state 
agent    to    receive    service,    see    Na- 


tional Surety  Co.  v.  State,  120  Fed. 
593,  61  L.  R.  A.  394. 

.55  Schollenberger,  Ex  parte,  96  L". 
S.  369.  24  L.  ed.  853;  Barrow  S.  S. 
Co.  V.  Kane,  170  U.  S.  100,  18  Sup. 
Ct.  526,  42  L.  ed.  964;  Van  Dres- 
ser v.  Oregon  R.  &c.  Co.,  48  Fed. 
205. 

56  State  V.  Pennsylvania  R.  Co., 
42  N.  J.  L.  490;  New  York  &c.  R. 
Co.  v.  Purdy,  18  Barb.  (N.  Y.)  574; 
Thomas  v.  Placerville  &c.  Mining 
Co.,  65  Cal.  600.  And  a  statute  au- 
thorizing service  on  certain  designa- 
ted agents  has  been  held  not  to  be 
exclusive.  Holmes  Church  v.  Met- 
ropolitan &c.  Assn.,  12  Cal.  App.  445, 
107  Pac.  633;  Sommerville  Lumber 
Co.  v.  Mackres,  86  Vt.  466,  85  Atl. 
977;  Barrett  Mfg.  Co.  v.  Kennedy, 
li  Wash.  503,  131  Pac.  1161.  The 
statutes  of  some  of  the  states  require 
service  upon  a  "managing  agent" 
within  the  jurisdiction.  There  is 
considerable  conflict  in  the  cases  as 
to  what  constitutes  ri  managing 
agent.  The  superintendent  and  gen- 
eral manager  of  a  foreign  corpora- 
tion owning  a  road  within  the  state 
are  lield  to  be  such  agents.  Bank 
of  Commerce  v.  Rutland  &c.  R.  Co., 


15 


ACTIONS    nV    AXD  AGAINST   CORPORATIONS 


§717 


within  the  meaning  of  a  former  act  of  congress,  and  that  service 
of  process  upon  such  an  agent  would  confer  jurisdiction  upon 
the  United  States  courts,  to  the  same  extent  that  the  state 
courts  would  acquire  jurisdiction  by  a  similar  service  of  pro- 
cess.^" But  the  act  of  August  13,  1888,  has  changed  this  rule  by 
providing  that  "where  the  jurisdiction  is  founded  only  on  the 
fact  that  the  action  is  between  citizens  of  different  states,  suits 


10  How.  Prac.  (N.  Y.)  1.  So  of 
the  vice-president  and  general  sup- 
erintendent. Norfolk  &c.  R.  Co.,  v. 
Cottrell,  83  Va.  512,  3  S.  E.  123.  Or, 
a  general  passenger  agent  or  other 
person  having  general  control  of  a 
particular  department  or  branch  of 
the  business.  Tuchband  v.  Chicago 
&c.  R.  Co.,  lis  N.  Y.  437,  22  N.  E. 
360.  But  see  Maxwell  v.  Atchison 
&c.  R.  Co.,  34  Fed.  286.  In  Ohio 
it  seems  that  a  suit  in  personam  can 
not  be  maintained  against  a  foreign 
corporation  unless  it  has  a  managing 
agent  within  the  state.  Barney  v. 
New  Albany  &c.  R.  Co.,  1  Handy 
(Ohio)  571.  Ticket  sellers  have 
been  held  not  to  be  managing  agents. 
Doty  V.  Michigan  Cent.  R.  Co.,  8 
Abb.  Prac.  (N.  Y.)  427;  Mackereth 
V.  Glasgow  &c.  R.  Co.,  L.  R.  8 
Exch.  149.  But  see  Smith  v.  Chi- 
cago &c.  R.  Co.,  60  Iowa  512,  15 
N.  W.  303 ;  Tuchband  v.  Chicago  &c. 
R.  Co.,  115  N.  Y.  440,  22  N.  E.  360, 
Flynn  v.  Hudson  River  R.  Co.,  6 
How.  Prac.  (N.  Y.)  308;  Brown  v. 
Chicago  &c.  R.  Co.,  12  N.  Dak.  61, 
95  N.  W.  153,  102  Am.  St.  364  (sta- 
tion agent  is)  ;  Missiouri  Pac.  R. 
Co.  V.  Collier,  62  Tex.  318,  and  a 
baggage  master  is  not.  See  further 
on  this  subject,  1  Elliott  Gen.  Prac, 
§  359,  Whites'  Supp.  Thomp  Corp., 
§  6762,     and     note     to     Hampson     v. 


Weare,  66  Am.  Dec.  116,  120.  See 
also  New  York  &c.  R.  Co.  v.  Fre- 
mont &c.  R.  Co.,  66  Nebr.  159.  92 
N.  W.  131,  59  L.  R.  A.  939,  and 
note ;  Brown  v.  Chicago  &c.  R.  Co., 
12  N.  Dak.  61,  95  N.  W.  153,  102 
Atn.  St.  561,  and  note  to  Abbeville 
&c.  Power  Co.  v.  Western  &c.  Co.. 
85  Am.   St.  930-935. 

^"  Schollenberger,  Ex  parte,  96  U. 
S.  369,  24  L.  ed.  853;  McCoy  v.  Cin- 
cinnati &c.  R.  Co.,  13  Fed.  3;  Lung 
Chung  V.  Northern  Pac.  R.  Co.,  IV 
Fed.  254;  Block  v.  Atchison  &c.  R. 
Co.,  21  Fed.  529;  Van  Dresser 
V.  Oregon  R.  &c.  Co.,  48  Fed.  202. 
In  this  latter  case  it  was  held  that  a 
foreign  railroad  company  which  had 
formed  a  combination  with  other 
lines  extending  into  the  state  of  Ore- 
gon, and  which,  through  its  agents 
was  engaged  in  making  contracts  in 
that  state  for  the  carriage  of  passen- 
gers and  freight  over  such  connect- 
ing lines  and  its  own  road  was 
bound  by  a  service  of  summons  up- 
on the  agent  through  whom  such 
contracts  were  made.  But  see  St. 
Clair  v.  Cox.  106  U.  S.  350,  1  Sup. 
Ct.  354,  27  L.  ed.  222.  In  Globe 
Accident  Ins.  Co.  v.  Reid,  19  Ind. 
App.  203,  49  N.  E.  291,  292  (citin-? 
text)  it  is  held  that  the  corporation 
is  "foun;;"  in  the  state  where  it  ha 5 
an    agent   and   is   doing   business  and 


§718 


RAILROADS 


16 


shall  be  broug-ht  only  in  the  district  of  the  residence  of  either 
the  plaintiff  or  defendant/'^ 

§  718  (621b).''''  Agent  need  not  reside  in  state — Agent  casu- 
ally in  state. — It  is  not  necessary  that  the  officer  or  agent  upon 
whom  process  is  served  shall  reside  within  the  jurisdiction,  if 
he  has  the  control  of  the  business  of  the  corporation  at  a  particu- 
lar place  therein,  at  which  his  official  residence  as  an  officer  of 
the  corporation  is  established.*"'  On  the  other  hand,  service  upon 
an  officer  or  agent  casually  within  the  state,  when  he  is  not 
there  in  the  performance  of  the  duties  of  his  office,  and  is  not 
authorized  in  any  way  to  submit  the  corporation  to  the  juris- 
diction of  the  courts,  is  not  such  service  as  will  bind  a  foreign 
Cdrporation.  which  has  no  office  and  transacts  no  business  within 
the  state. '^^     Thus,  in  a  recent  case,  where  a  director  was  casu- 


is  sued.  See  Eel  River  R.  Co.  v. 
State,  143  Ind.  231,  42  N.  E.  617. 
See  also  Buie  v.  Chicago  &c.  R.  Co., 
95  Tex.  51,  65  S.  W.  27,  55  L.  R.  A. 
861. 

58  McCormick  &c.  Co.  v.  Walthers, 
134  U.  S.  41,  10  Sup.  Ct.  485,  33 
L.  ed.  833 ;  Shaw  v.  Quincy  Min- 
ing Co.,  145  U.  S.  444,  12  Sup.  Ct. 
935,  36  L.  ed.  768;  Construed  in 
Southern  Pac.  Co.  v.  Denton,  146 
U.  S.  202,  13  Sup.  Ct.  44,  36  L.  ed. 
942.  See  post,  §  720.  Also  Green  v. 
Chicago  &c.  R.  Co.,  205  U.  S.  530, 
27  Sup.  Ct.  595;  Great  Southern  &c. 
Co.  V.  Jones,  177  U.  S.  449,  20  Sup. 
Ct.  690,  44  L.  ed.  842;  Wells  Co.  v. 
Gastonia  &c.  Co.,  198  U.  S.  177,  25 
Sup.  Ct.  640,  49  L.  ed.  1003;  St. 
Louis  &c.  R.  Co.  V.  Alexander,  227 
U.  S.  218,  57  L.  ed.  486,  33  Sup.  Ct. 
245;  Hagstoz  v.  Mutual  L.  Ins.  Co., 
179  Fed.  569;  Twin  Lakes  Land  &c. 
Co.  V.  Dohner,  242  Fed.  399;  Albert 
V.  Bascom,  245  Fed.  149;  Rush  v. 
Foos  Mfg  Co.,  20  Ind.  App.  515,  51 


N.  E.  143,  147.  Privilege  may  be 
waived.  Horn  v.  Pere  Marquette  R. 
Co.,  151  Fed.  627;  Pennsylvania  R. 
Co.  V.  Swift  &c.  Co.,  242  Fed.  92. 

^9  Part  of  this  section  was  part  of 
§  621   in  the  first  edition. 

<>•!  Porter  v.  Chicago  &c.  R.  Co..  1 
Nebr.  14;  Governor  v.  Raleigh  &c. 
R.  Co.,  3  Ired.  Eq.  (N.  Car.)  471. 
See  also  Premo  &c.  Mfg.  Co.  v. 
Jersey  &c.  Co.,  200  Fed.  352,  43  L. 
R.  A.  (N.  S.)  1015  (or  if  he  is  in 
the  state  representing  the  corpora- 
tion in  regard  to  the  particular  con- 
tract on  which  the  action  is  brought). 

61  Fitzgerald  &c.  Construction  Co. 
v.  Fitzgerald,  137  U.  S.  98,  11  Sup. 
Ct.  36,  39,  34  L.  ed.  608;  Goldey  v. 
Morning  News,  42  Fed.  112,  156  U. 
S.  518,  15  Sup.  Ct.  5.S9,  39  L.  ed. 
517  (on  appeal);  Ostrander  v. 
Deerfield  Lumber  Co..  206  Fed.  540; 
Dallas  V.  .Atlantic  &c.  R.  Co.,  2  Mc- 
-Arthur  (D.  C.)  146;  Midland  Pac. 
K\  Co.  V.  McDermid.  91  III.  170; 
F.dwards   v.    Schillinger,  245    111.   231, 


17 


ACTIONS   BV   AND   AGAINST   CORPORATIONS 


§718 


ally  within  the  state  for  a  few  days,  but  the  corporation  did  no 
business  there  and  had  no  property  within  the  state,  service  on 
such  director  was  held  insufficient  by  the  supreme  court  of  the 
United  States.^- 


91  N.  E.  1048,  33  L.  R.  A.  (N.  S.) 
895,  137  Am.  St.  308;  Kendall  v. 
Orange  Judd  Co.,  118  Minn.  1,  136 
N.  W.  291;  Newell  v.  Great  West- 
ern R.  Co.,  19  Mich.  336;  Latimer  v. 
Union  Pac.  R.  Co.,  43  Mo.  105,  97 
Am.  Dec.  378;  Barnes  v.  Mobile  &c. 
R.  Co..  12  Hun  (N.  Y.)  126;  Phil- 
lips V.  Burlington  Library  Co.,  141 
Pa.  St.  462,  21  Atl.  640.  But  see 
Schickle  &c.  Co.  v.  Wiley  &c.  Co.,  61 
Mich.  226.  1  Am.  St.  571;  KIopp  v. 
Creston  &c.  Co.,  34  Nebr.  808.  52  N. 
W.  819,  33  Am.  St.  666;  Pope  v. 
Terre  Haute  &c.  Co..  87  N.  Y.  137; 
Smith  V.  Western  Pac.  R.  Co.,  154 
App.  Div.  130,  139  N.  Y.  S.  129; 
American  Food  &c.  Co.  v.  American 
Milling  Co.,  151  Wis.  385,  138  N.  W. 
1123.  See  note  in  70  L.  R.  A.  513, 
532.  In  Chicago  &c.  R.  Co.  v.  Wal- 
ker, 9  Lea  (Tenn.)  475,  it  was  held 
that  service  upon  the  "Southern 
passenger  agent"  of  defendant  com- 
pany in  an  action  for  breach  of  a 
contract  entered  into  with  him,  was 
invalid  because  of  his  lack  of  authori- 
ty to  receive  service  of  process.  The 
agent  had  no  authority  to  sell  tick- 
ets for  his  principal,  and  had  no 
regular  place  of  business.  His  busi- 
ness was  to  travel  over  the  territory 
south  of  the  Ohio  river,  and  over 
Virginia,  Arkansas  and  Texas,  and 
induce  travelers  to  take  a  route 
which  led  over  his  road,  to  assist 
them  in  checking  their  baggage  and 
to  conduct  them  to  the  nearest  tick- 
et office  where  a  ticket  over  his  road 


could  be  purchased.  But  see  Van 
Dresser  v.  Oregon  R.  &c.  Co.,  48 
Fed.  202.  In  United  States  Graphite 
Co.  V.  Pacific  &c.  Co.,  68  Fed.  442, 
the  rule  stated  in  the  text  was  held 
applicable  although  the  officer  served 
was  in  the  state  on  business  of  the 
corporation,  which,  however,  had  no 
office  or  agency  there.  See  also 
Goldey  v.  Morning  News,  156  U.  S. 
518,  15  Sup.  Ct.  559,  39  L.  ed.  517; 
Clews  V.  Woodstock  &c.  Co.,  44  Fed. 
31;  Fidelity  Trust  &c.  Co.  v.  Mobile 
St.  R.  Co.,  53  Fed.  850;  Eirich  v. 
Donnelly  &c.  Co.,  104  Fed.  1  ;  Con- 
tra, Gravely  v.  Southern  &c.  Co.,  47 
La.  Ann.  389,  16  So.  866;  Schickle 
&c.  Co.  v.  Wiley  Const.  Co.,  61  Mich. 
226.  28  N.  W.  77,  1  Am.  St.  571; 
Pope  V.  Terre  Haute  &c.  Co.,  87  N. 
Y.  137.  And  see  Houston  v.  Filer 
&c.  Co.,  85  Fed.  757,  and  Brush 
Creek  Coal  &c.  Co.  v.  Alorgan  &c. 
Co.,  136  Fed.  505. 

fi2  Remington  v.  Central  Pac.  R. 
Co.,  198  U.  S.  95,  49  L.  ed.  959,  25 
Sup.  Ct.  577.  Citing  Conley  v. 
Mathieson  Alkali  Works,  190  U.  S. 
406,  23  Sup.  Ct.  728,  47  L.  ed.  1113; 
Geer  v.  Mathieson  Alkali  Works, 
190  U.  S.  428.  23  Sup.  Ct.  807.  47 
L.  ed.  1122.  But  in  another  recent 
case  it  is  held  that  service  on  a 
general  officer  who  voluntarily  comes 
into  the  state  to  adjust  a  difference 
between  the  corporation  and  the 
plaintiff  with  reference  to  the  sub- 
ject-matter of  the  suit,  is  sufficient. 
Brush    Creek   Coal   &c.    Co.    v.    J^Ior- 


§719 


RAILROADS 


18 


§719  (622).  Return  of  service. — The  return  of  service  upon 
an  officer  of  a  corporation  should  show  his  official  position  in 
such  a  manner  as  to  make  it  clear  that  the  service  was  upon  the 
officer  or  agent  designated  by  the  statute,  and  that  he  was  served 
in  his  official  or  representative  character."-'  So,  where  the  statute 
permits  service  upon  a  subordinate  officer  only  when  the  presi- 
dent or  highest  officer  is  absent  or  a  non-resident,  the  return  of 
service  upon  the  subordinate  should  show  the  absence  or  non- 
residence  of  the  president  or  chief  officer.'^'"'  A  return  that  the 
summons  was  served  on  the  "general  manager"  of  the  defend- 
ant corporation,  naming  him,  was  held  insufficient  where  the 
statute  required  that  the  service  should  be  upon  its  "president 
or  other  principal  officer."'"-"'  And  a  return  of  service  "person- 
ally on  S.  C.  Hoge,  agent  in  charge  of  the  Central  of  Georgia 
Railway  Company,"  has  been  held  not  sufficient  to  show  service 
upon  the  company."'"'  But  a  service  may  be  good  when  the  re- 
turn shows  that  the  proper  officer  was  served,  although  the  writ 
merely  names  the  defendant  company  without  designating  the 
officer  upon  whom  it  should  be  served."" 


gan  &c.  Co..  136  Fed.  505.  But 
see  Buffalo  &c.  Brick  Co.  v.  Ameri- 
can &c.  Co.,  141  Fed.  211. 

C3  O.xford  Iron  Co.  v.  Spradley, 
42  Ala.  24;  O'Brien  v.  Shaw's  Flat 
&c.  Co.,  10  Cal.  343;  Jones  v.  Hart- 
ford Ins.  Co.,  88  N.  Car.  499;  Pow- 
der Co.  V.  Oakdale  &c.  Co.,  14  Phila. 
(Pa.)  166;  1  Elliott  Gen.  Prac.  §  359. 
See  also  Schlesinger  v.  Modern 
Samaritan,  121  Minn.  145,  140  N. 
\\'.  1027. 

C4  Miller  v.  Norfolk  &c.  R.  Co., 
41  Fed.  431;  St.  Louis  &c.  R.  Co.  v. 
Dorsey,  47  III.  288;  Toledo  &c.  R. 
Co.  V.  Owen,  43  Ind.  405;  Hoen  v. 
Atlantic  &c.  R.  Co.,  64  Mo.  561.  See 
also  Seacoast  Lumber  Co.  v.  R.  J. 
Camp  Lumber  Co.,  63  Fla.  604,  59 
So.  13.  But  compare  Kansas  City 
&c.   R.    Co.   V.   Daughtry,   138  U.   S. 


298.  11  Sup.  Ct.  306,  34  L.  ed.  963. 
As  to  what  is  sufficient  in  this  re- 
gard, see  Colorado  &c.  Co.  v.  Lom- 
bard Investment  Co.,  66  Kans.  251, 
71  Pac.  584,  97  Am.  St.  373;  Chica- 
go &c.  Elec.  Co.  V.  Congdon  &c.  Co., 
Ill  111.  309;  Western  U.  Tel.  Co.  v. 
Lindley,  62  Ind.  371 ;  Cincinnati  Ho- 
tel Co.  V.  Central  Trust  &c.  Co.,  11 
Ohio  Dec.  (reprint)  255.  See  gen- 
erally El  Paso  &c.  R.  Co.  v.  Kelly, 
99  Tex.  87,  87  S.  W.  660. 

<>•'»  Dale  V.  Blue  Mountain  &c.  Co., 
15  Pa.  Co.  Ct.  513. 

Ct:  Burnett  v.  Central  &c.  R.  Co., 
117  Ga.  521,  43  S.  E.  854,  97  Am.  St. 
175.  The  court  regarded  it  as  serv- 
ice upon  Hoge  in  his  individual  ca- 
pacity rather  than  upon  the  corpora- 
tion. But  see  Keener  v.  Eagle  Lake 
&c.  Co.,  110  Cal.  627.  43  Pac.  14. 

67  Illinois    Steel    Co.    v.    San    An- 


19 


ACTIONS   BV   AND  AGAINST  CORPORATIONS 


§720 


§  720  (623).  Venue  of  actions  against  corporations. — An  ac- 
tion ai^^aiiist  a  corporation  for  personal  injuries  or  other  trespass 
of  a  personal  nature,"^^  being  of  a  transitory  character,  may 
usually  be  brought  in  any  county  in  which  service  upon  the 
corporation  can  be  obtained."^  But  a  statute  which  provides 
that  an  action  shall  be  brought  and  tried  in  the  county  in 
which  the  defendant  resides  or  is  found  applies  to  corporations 


tonio  &c.  R.  Co..  67  Fed.  561.  See 
also  for  other  returns  held  sufficient. 
Kinsey  v.  Macon  Lumber  Co.,  136 
Ga.  369,  71  S.  E.  675;  Stout  v.  Bal- 
timore &c.  R.  Co.,  64  W.  Va.  502, 
63  S.  E.  317,  131  Am.  St.  940;  Min- 
neapolis Threshing  Mach.  Co.  v. 
Ashauer,  142  Wis.  646,  126  N.  W. 
113.  It  may  be  amended  as  a  proper 
case.  Seaboard  Air  Line  R.  Co.  v. 
Davis,  13  Ga.  App.  14,  78  S.  E.  687; 
Delaware  Ins.  Co.  v.  Hutto  (Tex. 
Civ.  App.),  159  S.  W.  IZ. 

csi  South  Florida  R.  Co.  v. 
Weese,  32  Fla.  212;  Williams  v. 
East  Tennessee  &c.  R.  Co.,  90  Ga. 
519,  16  S.  E.  303;  Dave  v.  Morgan's 
Louisiana  &c.  R.  Co.,  46  La.  Ann. 
273,  14  So.  911;  Hciter  v.  East  St. 
Louis  Connecting  R.  Co.,  53  Mo. 
App.  331 ;  Atchison  &c.  R.  Co.  v. 
Worley  (Tex.  Civ.  App.),  25  S.  W. 
478. 

69  The  statutes  of  several  of  the 
states  expressly  provide  that  rail- 
roads may  be  sued  in  ordinary  ac- 
tions in  any  county  of  the  state 
through  which  the  road  runs.  Wil- 
liams V.  East  Tennessee  &c.  R.  Co.. 
90  Ga.  519.  16  S.  E.  303;  Georgia 
&c.  R.  Co.  V.  Bermefield.  138  Ga. 
670,  75  S.  E.  981  ;  Soutli  Florida  R. 
Co.  V.  Weesc.  32  Fla.  212,  13  So. 
436;  Fisher  v.  Cleveland  &c.  R.  Co., 
169   Fed.   956    (if   there   is   an   agent 


who  can  be  served  there).  Where- 
ever  the  company  has  an  agent. 
Schoch  V.  Winona  &c.  R.  Co.,  55 
Minn.  479,  57  N.  W.  208;  Atchison 
&c.  R.  Co.  V.  Worley  (Tex.),  25 
S.  W.  478;  Red  River  &c.  R.  Co. 
V.  Blount,  3  Tex.  Civ.  App.  282,  22 
S.  W.  930.  See  also  note  in  70  L. 
R.  A.  691,  et  seq.  It  may  usually 
be  brought  in  the  county  in  which 
the  cause  of  action  arose  even 
though  that  may  not  be  the  princi- 
pal place  of  business.  Cook  v.  W.  S. 
Ray  &c.  Co.,  159  Cal.  694,  115  Pac. 
318;  Cunningham  v.  Klamath  &c.  R. 
Co.,  54  Ore.  13,  101  Pac.  213.  See 
also  Alabama  Western  R.  Co.  v. 
Wilson,  1  Ala.  App.  306,  55  So.  932; 
Southern  R.  Co.  v.  Harrington,  166 
Ala.  630.  52  So.  57,  139  Am.  St.  59; 
Pietrarora  v.  New  Jersey  &c.  R. 
Co.,  197  N.  Y.  434,  91  N.  E.  120.  A 
declaration  against  a  railroad  com- 
pany which  alleges  that  the  defend- 
ant damaged  plaintiffs  by  construct- 
ing a  railroad  upon  their  land  in  tlie 
county  in  which  suit  is  brought,  suf- 
ficiently shows  that  the  railroad  lies 
wholly  or  partly  in  that  county  to 
withstand  a  general  demurrer  for 
want  of  facts  to  constitute  a  cause  of 
action.  East  Georgia  &c.  R.  Co.  v. 
King,  91  Ga.  519.  17  S.  E.  939.  As 
to  what  actions  are  transitory,  see 
also  Hanna  v.  Grand  Trunk  R.  Co., 


§720 


RAILRO.-VDS 


20 


as  well  as  to  natural  persons.'*'  As  elsewhere  shown,  railroad 
companies  are  usually  required  to  have  an  agent  upon  whom 
process  can  be  served  in  each  state,  and  are  sometimes  made,  in 
effect,  residents  of  each  county  through  which  their  line  runs 
and  in  which  they  have  an  agent  for  the  purpose  of  suing  or 
being  sued,'^  although,  when  citizens  of  a  foreign  state  and  not 
of  that  where  sued  they  cannot  be  prohibited  from  removing 
a  cause  to  the  federal  courts  under  proper  circumstances.  But  it 
has  been  held  that  such  a  company,  incorporated  in  one  state 
only,  although  it  has  a  place  of  business  in  another  state,  can- 
not be  sued  in  a  United  States  circuit  court  of  the  latter  state, 
which  is  in  a  different  district  from  that  in  vdiich  the  company 
is  incorporated  by  a  citizen  of  a  third  state.'-  although  a  suit 
between    corporations    organized    in    dift'ercnt    states    may    be 


41  111.  App.  116;  Nonce  v.  Richmond 
&c.  R.  Co.,  33  Fed.  429;  Heiter  v. 
East  St.  Louis  &c.  R.  Co.,  53  Mo. 
App.  331;  1  Elliott  Gen.  Prac.  §253. 
As  to  mandamus  see  Loraine  v. 
Pittsburgh  &c.  R.  Co.,  205  Pa. 
St.  132,  54  Atl.  580,  61  L.  R.  A. 
502  (holding  that  it  will  be  in  the 
county  where  the  track  in  question 
is). 

"'>  Holgate  V.  Oregon  Pac.  R.  Co., 
16  Ore.  123,  17  Pac.  859.  See  also 
Sherrill  v.  Chesapeake  &c.  R.  Co., 
89  Ky.  302,  12  S.  W.  465;  Boyer 
V.  Northern  Pac.  R.  Co.,  8  Idaho 
74.  166  Pac.  826,  70  L.  R.  A.  691, 
and  note. 

"iSee  ante,  §  33;  Bristol  v.  Chi- 
cago &c.  R.  Co.,  15  111.  436;  New- 
berry V.  Arkansas  &c.  R.  Co.,  52 
Kan.s.  613,  35  Pac.  210;  Schoch  v. 
Winona  &c.  R.  Co..  55  Minn.  479, 
57  N.  W.  208;  Louisville  &c.  R.  Co. 
V.  Saucier  (Miss.),  1  So.  511;  Sla- 
vens  V.  South  Pac.  R.  Co.,  51  Mo. 
308.  310;  St.  Louis  &c.  R.  Co.  v. 
Trawttk,  84  Tex.  65.   19  S.  W.  370. 


See  also  Alabama  &c.  R.  Co.  v. 
Fulghum,  87  Ga.  263,  13  S.  E.  649. 
">-  Shaw  V.  Quincy  Mining  Co.,  145 
U.  S.  444,  36  L.  ed.  768,  6  Lewis 
Am.  R.  &  Corp.  357;  Southern  Pac. 
Co.  V.  Denton,  146  U.  S.  202.  13 
Sup.  Ct.  44,  36  L.  ed.  943;  Camp- 
bell V.  Duluth  &c.  R.  Co.,  50  Fed. 
241.  There  are  cases  in  the  federal 
circuit  courts  to  the  contrary,  but 
the  first  decision  of  the  Supreme 
Court,  supra,  has  settled  the  law 
upon  the  subject,  except  as  changed, 
if  at  all,  by  later  Acts  of  Congress 
or  war  orders.  But  see  Hohorst,  In 
re.  150  U.  S.  653,  14  Sup.  Ct.  221, 
37  L.  ed.  1211,  holding  that  a  for- 
eign corporation  might  be  sued  by  a 
citizen  of  a  state  in  any  district 
thereof  in  which  valid  service  could 
be  had.  See  also  Barrow  &c.  Co. 
V.  Kane.  170  U.  S.  100,  18  Sup.  Ct. 
526,  42  L.  ed.  964.  And  see  as  to 
waiver.  Interior,  &c..  Constr.  Co.  v. 
Gibney,  160  U.  S.  217,  16  Sup.  Ct. 
272,  40  L.  ed.  401 ;  Citizens'  &c.  Co. 
V.   Union  &c.  Co.,   106  Fed.  97.     As 


21  ACTIONS   RV   AND  AGAINST   COKI-ORATIONS  §  720 

brought  in  the  district  in  which  the  plaintiff  is  incorporated  as 
well  as  that  in  which  the  defendant  is  incorporated,  when  the 
jurisdiction  is  founded  solely  on  diverse  citizenship  under  the 
act  of  congress  of  August  13,  1888. "^  A  state  statute  which 
provides  that  suits  against  a  railroad  company  may  be  brought 
in  any  county  into  which  its  line  extends  is  subordinate,  in  so 
far  as  the  federal  courts  are  concerned,  to  the  act  of  congress 
above  referred  to,  and  where  another  statute  of  the  state  declares 
that  "the  public  office  of  a  railroad  corporation  shall  be  con- 
sidered the  domicile  of  such  corporation."  a  domestic  railroad 
company  of  such  state  is  an  "inhabitant"  of  the  district  in  which 
such  public  office  is  located,  and  cannot  be  sued  in  a  circuit  court 
of  the  United  States  in  another  district  through  which  its  road 
extends. '^^  In  some  jurisdictions,  where  the  statute  does  not. 
in  effect,  make  railroad  companies  residents  of  the  different 
counties  through  wdiich  their  lines  run  and  in  which  they  have 
agents,  it  is  held  that  the  residence  of  a  railroad  company  will 
be  presumed  to  be  in  the  county  in  which  its  principal  office 
is  located,  and  that  the  venue  should  be  laid  in  that  county."-^ 

to  right  of  non-resident  to  sue  non-  177  U.   S.   1.  20  Sup.   Ct.   559,  44  L. 

resident    corporation    in    state    court,  ed.  647. 

where  cause  of  action   is  transitory,  74  Galveston    &c.    R.    Co.    v.    Gon- 

see  Reeves  v.   Southern   R.   Co.,    121  zales,    151    U.    S.    496.    14    Sup.    Ct. 

Ga.   561,  49   S.   E.  6/4,   70  L.   R.   A.  401,   38   L.   ed.   248,   57  Am.   &  Eng. 

513,  and  note.     See  also  Western  v.  R.  Cas.  71.     See  generally  as  to  dis- 

Cassin    Co.,   206    N.    Y.    506,    100    N.  trict    in    which    suits    must    now    be 

E.    488,    Ann.    Cas.    1914B,    Zll ,    and  l)rought    in    federal    court.      Western 

note.  Union    Tel.    Co.    v.    Louisville   &    N. 

73  N.  K.  Fairbank  &  Co.  v.  Cincin-  R.   Co.,  229  Fed.  234;  Rakauskas  v. 

nati    &c.    R.    Co.,    54    Fed.    420;    St.  Erie   R.   Co.,  237   Fed.   495.     A   suit 

Louis  &c.  R.  Co.  V.  McBride,  141  U.  against  a  carrier  under  federal   con- 

S.    127,    11    Sup.    Ct.    982,    35    L.    ed.  trol   as  a   war  measure,  brouglit  af- 

659,   holding  also  that  the   objection  ter  promulgation   of  General   Orders 

to   jurisdiction    on   this   ground   may  18  and  18a,  of  the  Director  General, 

be    waived.      See    also    Pennsjdvania  other    than    in    a    county    or    district 

R.    Co.    V.    Swift    &c.    Co.,   242    Fed.  in  which  the  cause  of  action  arose,  or 

92 ;    Twin    Lakes    Land    &c.    Co.    v.  where    plaintifif   resided    when    it   ac- 

Dohner,    242    Fed.    399.      See    as    to  crued,  will  be  dismissed.     Cocker  v.. 

right  of  non-resident   stockholder  to  New  York  &c.  R.  Co.,  253  Fed.  676, 

sue  in  district  where  corporation  was  75  Jenkins    v.    Stage    Co.,    22    Cal. 

created,   Jellenik  v.    Huron   &c.    Co.,  537 ;    Thorn    v.    Railroad    Co.,  26   N. 


§  720 


RAILROADS 


O? 


It  was  also  held,  in  a  recent  case,  that  an  action  for  personal  in- 
juries niig-ht  be  brought  in  the  county  in  which  the  company 
had  its  principal  office,  although  the  injury  was  inflicted  in  an- 
other county  in  the  same  state,  and  .illliDugh  the  statute  pro- 
vided that  the  company  might  be  sued  in  the  county  in  which 
the  injury  was  inflicted."*'  And  it  has  been  held  in  Texas  that 
a  railroad  company  whose  road  extends  into  and  is  operated  by 
it  in  Texas,  may  be  there  sued  and  served  with  process  not- 
withstanding the  cause  of  action  arose  in  another  state  of  which 
the  plaintiff  is  a  citizen. '^^  Local  actions,  such  as  those  involv- 
ing the  title  or  possession  of  land,  or  for  injuries  thereto-  must 
generally  be  brought  in  the  county  or  district  in  which  the  land 
is  situated,"*^  but  this  subject  is  largely  regulated  by  legislative 
enactments.     Other  questions  as  to  the  venue  in  actions  against 


J.  L.  121  ;  Transportation  Co.  v. 
Scheu.  19  N.  Y.  408;  Pelton  v. 
Transportation  Co.,  o7  Ohio  St.  450; 
Railroad  Co.  v.  Cooper,  30  Vt.  476. 
72)  Am.  Dec.  319.  But,  as  a  general 
rule,  a  transitory  action  against  a 
non-resident  may  be  brought  in  any 
county  in  which  process  can  be 
served  upon  him.  I  Elliott  Gen. 
Prac.  §  254,  and  authorities  there 
cited,  in  note  3,  p.  313. 

^e  The  court  regarded  the  statute 
as  permissive  and  cumulative  and  not 
•exclusive.  Williams  v.  E^st  Ten- 
nessee &c.  R.  Co..  90  Ga.  519,  16  S. 
E.  303. 

'7  Missouri  &-c.  R.  Co.  v.  Keller- 
man  39  Tex.  Civ.  App.  274,  87  S. 
W.  401.  A  general  provision  as  to 
venue  of  actions  against  foreign  cor- 
porations is  held  to  relate  to  public 
service  corporations  as  well  as  strict- 
ly private  corporations.  Atchison 
&c.  R.  Co.  V.  Lambert.  32  Okla.  665, 
123  Pac.  428. 

7S  See  1  Elliott  Gen.  Prac.  §  252, 
and   authorities   there   cited.     Unless 


otherwise  provided  by  statute,  the 
general  rule  is  that  an  action  is 
transitory  "when  the  transaction  out 
of  which  it  grows,  or  the  occurrence 
upon  which  it  is  founded,  is  one  that 
might  have  taken  place  anywhere." 
1  Elliott  Gen.  Prac.  §  253,  citing 
Mostyn  v.  Fabrigas,  1  Cowp.  161.  1 
Smith  Lead.  Cases,  652.  "Actions 
are  deemed  transitory  when  the 
transactions  on  which  thej^  are 
founded  might  have  taken  place  any- 
where, but  are  local  where  their 
cause  is  in  its  nature  necessarily  lo- 
cal." Nonce  v.  Richmond  &c.  R. 
Co..  2,:^  Fed.  429,  433,  434.  For  ac- 
tions held  local,  see  East  Tennes- 
see &c.  R.  Co.  V.  Atlantic  &c.  R. 
Co.,  49  Fed.  608  (bill  for  appoint- 
ment of  receiver  held  of  a  "local 
nature"  within  meaning  of  U.  S. 
Rev.  Stat.  §§  740,  742)  ;  Cox  v.  St. 
Louis  &c.  R.  Co..  55  Ark.  454.  18 
S.  W.  630  (suit  to  restrain  company 
from  removing  earth  from  plaintiff's 
land)  ;  Morris  v.  Missouri  Pac.  R. 
Co.,  78  Tex.   17,   14  S.  W.  228,  9  L. 


23  ACTIONS   BV   AND   AGAINST   CORPORATIONS  §  721 

consolidated  corporations  and  in  difFcrcnt  kinds  of  suits  and 
actions  are  discussed  elsewhere,  in  connection  with  the  particu- 
lar cases  in  which  they  arise.''''  It  may  be  well,  however,  in 
this  connection,  to  call  attention  to  a  recent  case  decided  by 
the  supreme  court  of  Indiana.  A  domestic  railroad  company 
had  surrendered  its  property  and  franchise  and  ceased  to  do 
business,  but,  on  quo  warranto  proceedings,  the  court  held 
that  its  legal  residence  w^as  in  the  county  where  its  principal 
office  was  located  when  it  ceased  to  do  business ;  that  the  suit 
was  properly  instituted  in  that  county  but  service  might  be 
had.  under  the  statute,  upon  its  agent  in  another  county  ap- 
pointed to  receive  service,  it  having  no  office  and  no  agent  in 
the  state  except  such  agent  who  had  been  appointed  by  it  for 
the  purpose  of  receiving  and  accepting  service. ^^ 

§  721  (624).  Attachment. — Jurisdiction  over  a  corporation,  to 
a  limited  extent  at  least,  may  sometimes  be  obtained  by  attach- 
ment or  garnishment.  These  remedies  or  proceedings,  however, 
are  creatures  of  statute,  and,  as  the  statutory  provisions  vary 
in  different  states,  we  shall  not  attempt  to  treat  the  subject  in 
detail,  but  it  may  be  w^ell  to  call  attention  to  some  rules  of  a 
general  nature  that  are  peculiarly  applicable  to  railroad  com- 
panies. Attachment  and  garnishment  are  usually  auxiliary  or 
provisional  remedies  and  can  only  be  pursued  when  authorized 
by  statute  and  in  conformity  with  the  statutory  provisions  as 
to   the  procedure. "^^      If   personal    service   upon   the   company    is 

R.  A.  349,  22  Am.  St.  17  (action  for  Du   Breuil   v.    Pennsylvania   Co.,    130 

flooding    land,    but    the    contrary    is  Ind.    137,  29   N.    E.   909;    Postal   &c. 

held  in  Archibald  v.   Mississippi  &c.  Co.  v.   Norfolk  &c.  Co.,  88  Va.  920, 

R.    Co.,   66   Miss.   424,   6    So.    238)  ;  14   S.   E.   803. 

A'lississippi    &c.    R.    Co.    v.    Ward,    2  "9  See   generally   Chapter    III,    Le- 

Black    (U.    S.)    485,    17    L.    ed.   311;  gal  Status. 

Atkins  V.  Wabash  &c.  R.  Co.,  29  Fed.  so  Eel   River   R.   Co.  v.    State,    155 

161     (suit    to    foreclose    mortgage)  ;  Ind.  433,  58  N.   E.  388. 

Drinkhouse  v.  Spring  Valley  &c.  Co.,  *^i  See    generally    Penns]^-lvania    R. 

SO    Cal.    308.    22    Pac.    252;    Indiana  Co.    v.    Rogers,    52    W.    Va.    450,    44 

&c.   R.    Co.   V.    Foster.    107    Ind.   430,  S.  E.  300,  62  L.  R.  A.  178,  and  au- 

8    N.    E.    264    (action    for    damages  thorities    cited    in    notes    and    briefs; 

to    land    by    fire    from    locomotive)  ;  also    notes    in    19    L.    R.    A.    577,    67 


^721 


RAILROADS 


24 


properly  obtained  in  the  main  action  a  personal  judgment  may 
be  rendered  against  it  in  a  proper  case.^-  but  if  it  is  a  non-resi- 
dent and  does  not  ai)pear  or  otherwise  waive  service,  no  per- 
sonal judgment  can  be  rendered  against  it.**^  So  far  as  the  prop- 
erty itself  is  concerned,  however,  jurisdiction  is  generally  ob- 
tained, in  case  of  a  non-resident,  by  its  seizure  and  by  giving 
notice  by  publication  in  compliance  with  the  statute. ^'^  But  if 
no  property  is  found  and  no  personal  service  is  had,  no  judg- 
ment can  be  rendered  against  a  non-resident  defendant  who  does 
not  appear  or  waive  service. ^'^  As  a  general  rule  any  property 
subject  to  execution  may  be  attached,  and  engines  and  cars  not 
in   actual   use   are  usually  regarded   as  personal   property   liable 


L.  R.  A.  209,  and  94  Am.  St.  552. 
For  instances  in  which  attachment 
was  held  to  lie  against  railroad  com- 
panies, see  Seeley  v.  Missouri  &c.  R. 
Co.,  39  Fed.  252;  Breed  v.  Mitchell, 
48  Ga.  533 ;  South  Carolina  R.  Co. 
V.  People's  Sav.  Inst..  64  Ga.  18,  12 
Am.  &  Eng.  R.  Cas.  432;  Fithian 
V.  New  York  &c.  R.  Co.,  31  Pa.  St. 
114;  Curtis  v.  Bradford,  33  Wis. 
190;  Kitchen  v.  Chatham  &c.  R.  Co., 
17  New  Bruns.  215.  For  instances 
in  which  it  was  held  that  attachment 
would  not  lie,  see  Central  R.  &c.  Co. 
V.  Georgia  &c.  Co..  32  S.  Car.  319,  11 
S.  E.  192;  Martin  v.  Mobile  &c.  R. 
Co.,  7  Bush  (Ky.)  116;  Farnsworth 
V.  Terre  Haute  &c.  R.  Co.,  29  Mo. 
75;  Phillipsburgh  Bank  v.  Lackawan- 
na R.  Co.,  27  N.  J.  L.  206. 

S-'  Mahany  v.  Kcphart.  15  W.  Va. 
609. 

s-".  1  Elliott  Gen  Prac.  §§  243,  378 ; 
Cooper  V.  Reynolds.  10  Wall.  (U. 
S.)  308,  1.9  L.  ed.  931;  Eastman  v. 
Wadleigh,  65  Maine  251,  20  Am. 
Rep.  695 ;  Eliot  v.  McCormick,  144 
Mass.  10,  10  N.  E.  705.  In  Alichigan  it 
is  held  that  a  resident  injured  outside 


the  state  while  a  passenger  on  the 
train  of  a  foreign  railroad  may 
bring  an  action  and  attach  property 
of  such  railroad  in  Michigan. 
Daniels  v.  Detroit  &c.  R.  Co.,  163 
Mich.  468,   128  N.  W.  797. 

84  Cooper  V.  Reynolds,  10  Wall.  (U. 
S.)  308,  19  L.  ed.  931 ;  King  v.  Vance, 
46  Ind.  246;  Neufelder  v.  German 
American  Ins.  Co.,  6  Wash.  336,  33 
Pac.  870,  22  L.  R.  A.  287,  290,  36 
Am.  St.  166;  1  Elliott  Gen.  Prac. 
§§243,  378. 

85  Pennoyer  v.  NefT,  95  U.  S.  714. 
24  L.  ed.  565 ;  Clymore  v.  Williams, 
77  111.  618 ;  Cooper  v.  Smith.  25  Iowa 
269;  Bruce  v.  Cloutman,  45  N.  H. 
37,  84  Am.  Dec.  111.  See  also  Kirk 
V.  United  States,  137  Fed.  753,  755: 
Mexican  C.  R.  Co.  v.  Pinkney,  149  U. 
S.  194.  209,  13  Sun.  Ct.  859,  37  L.  erl. 
699;  New  Mexico  v.  Baker,  196  U. 
S.  432,  25  Sup.  Ct.  375,  49  L.  ed.  540 : 
see  generally  note  in  67  L.  R.  A.  209, 
and  note  in  69  Am.  St.  115,  et  seq. 
.A.  (lel)t,  at  least  when  payable  in  such 
state,  may  be  considered  property  or 
its  equivalent.     See  also  De  Field  v. 


25 


ACTIONS   BV    AND   AGAINST   CORPORATIONS 


721 


to  attachment. ^^  But  it  has  been  held  by  some  of  the  courts 
that  a  railroad  car  of  a  foreign  company  sent  into  a  state  with 
freight  to  be  delivered  in  such  state  and  reloaded  and  sent  back 
to  the  foreign  state  from  which  it  came  in  the  customary  and 
usual  manner  of  transacting  interstate  commerce  cannot  be  at- 
tached in  the  state  to  which  it  so  came  to  be  imloaded  and  re- 
loaded.^''' There  are  decisions  of  state  courts  to  the  contrary, 
however,  and  the  Supreme  Court,  of  the  United  States  has  re- 
cently settled  the  question  by  holding  that  such  cars  are  sub- 
ject to  attachment  and  are  not  immune  from  judicial  process  by 
reason  of  the  interstate  commerce  law  or  the  Act  of  Congress 
securing  continuity  of  transportation. ^^ 


Harding  Dredge  Co.,  180  Mo.  App. 
563,  167  S.  W.  593. 

86  Hall  V.  Carney,  140  :\Iass.  131,  3 
N.  E.  14;  Boston  &c.  R.  Co.  v.  Gil- 
more  R.  Co.,  Z7  N.  H.  410,  72  Am. 
Dec.  336;  De  Rochemont  v.  New 
York  Cent.  &c.  R.  Co.,  75  N.  H.  158, 
71  Atl.  868,  139  Am.  St.  673,  29  L. 
R.  A.  (X.  S.)  529;  Dinsmore  v.  Ra- 
cine &c.  R.  Co.,  12  Wis.  725.  See 
also  brief  in  Wall  v.  Norfolk  &c.  R. 
Co..  52  W.  Va.  485,  44  S.  E.  294, 
64  L.  R.  A.  501,  504,  94  Am.  St.  948. 

8"  Connery  v.  Quincy  &c.  R.  Co., 
92  Minn.  20,  99  X.  W.  365.  64  L.  R. 
A.  624,  104  Am.  St.  659;  Wall  v. 
Norfolk  &c.  R.  Co.,  52  W.  Va.  485, 
44  S.  E.  294,  64  L.  R.  A.  501,  94  Am. 
St.  948.  The  latter  case  also  holds 
that  another  company  having  such 
car  in  its  possession  and  so  carrying 
on  interstate  commerce  is  not  liable 
to  garnishment  by  reason  of  its  pos- 
session received  against  the  company 
against  which  an  attachment  was  is- 
sued. See  also  Michigan  Cent.  R. 
Co.  V.  Chicago  &c.  R.  Co.,  1  111.  App. 
399;  Seibels  v.  Northern  &c.  R.  Co., 
80  S.  Car.  133,  61  S.  E.  435,  16  L.  R. 


A.  (N.  S.)  1026.  Chicago  &c.  R.  Co. 
V.  Forest  County,  95  Wis.  80,  70  N. 
W.  77.  These  are  •  important  de- 
cisions and  are  based  largely  upon 
public  policy  and  the  commerce  clause 
in  the  federal  constitution  in  con- 
nection with  the  interstate  commerce 
law.  But  the  question  now  seems 
1o  be  settled  by  the  decision  of  the 
Supreme  Court  of  the  United  States 
cited   in   the   next    following  note. 

f*s  Davis  V.  Cleveland  &c.  R.  Co., 
217  U.  S.  157,  54  L.  ed.  708,  27  L. 
R.  A.  (N.  S.)  823;  De  Rochemont 
V.  New  York  &c.  R.  Co.,  75  N.  H. 
158.  71  Atl.  868,  139  Am.  St.  673.  29 
L.  R.  A.  (N.  S.)  529;  Southern 
Flour  &c.  Co.  V.  Northern  Pac.  R. 
Co.,  127  Ga.  626,  56  S.  E.  742,  9 
L.  R.  A.  (N.  S.)  853,  119  Am.  St. 
356;  Southern  R.  Co.  v.  Brown,  131 
Ga.  245,  62  S.  E.  177.  See  also  Hum- 
phreys V.  Hopkins,  81  Cal.  551,  22 
Pac.  892,  6  L.  R.  A.  792,  15  Am.  St. 
76.  Compare  Koontz  v.  Baltimore 
&c.  R.  Co.,  220  Mass.  285.  107  N.  E. 
973  (apparently  approving  this  doc- 
trine, but  holding  attachment  not  per- 
missible in  that  case  under  the  par- 


^722 


RAILROADS 


26 


§  722  (624).     Garnishment. — A  railroad  company  may  be  sub- 
ject to  g'arnishmciit  the  same  as  a  natural  j)crson,  althouf^h  not 
specially  mentiont-d  in  the  statute,^'-'  Init  it  has  l)ccn  held  in  Michi- 
gan that  a  statutory  provision  for  the  service  of  ])rocess  in  suits 
ag'ainst  foreign  corporations  docs  not  aj)ply  to  the  service  of  a 
writ  of  ^garnishment.''"  One  or  two  courts  have  held  that  the  same 
consideration   of  public   policy   which   exempt   public   officers   in 
the  dischargee   of  their  duties  .from   g^arnishment  apply   to  com- 
mon carriers,*^^   and   there  may  be  cases  in  which   the   garnish- 
ment would  so  interfere  with  the  duties  of  the  company  to  the 
public  that  the  courts  should  refuse  to  permit  the  garnishment 
to  be  enforced,  as  in  the  cases  cited,  but  ordinarily,  if  the  statute 
authorizing"  the  garnishment  applies  to  the  case,  it  would  seem 
to   be   the  duty  of  the  courts  to  enforce   it.      Many   authorities 
hold,  however,  that  a  non-resident  corporation  cannot,  ordinarily, 
be  lield  acco'tmtable  as  garnishee  unless  it  has  property  of  the 


ticular  arrangement  between  the  com- 
panies). Goods  in  transit  in  the 
hands  of  a  carrier  may  be  attached  in 
a  proper  case.  Clifford  v.  Brockton 
&c.  Co.,  214  Alass.  466,  101  N.  E. 
1092,  Ann.  Cas.  191 4R,  908,  and  other 
cases  cited  in  note.  See  also  Cavan- 
augh  V.  Chicago  &'C.  R.  Co..  75  N.  H. 
243.  72  Atl.  694.  See  also  as  to  right 
to  attacli  shares  of  a  non-resident  at 
location  of  corporation.  Barl)er  v. 
Morgan,  84  Conn.  618,  80  Atl.  191. 
Ann.  Cas.  1914D,  951,  and  cases  there 
cited  in  note.  Cars  in  interstate  com- 
merce may  be  attached  under  a  state 
law  and  a  state  law  prohibiting  for- 
eign attachment  of  goods  shipped  un- 
der a  negotiable  bill  of  lading  does 
not  interfere  with  interstate  com- 
merce. Stanford  Rolling  Mills  Co.  v 
Erie  R.  Co.,  257  Pa.  507,  101  Atl. 
823. 

so  Hannibal  &c.  R.  Co.  v.  Crane, 
102  111.  249,  40  Am.  Rep.  581  ;  Taylor 
V.  Burlington  &c.  R.  Co.,  5  Iowa  114; 


Pennsylvania  R.  Co.  v.  Peoples,  31 
Ohio  St.  537;  Hughes  v.  Oregonian 
R.  Co.,  11  Ore.  158,  2  Pac.  94;  Balti- 
more &c.  R.  Co.  V.  Gallahue,  12  Grat. 
(Va.)  655,  65  Am.  Dec.  254.  A  for- 
eign corporation  doing  business  in 
the  state  was  held  subject  to  garnish- 
ment in  the  first  case  above  cited. 
So  in  Weed  Sewing  Machine  Co. 
V.  Boutclle,  56  Vt.  570,  48  Am.  Rep. 
821  ;  Fairbank  v.  Cincinnati  &c.  R. 
Co.,  54  Fed.  420;  Burlington  &c.  R. 
Co.  V.  Tliompson,  31  Kans.  180,  1  Pac. 
622,  47  Am.  Rep.  497,  16  Am.  &  Eng. 
R.  Cas.  480;  Barr  v.  King,  96  Pa.  St. 
485 :  Carson  v.  Memphis  &c.  R.  Co.. 
88  Tenn.  646,  13  S.  W.  588,  17  Am. 
St.  921. 

»"  Milwaukee  &c.  R.  Co.  v.  Bre- 
voort.  7Z  Mich.  155,  41  N.  W.  215; 
First  Nat.  Bank  v.  Burch,  76  Mich. 
608,  43   N.   W.  453. 

'•*!  Michigan  Cent.  R.  Co.  v.  Chica- 
go &c.  R.  Co.,  1  111.  App.  399.  See 
also     Holland     v.     Leslie,     2     Harr. 


27 


ACTIONS   BV   AND  AGAINST   CORPORATIONS 


§722 


defendant  within  the  state  in  which  the  proceedings  are  had, 
or  is  bound  to  pay  him  money  or  dehver  him  goods  in  that 
state. '•'^  Thus,  it  has  been  held  that  a  company  of  one  state 
operating  a  road  running  into  another  state  as  lessee  cannot  be 
charged  as  garnishee  in  the  latter  state  in  an  action  for  a  debi 
payable  in  the  former  state,  in  which  the  plaintiff  and  defend- 
ant both  reside/-*^  But  there  is  sharp  conflict  among  the  authori- 
ties and  wc  shall  not  attempt  to  reconcile  or  review  the  con- 
flicting authorities  upon  this  general  subject  as  to  the  situs  .of 
the  debt  or  the  jurisdiction  of  the  court.''"^  It  is  held  in  Illinois 
that  a  railroad  company  doing  business  in  that  and  another  state 
may  be  garnished  in  Illinois  by  a  resident  in  the  other  state  for 
a  debt  owing  by  the  company  to  another  resident  of  that  state, 


(Del.)    306,   and   authorities   cited   in 
note  87,  supra. 

92  Louisville  &c.  R.  Co.  v.  Dooley, 
78  Ala.  524;  Schmidlapp  v.  La- 
Confiance  Ins.  Co.,  71  Ga.  246;  Mis- 
souri Pac.  R.  Co.  V.  Sharitt.  43 
Kans.  375,  23  Pac.  430,  8  L.  R.  A. 
385,  19  Am.  St.  143,  44  Am.  &  Eng. 
R.  Cas.  657;  Todd  v.  Missouri  Par. 
R.  Co.,  33  Mo.  App.  110;  Wright  v. 
Chicago  &c.  R.  Co.,  19  Nebr.  17S,  27 
N.  W.  90,  56  Am.  Rep.  747;  and 
authorities  cited  by  Valentine,  J. ; 
Young  V.  Ross,  31  N.  H.  201;  Bu- 
chanan V.  Hunt.  98  N.  E.  560;  Cro- 
nin  V.  Foster,  13  R.  I.  196.  See  gen- 
erally Douglass  V.  Phenix  Ins.  Co., 
138  N.  Y.  209,  33  N.  E.  938,  20  L.  R. 
A.  118,  34  Am.  St.  448;  Pennsylvania 
R.  Co.  V.  Pennock,  51  Pa.  St.  244; 
Bates  V.  Chicago  &c.  R.  Co.,  60 
Wis.  296,  19  N.  W.  72,  SO  Am.  Rep. 
369.  See  also  note  to  Illinois  Cent. 
R.  Co.  V.  Smith,  70  Miss.  344,  12  So. 
461,  19  L.  R.  A.  577,  35  Am.  St.  651; 
Central  Trust  Co.  v.  Chattanooga 
&c.  R.  Co.,  68  Fed.  685. 

93  Gold  V.  Housatonic  R.  Co..  1 
Gray  (Mass.)  424;  Towle  v.  Wilder. 


57  Vt.  622.  But  see  supra,  note  1 ; 
and  see  Georgia  &c.  R.  Co.  v.  Stol- 
lenwerck,  122  Ala.  539,  25  So.  258. 
9-1  To  the  effect  that  it  is  upon  the 
control  and  jurisdiction  of  the  debt- 
or rather  than  the  situs  of  the  debt, 
see  Chicago  &c.  R.  Co.  v.  Sturm,  174 
U.  S.  710,  19  Sup.  Ct.  797,  43  L.  ed. 
1144;  King  v.  Cross,  175  U.  S.  396, 
20  Sup.  Ct.  131,  44  L.  ed.  211; 
Alooney  v.  Buford  &c.  Co.,  72  Fed. 
3Z;  Tootle  v.  Coleman,  107  Fed.  41, 
57  L.  R.  A.  120;  Rothschild  v. 
Knight.  176  Mass.  48,  57  N.  E.  337; 
Wyeth  V.  Hardware  &c.  Co.,  127 
Mo.  242,  29  S.  W.  1010,  27  L.  R.  A. 
651,  48  Am.  St.  626.  But  compare 
Louisville  &c.  R.  Co.  v.  Nasii.  118 
Ala.  477.  23  So.  825,  41  L.  R.  A. 
331.  72  Am.  St.  181;  Central  R.  Co. 
v.  Brinson,  109  Ga.  354,  34  S.  E. 
597,  77  Am.  St.  382;  Bullard  v. 
Chaffee.  61  Nebr.  83,  84  N.  W.  604 
51  L.  R.  A.  715,  holding  otherwise 
if  the  debt  is  not  payable  in  such 
jurisdiction.  The  court  also  seems 
to  have  laid  some  stress  upon  this 
alleged  distinction  in  the  case  first 
cited    from    the    reports    of   the    Su- 


§  722, 


RAILROADS 


28 


and  that  the  motives  of  the  plaintiff  arc  immaterial. '^^  In  Ten- 
nessee it  has  been  held  that  a  company  which  owns  and  operates 
a  continuous  line  throu.^h  that  and  several  other  states,  having  a 
separate  charter  from  each  of  them,  is  a  resident  and  domestic 
corporation  of  Tennessee,  and  subject  as  such  to  garnishment 
therein,  by  a  citizen  thereof,  although  the  claim  sought  to  be 
reached  was  contracted  in  c^ne  of  the  other  states  and  is  due  to 
a  non-resident.'"^ 

§  723  (625).  Duty  and  liability  of  garnishee. — If  the  corpora- 
tion is  properly  served  as  garnishee  it  must  appear  and  answer, 
disclosing  the  facts.  It  answers,  ordinarily,  under  its  corporate 
seal,  by  its  proper  ofticcr  or  agent.^'^     If  the  principal  defendant 


prcme  Court  of  the  United  State3. 
But  the  later  cases  of  Harris  v.  Balk, 
198  U.  S.  215,  25  Sup.  Ct.  625,  49 
L.  ed.  1023,  and  Louisville  &c.  R.  Co. 
V.  Deer,  200  U.  S.  176,  26  Sup.  Ct. 
207,  50  L.  cd.  426,  seem  to  seUle  the 
rule  that  this  makes  no  difference. 
The  Supreme  Court  of  Alississippi, 
in  Southern  Pac.  R.  Co.  v.  A.  J. 
Lyon  Co.,  99  Miss.  186,  54  So.  728, 
Ann.  Cas.  1913D,  800,  has  recently 
followed  the  decisions  of  the  Su- 
preme Court  of  the  United  States 
and  overruled  Illinois  Cent.  R.  Co. 
V.  Smith,  70  Miss.  344,  12  So.  46L 
19  L.  R.  A.  577,  35  Am.  St.  651. 
See  generally  Goodwin  v.  Clayter, 
137  N.  Car.  224.  49  S.  E.  173,  67  L. 
R.  A.  209  and  note,  107  Am.  St. 
479,  and  National  Bank  v.  Furtick,  2 
Marv.  (Del.)  35,  42  Atl.  479,  44 
L.  R.  A.  115,  69  Am.  St.  99  and  note. 
The  authorities  are  so  fully  reviewed 
and  the  question  is  so  carefully  coi>- 
sidered  in  the  notes  referred  to 
that  it  is  unnecessary  to  discuss  it 
at  length  here.  Compare  also  St. 
Louis  &c.  R.  Co.  v.  \'anderberg,  91 
Ark.  252,   120  S.  W.  993. 


95  Wabash  R.  Co.  v.  Dougan,  142 
111.  248,  31  N.  E.  594,  34  Am.  St. 
74.  See  also  Drake  v.  Lake  Shore 
&c.  R.  Co.,  69  Mich.  168,  Z7  N.  W. 
70,  13  Am.  St.  382;  Pomeroy  v. 
Rand  &c.  Co.,  157  111.  176,  41  N.  E. 
636 ;  Lancashire  Ins.  Co.  v.  Corbett, 
165  111.  592,  46  N.  E.  631,  36  L.  R.  A. 
640,  56  Am.  St.  275;  Stevens  v. 
Brown.  20  \V.  \'a.  450.  But  see 
post,    §  725. 

9'i  Mobile  &c.  R.  Co.  v.  Barnhill, 
91  Tenn.  395,  19  S.  W.  21,  50  Am. 
&  Eng.  R.  Cas.  646.  Compare  also 
St.  Louis  &c.  R.  Co.  V.  Vanderberg, 
91  Ark.  252,  120  S.  W.  993.  But  see 
Wells  V.  East  Tenn.  &c.  R.  Co.,  74 
Ga.  548. 

9V  Oliver  v.  Chicago  &c.  R.  Co.,  17 
111.  587:  Baltimore  &c.  R.  Co.  v. 
Gallahue,  12  Grat.  (Va.)  655,  65  Am. 
Dec.  254.  See  also  International 
Seal  Co.  V.  Beyer,  2>3  App.  D.  C.  172. 
The  answer  must  usually  be  veri- 
fied b)'  the  proper  officer.  Chicago 
R.  I.  &c.  R.  Co.  V.  Mason,  11  111. 
App.  525 ;  Memphis  &c.  R.  Co.  v 
Whorley,  74  Ala.  264.  But  the  affi- 
davit need  not  be  made  by  the  same 


29 


ACTIONS  BV   AND   AGAINST  CORPORATIONS 


§723 


has  not  been  personally  served  and  does  not  appear  it  is  generally 
the  duty  of  the  garnishee,  which  it  owes  to  the  defendant,  to 
question  the  jurisdiction  of  the  court,  if  it  has  none  and  this  it 
should  always  do  in  case  of  doubt,  for  its  own  protection.'*'*  It 
has  also  been  held  that  the  garnishee  must  present  the  question 
of  the  defendant's  right  to  exemption,^''  and  this  we  think,  is  the 
true  rule  where  wages  are  garnished,  which  are  expressly  ex- 
empted therefrom  by  statute,  and,  possibly,  in  all  cases  where 
the  garnishee  has  knowledge  of  the  right  of  the  defendant  to 
exemption,  but,  in  the  absence  of  knowledge,  where  such  a  statute 
does  not  exist  or  does  not  apply,  we  think  the  garnishee  is  not 
necessarily  bound  to  raise  the  question.  Indeed-  as  the  right 
to  exemption  is  generally  considered  a  mere  personal  privilege, 
it  would  seem  that,  upon  principle,  the  garnishee  can  neither 
insist  upon  such  a  defense,  where  the  principal  defendant  Avaives 
it,  nor  be  held  liable  for  not  making  it,  in  the  absence  of  a  special 
statute.^  The  garnishment  usually  binds  the  garnishee,  as  to 
the  debt  or  property  in  his  hands,  from  the  date  of  the  service 
of  the   writ.-   and  his   liabilitv   is   ordinarilv   determined   bv   his 


officer  upon  whom  the  writ  was 
served,  and  it  has  been  held  that  it 
may  be  made  by  any  officer  having 
knowledge  of  the  facts.  Duke  v. 
Rhode  Island  &c.  Works,  11  R.  I. 
599;  Whitworth  v.  Pelton.  81  Mich. 
98,  45  N.  W.  500  (affidavit  by  assist- 
ant treasurer).  See  also  Hutson  v. 
Illinois  Cent.  R.  Co..  186  Ala.  436, 
65  So.  62.  It  has  also  been  held  that 
the  court  may  permit  the  garnishee 
to  file  an  amended  answer  in  fur- 
therance of  justice.  Crerar  v. 
Milwaukee  &c.  R.  Co.,  35  Wis.  67. 
9S  Pierce  v.  Carleton,  12  111.  358, 
54  Am.  Dec.  405 ;  Emery  v.  Royal. 
117  Ind.  299,  20  N.  E.  150;  Debs 
V.  Dalton,  7  Ind.  App.  84,  34  N.  E. 
236;  Laidlaw  v.  Morrow,  44  Mich. 
547,  7  N.  W.  191 ;  Thayer  v.  Tyler, 
10  Gray  (Mass.)  164;  Kellogg  v. 
Freeman,  50  Miss.  127.  It  is  held  in 


Atwood  V.  Tucker,  26  N.  Dak.  622, 
145  X.  W.  587,  51  L.  R.  A.  (N.  S.) 
597,  that  the  garnishee  may  do  this, 
even  after  default,  by  motion  to  va- 
cate the  judgment  for  want  of  juris- 
diction. 

99  Mineral  Point  R.  Co.  v.  Bar- 
ron, 83  III.  365;  Terre  Haute  &c.  R. 
Co.  v.  Baker,  122  Ind.  433,  24  N.  E. 
83 ;  Smith  v.  Dickson,  58  Iowa  444, 
10  N.  W.  850;  Mull  v.  Jon^s,  33 
Kans.  112.  5  Pac.  388;  Davis  v. 
Meredith.  48  Mo.  263;  Clark  v.  Av- 
erill.   31    Vt.    512,    76  Am.    Dec.   131. 

iSee  1  Elliott  Gen.  Prac.  §  388, 
and  notes,  where  the  subject  is  ful- 
ly considered.  Compare  also  Chi- 
cago &c.  R.  Co.  V.  Sturm,  174  U.  S. 
710,  19  Sup.  Ct.  797,  43  L.  ed.  1144. 

2  Brashear  v.  West,  7  Pet.  (U.  S.) 
608,  8  L.  ed.  801;  First  Nat.  Bank 
V.   Armstrong.   101   Ind.  244;   Eman- 


§  72-: 


RAILROADS 


30 


accountability  to  the  defendant  at  that  lime.-'  Uut  where  tlie 
writ  is  served  on  one  agent  of  a  corporation  while  the  property 
is  in  the  actual  i)OSsession  of  another  agent,  and  the  latter  de- 
livers it  to  the  owner  before  the  first  agent  can.  in  the  exercise 
of  reasonable  diligence,  notify  the  other,  it  has  been  held  that 
the  corporation  is  not  liable.^  The  garnishee  may,  in  general, 
set  up  any  defense  that  he  would  have  had  if  sued  by  the  defend- 
ant,"' and  if  he  has  been  garnished  in  a  prior  proceeding  for  the 
same  matter  lie  ma}-  set  up  that  fact." 

§  724  (626).  What  may  be  reached  in  garnishment. — Real 
estate  is  not  subject  to  garnishment  unless  the  statute  so  pro- 
vides.'^ nor.  it  seems,  is  money  set  apart  for  the  payment  of  in- 
terest on  railroad  mortgage  bonds,'*  nor  are  funds  in  the  hands  of 


ucl  V.  Bridger,  L.  K.  9  Q.  B.  286; 
Holmes  v.  Tutton.  5  EI.  &  B.  65. 
But  in  Smitli  v.  Boston  &c.  R.  Co., 
33  N.  H.  337.  it  is  said  tliat  his 
liability  is  determined  by  the  state  of 
facts  existing  at  the  time  of  his  dis- 
closure and  set   forth   therein. 

•5  Cleanay  v.  Junction  R.  Co.,  26 
Ind.  375 ;  Huntington  v.  Risdon,  43 
Iowa  517;  Getchell  v.  Chase,  124 
Mass.  366;  Baltimore  &c  R.  Co.  v. 
Wheeler,  18  Md.  372 ;  Reagan  v.  Pa- 
cific R.  Co.,  21  Mo.  30;  Lieberman 
V.   Hoffman,   102   Pa.    St.  590. 

■*  Bates  V.  Chicago  &c.  R.  Co.,  60 
Wis.  296,  19  N.  W.  72,  50  Am.  Rep. 
369.  This  seems  to  us  a  just  deci- 
sion. 

5  1  Elliott  Gen.  Prac,  §  388 ; 
Cox  V.  Russell,  44  Iowa  556,  562 ;  Ha- 
zen  V.  Emerson,  9  Pick.  (Mass.)  144 
(statute  of  limitations)  ;  Benton  v. 
Lindell.  10  Mo.  557;  Wheeler  v.  Em- 
erson, 45  N.  H.  526;  Pennell  v. 
Grubb,  13  Pa.  St.  552  (set-off).  See 
generally  Center  v.  McQuestion,  24 
Kans.  480;  Schuler  v.  Israel,  120  U. 
S.    506.    7    Sup.    Ct.    648,    30    L.    cd. 


707;  North  Chicago  &c.  Co.  v.  St. 
Louis  &c.  Co.,  152  U.  S.  590,  14 
Sup.  Ct.  710,  38  L.  ed.  565 ;  Sauer 
V.  Nevadaville,  14  Colo.  54,  23  Pac. 
87.  But  see,  as  to  property  fraud- 
ulently transferred.  Lamb  v.  Stone, 
11  Pick.  (Mass.)  527;  Cummings  v. 
Fearey,  44  Mich.  39,  6  N.  W.  98. 
See  generally  as  to  garnishee's  de- 
fenses, notes  in  13  Am.  Dec.  341  and 
100  Am.  Dec.  511. 

GHouston  V.  Walcott,  7  Iowa  173; 
Royer  v.  Fleming,  58  Mo.  438 ;  Deal- 
ing V.  New  York  &c.  R.  Co.,  8  N.  Y. 
St.  386;  Robarge  v.  Central  Vt.  R. 
Co.,  18  Abb.  N.  Cas.  (N.  Y.)  363; 
Everdell  v.  Sheboygan  &c.  Co.,  41 
Wis.  395.  But  see  Alabama  &c.  R.  Co. 
V.  Chumley,  92  Ala.  317,  9  So.  286. 

"  Risley  v.  Welles,  5  Conn.  431 ; 
Stedman  v.  Vickery,  42  Maine  132 ; 
How  V.  Field,  5  Mass.  390;  Hunter 
V.  Case,  20  Vt.  195;  National  &c. 
Bank  v.  Braincrd,  65  Vt.  291,  26 
Atl.  723. 

8  Galena  &c.  R.  Co.  v.  Alcnzies,  26 
111.    122.      But   see    Smith    v.    ICastern 


31 


ACTIONS   BY   AND  AGAINST  CORPORATIONS 


^724 


an  officer  or  agent  of  the  company  garnishable  in  an  ordinary 
action  against  the  company  itself,*^  for  the  possession  by  an  agent 
of  money  collected  for  his  principal  is  usually  deemed  to  be 
the  possession  of  the  principal. ^*^  It  is  said  with  what  appears  to 
be  good  reason,  that  stock  cannot  be  garnished  in  the  hands  of 
a  railroad  company  for  the  debts  of  the  stockholders,  as  the  cor- 
poration, while  a  "going  concern,"  is  not  required  to  pay  the 
stockholders  anything  but  proper  dividends  and  they  are  not  its 
creditors. ^^  But  provision  is  usually  made  for  reaching  shares 
of  stock,  or  the  stockholder's  interest,  by  attachment,^^  ^nd  an 
unpaid  subscription  for  which  a  call  has  been  made  is  subject 
to  garnishment  at  the  instance  of  the  corporate  creditors, ^^^  al- 
though it  is  held  otherwise  where  no  call  has  been  made.^"*  It 
has  been  held  that  property  in  transit,  in  another  county,  in  the 
hands   of  a   railroad   company,  cannot  be   garnished.^"'   but   that 


R.  Co.,  124  ]\lass.  154;  Mississippi 
&c.  R.  Co.  V.  United  States  Exp.  Co., 
81    111.  534 

9  First  Nat.  Bank  v.  Davenport 
&c.  R.  Co..  45  Iowa  120;  Wilder  v. 
Shea,  13  Bush  (Ky.)  128  Pettin- 
gill  V.  Androscoggin  R.  Co.,  51 
Maine  370 ;  Fowler  v.  Pittsburgh  &c. 
R.  Co.,  35  Pa.  St.  22;  McGraw  v. 
Memphis  &c.  R.  Co.,  5  Coldw. 
(Tenn.)  434.  Contra,  Littleton  Nat. 
Bank  v.  Portland  &c.  Co.,  58  N.  H. 
104;  Everdell  v.  Sheboygan  &c.  R. 
Co.,  41  Wis.  395.  Other  authorities 
on  both  sides  are  cited  in  3  Thomp. 
Corp.    (2d  ed.)   §3370. 

10  Neuer  v.  O'Fallon,  18  Mo.  277, 
59  Am.  Dec.  313;  Hall  v.  Filter  Mfg. 
Co.,  10  Phila.  (Pa.)  370;  Flanagan 
V.  Wood,  33  Vt.  332. 

iiYounkin  v.  Collier,  47  Fed.  571; 
Planters'  &c.  Bank  v.  Leavens,  4 
Ala.  753;  Ross  v.  Ross,  25  Ga.  297; 
Mooar  v.  Walker,  46  Iowa  164.  See 
also  Smith  v.  Downey,  8  Ind.  App. 
175,  34  N.  E.  823;  Ashley  v.  Quin- 
tard,    90   Fed.   84.     But    see    Harrell 


v.  Mexico  &c.  Co.,  73  Tex.  612,  11 
S.  W.  863;  Baker  v.  Wasson,  53 
Tex.  150.  See  generally  Simpson 
V.  Jersey  City  &c.  Co.,  165  N.  Y. 
193,  58  N.  E.  896,  55  L.  R.  A.  796, 
and  note. 

1- Chesapeake  &c.  R.  Co.  v.  Paine, 
29  Grat.  (Va.)  502;  Shenandoah 
Valley  R.  Co.  v.  Griffith,  76  Va.  913, 
13  Am.  &  Eng.  R.  Cas.  120,  and 
note.  But  only,  as  a  rule,  m 
the  state  in  which  the  company  is  in- 
corporated. Winslow  v.  Fletcher,  53 
Conn.  390,  55  Am.  Rep.  122,  13  Am. 
&  Eng   Corp.   Cas.  39. 

i3Joseph  V.  Davis  (Ala.),  10  So. 
830;  Kern  v.  Chicago  &c.  Assn.,  140 
111.  371,  29  N.  E.  1035;  Hannah  v. 
Moberly  Bank,  67  Mo.  678. 

1^  Teague  v.  Le  Grand,  85  Ala. 
493,  5  So.  287,  7  Am.  St.  64;  Brown 
v.  Union  Ins.  Co.,  3  La.  Ann.  177; 
McKelvey  v.  Crockett,  18  Nev.  238, 
2  Pac.  386;  Bunn  Appeal,  105  Pa. 
St.  49,   51   Am.  Rep.  166. 

1'' Western  R.  Co.  v.  Thornton,  60 
Ga.  300;  Illinois  C.  R.  Co.  v.  Cobb, 


KAll.kOADS 


32 


property  mav  be  garnislK-d.  after  it  has  reached  its  destinalion, 
while  held  by  the  company  as  a  warehouseman. i''  And  ^o  prop- 
erty in  possession  of  the  carrier  awaiting  shipment  has  been 
held  subject  to  garnishment  at  any  time  before  its  transit  has 
commenced.'"  Property  in  custodia  legis  is,  as  a  general  rule, 
exempt  from  attachment  or  garnishment  in  the  hands  of  the 
offtcer,'*^  but  there  are  some  cases  in  which  the  earnings  or  other 
property  of  a  railroad  company  have  been  permitted  by  the  courts 


48  111.  402;  Bingham  v.  Lamping.  26 
Pa.  St.  240;   Pennsylvania  R.  Co.  v. 
Pennock,  51   Pa.  St.  244,  254;  Bates 
V.   Chicago  &c.  R.  Co.,  60  Wis.  296, 
19  N.  W.  72,  50  Am.  Rep.  369.  See 
also   Chicago  &c.   R.   Co.   v.    Painter, 
15    Nebr.   394;    Montrose   Pickle   Co. 
V.   Dodscn  &c.   Co.,  76  Iowa   172,  40 
N.  W.  705.  14  Am.  St.  213;  Steven- 
ot   V.   Eastern   R.   Co.,  61    Minn.    104, 
63    N.    VV.    256,    28    L.    R.    A.    600. 
Contra,   Adams   v.    Scott,   104   Mass. 
164,  and  compare  Walker  v.  Detroit 
&c.  R.  Co..  49  Mich.  446,  13  N.  W. 
812.      In    several    of    the    cases    first 
cited    there    were    peculiar    circum- 
stances,  and    in    none    of   them,    per- 
haps, was  it  necessary  to  decide  that 
this  is  an  invariable  rule.    There  are 
forcible       reasons,       however,       for 
affirming    that    this    is    the    general 
rule    where    the    property    is   actually 
in  transit  at  a  distant  point.     As  to 
when   goods    in   transitu   may  be  at- 
tached, see  note  in  14  Am.  &  Eng.  R. 
Cas.    700,    709;    Locke    Foreign    At- 
tachment   32.      If    it    is    within    the 
jurisdiction  of  the  court  there  seems 
to   be    no   good    reason    why   it   may 
not   be   garnished    in    a   proper   case. 
Roscnbush  v.  Bernhcimcr,  211   Mass. 
146,  97  N.  E.  984,  Ann.  Cas.  1913A, 
1317;   Landa  v.    Hoick   &c.   Co.,    129 
Mo.  663,  31   S.  W.  900,  50  Am.   St. 


459n.  But  where  it  is  in  actual 
transit  at  a  distant  point  not  w-ithin 
the  jurisdiction  of  the  court  it  ought 
not  to  be  subject  to  garnishment  in 
such  court.  See  authorities  first 
cited  in  this  note ;  also  Pittsburgh 
&c.  R.  Co.  V.  Cox,  36  Ind.  App.  291, 
297,  7Z  N.  E.  120,  114  Am.  St.  277, 
and  authorities  there  cited. 

i(>  Cooley  V.  Minnesota  &c.  Co.,  53 
Minn.  327,  55  N.  W^  141.  39  Am.  St. 
609,  55  Am.  &  Eng.  R.  Cas.  616. 
But  compare  Madden  v.  Union  Pac. 
R.  Co.,  89  Kans.  282,  131  Pac.  552, 
Ann.  Cas.  1914D,  78  (holding  that 
the  process  was  abused  and  that  an 
execution  instead  of  a  garnishment 
summons  should  have  been  sent  to 
the  defendant's  warehouse). 

17  Landa  v.  Hoick,  129  Mo.  663,  31 
S.  W.  500.  50  Am.  St.  459,  and  note. 
See  also  Malott  v.  Johnson,  2i7  Ind. 
App.  678.  77  N.  E.  866;  Rosenbush 
V.  Bcrnheimer.  211  Mass.  146.  97  N. 
E.  984,  Ann.  Cas.  1913A,  1317.  But 
see  post,  §§  2314,  2553. 

1''^  Averill  v.  Tucker.  2  Cranch.  (U. 
S.)  544.  Fed.  Cas.  No.  670;  Field  v. 
Jones,  11  (ia.  413;  Peoi)le  v.  Brooks, 
40  Mich,  m,  29  Am.  Rep.  534; 
Taylor  v.  Carryl,  24  Pa.  St.  259; 
Hill  v.  La  Crosse  &c.  Railroad  Co.. 
14     Wis.     291,     80     Am.   Dec.   783. 


33 


ACTIONS   BV   AND  AGAINST   CORPORATIONS 


§724 


to  be  attached  or  garnished  in  the  hands  of  a  receiver/''  and 
such  earnings,  although  subject  to  a  mortgage,  are  generally 
liable  to  garnishment  until  a  foreclosure  is  had  or  possession  is 
taken  by  the  trustee.-*'  Bonds  of  a  foreign  corporation  in  the 
hands  of  an  agent  for  sale  have  been  held  in  New  York  not  to  be 
liable  to  attachment  against  the  company. ^^  And  it  has  been  held 
in  Massachusetts  that  a  railroad  company,  which  has  an  ar- 
rangement with  other  companies  having  lines  that  form  a  con- 
tinuous connection,  to  make  monthly  settlements  with  the  com- 
pany whose  road  joins  its  own,  including  therein  amounts  due 
the  other  connecting  roads  beyond,  is  not  liable,  as  trustee  in 
foreign  attachment,  to  the  first  connecting  carrier  for  money  due 
the  other  companies  under  the  agreement. 2- 


See  also  as  to  judgment  of 
foreign  court,  Wabash  R.  Co. 
V.  Tourville,  179  U.  S.  322,  21 
Sup.  Ct.  113,  45  L.  ed.  210;  Boyk 
V.  Musser  &c.  Co.,  88  Minn.  456,  93 
N.  W.  520,  97  Am.  St.  538. 

19  Phelan  v.  Ganebin,  5  Colo.  14; 
First  Nat.  Bank  v.  Portland  &c.  R. 
Co.,  2  Fed.  831 ;  Humphreys  v.  Hop- 
kins, 81  Cal.  551,  22  Pac.  892,  6  L. 
R.  A.  792,  51  Am.  St.  76.  And  see 
Conover  v.  Ruckman,  33  N.  J.  Eq. 
303 ;  Gaither  v.  Ballew,  4  Jones  L. 
(N.  Car.)  488,  69  Am.  Dec.  763; 
Hurlburt  v.  Hicks,  17  Vt.  193,  44 
Am.  Dec.  329;  Wehle  v.  Conner,  83 
N.  Y.  231;  Warren  v.  Booth,  51 
Iowa  215,  1  N.  W.  502;  Robertson 
V.  Detroit  &c.  Works,  152  Mich.  612, 
116  N.  W.  196. 

20  Smith  V.  Eastern  &c.  R.  Co., 
124  Mass.  154;  Mississippi  &c.  R. 
Co.  V.  United  States  Express  Co.,  81 
111.  534;  De  Graff  v.  Thompson,  24 
Minn.  452 ;  Galveston  &c.  R.  Co.  v. 
Cowdrey,  11  Wall.  (U.  S.)  459,  20 
L.  ed.  199 ;  Gilman  v.  Illinois  &c. 
Co.,   91   U.    S.   603,   23   L.    ed.    405; 


Noyes  v.  Rich,  52  Maine  115.  But 
see  Dunham  v.  Isett,  15  Iowa  284. 
In  Milwaukee  &c.  R.  Co.  v.  Brooks 
&c.  Works,  121  U.  S.  430,  7  Sup.  Ct. 
1094,  30  L.  ed.  996,  30  Am.  &  Eng. 
R.  Cas.  499,  it  was  held  that  funds 
belonging  to  a  leased  road  operated 
temporarily  by  the  mortgage  trus- 
tee of  the  lessor  road  could  be 
garnished  in  his  hands  by  a  creditor 
of  the  lessee  company.  See  also 
Root  &c.  V.  Davis,  51  Ohio  St.  29,  36 
N.  E.  669,  23  L.  R.  A.  445. 

21  Coddington  v.  Gilbert,  17  N.  Y. 
489.  See  also  as  to  bonds  pledged 
as  collateral  or  in  the  hands  of  third 
persons.  Tweedy  v.  Bogart,  56 
Conn.  419,  15  Atl.  374;  Galena  &c. 
R.  Co.  v.  Stahl,  103  111.  67,  with 
which  compare  Warren  v.  Booth,  53 
Iowa  742,  5  N.  W.  598. 

22  Chapin  v.  Connecticut  &c.  R. 
Co.,  16  Gray  (Mass.)  69.  So,  where 
goods  are  shipped  over  several  roads 
it  is  held  that  the  consignee  is  not 
liable  as  garnishee  to  the  road  de- 
livering the  goods  for  freight  due 
the    others.     Gould    v.    Newbuiyport 


§725 


RAILROADS 


34 


§  725  (627).  Garnishment  of  employes'  wages. — Railroad  com- 
panies arc  frequently  garnished  in  actions  against  their  em- 
ployes, but  in  most  of  the  states  there  are  statutes  providing 
that  the  wages  of  employes  for  a  specified  period,  or  to  a  speci- 
fied amount,  shall  be  exempt.  It  has  been  held  that  a  foreign 
railroad  company,  doing  business  in  another  state,  may  be  gar- 
nished in  the  latter  state  for  the  debt  of  a  non-resident  employe 
contracted  out  of  such  state,-''  and  that  a  corporation  organized 
under  the  laws  of  the  United  States,  where  the  w^ages  arc  earned 
in  a  state  in  which  both  the  employe  and  the  creditor  reside,  may 
be  garnished  in  another  state  in  which  the  company  is  personally 
served.--*  I'ut.  on  the  other  hand,  it  has  been  held  by  another 
court  that  wages  due  from  a  company  incorporated  in  one  state 
to  an  employe  in  that  state  cannot  l)e  reached  by  a  creditor  in 
another  state  by  attachment  against  the  debtor  and  garnishment 
of  the  corporation. 2^     In  any  event,  the   garnishee  proceedings 


R.  Co.,  14  Gray  (Mass.)  472.  See, 
however,  as  to  consolidated  com- 
pany, Wabash  &c.  R.  Co.  v.  Dougan, 
142' 111.  248,  31  N.  E.  594,  34  Am. 
St.  74.  Compare  Johnson  v.  I'liion 
Pac.    R.    Co.,    145    Fed.   249. 

23  Burlington  &c.  R.  Co.  v. 
Thompson,  31  Kans.  180,  1  Pac.  622, 
47  Am.  Rep.  497;  Carson  v.  Mem- 
phis &c.  R.  Co..  88  Tenn.  646,  13 
S.  W.  388,  17  Am.  St.  921.  See 
also  Chicago  &c.  R.  Co.  v.  Sturm. 
174  U.  S.  710,  19  Sup.  Ct.  797.  43 
L.  ed.  1144;  King  v.  Cross,  175  U. 
S.  396,  20  Sup.  Ct.  131,  44  L.  ed. 
211;  Rowland  v.  Chicago  &c.  R.  Co., 
134  Mo.  474,  36  S.  W.  29;  Harris 
V.  Balk,  198  U.  S.  215,  25  Sup.  Ct.  625, 
49  L.  ed.  1023;  Bolton  v.  Pennsyl- 
vania R.  Co.,  88  Pa.  St.  261;  Neu- 
felder  v.  German  American  Ins.  Co., 
6  Wash.  336,  33  Pac.  870,  22  L.  R. 
A.  287,  36  Am.  St.  166;  note  to 
Goodwin  v.  Clayter.  67  L.  R.  A.  209. 
ante,  §  721.     But     compare     Central 


Jrust  Co.  V.  Chattanooga  &c.  R. 
Co.,  68  Fed.  685,  and  authorities 
there  cited. 

-■«  Mooney  v.  Union  Pac.  R.  Co., 
60  Iowa  346,  14  N.  W.  343.  Fol- 
lowed in  Oberfelder  v.  Union  Pac. 
R.  Co.,  60  Iowa  755.  14  N.  W.  255, 
and  approved  in  Carson  v.  Memphis 
&c.  R.  Co..  88  Tenn.  646,  13  S.  W. 
588.  17  -Am.  St.  921.  See  also  note 
to  Goodwin  v.  Claytor,  67  L.  R.  A. 
209.  and  ante,  §  721. 

'•i^Louisville  &c.  R.  Co.  v.  Dooley, 
78  Ala.  524.  See  also  Drake  v. 
Lake  Shore  &c.  R.  Co.,  69  Mich. 
168,  37  N.  W.  70,  13  Am.  St.  382; 
Louisville  &c.  R.  Co.  v.  Nash.  118 
Ala.  477,  23  So.  825.  41  L.  R.  A.  331, 
72  Am.  St.  181  ;  Atchison  &c.  R.  Co. 
V.  Mas^ard.  6  Colo.  App.  85,  39  Pac. 
985.  But  it  will  generally  be  found 
in  these  cases  that  the  garnishee  Iiad 
no  property  of  the  dcfendani.  or 
(lid  not  owe  him  a  debt  in  the  state 
in  wliich  the  suit  was  brought.     The 


35 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


§725 


bind  only  the  amount  due  at  the  date  of  the  service  of  the  writ 
and  do  not  reach  wages  subsequently  earned. ^^  So.  under  stat- 
utes providing-  that  tlie  debt  must  be  due  "absolutely  and  with- 
out contingency,  "  it  is  held  that  where  the  contract  of  employ- 
ment provides  that  the  amount  of  work  done  during  one  month 
and  the  wages  to  be  paid  therefor  shall  be  estimated  and  deter- 
mined after  the  end  of  the  month,  such  earnings  cannot  be  gar- 
nished in  the  hands  of  the  company  before  the  end  of  the 
month.-'''  Exemption  laws  have  no  extraterritorial  effect, -"^  and, 
as  a  general  rule,  neither  a  debtor  nor  his  garnishee  can  obtain 
the  benefit  of  the  exemption  laws  of  the  state  in  which  they 
reside  when  sued  in  another  state  ;-''  but,  where  wages  are  ex- 
empt in  both  states,  it  has  been  held  that  the  debtor  will  be  en- 
titled to  the  exemption,  and  that  it  is  the  duty  of  the  garnishee 
to  claim  it  for  him.^*^     The  law  upon  this  subject,  however,  is 


general  subject  is  considered  and 
other  authorities  on  both  sides  are 
reviewed  in  the  note  to  Goodwin 
V.  Claytor,  67  L.  R.  A.  209,  et  seq ; 
and  in  the  note  to  National  Bank 
V.  Furtick,  69  Am.  St.  99,  112,   115. 

26  Burlington  &c.  R.  Co.  v. 
Thompson,  31  Kans.  180,  1  Pac.  622, 
47  Am.  Rep.  497. 

27  Williams  v.  Androscoggin  &c. 
R.  Co.,  36  Maine  201,  58  Am.  Dec. 
742;  Fellows  v.  Smith,  131  Mass. 
363.  See  also  Dawson  v.  Iron 
Range  &c.  R.  Co.,  97  Mich.  33,  56  N. 
W.  106.  But  compare  Ware  v. 
Gowen,  65  Maine  534. 

28  See  Central  Trust  Co.  y.  Chatta- 
nooga &c.  R.  Co.,  68  Fed.  685;  Chi- 
cago &c.  R.  Co.  V.  Sturm,  174  U. 
S.  710,  19  Sup.  Ct.  797,  43  L.  ed. 
1144;  Pennsylvania  R.  Co.  v.  Rogers, 
52  W.  Va.  450,  44  S.  E.  300,  62 
L.  R.  A.  178.  But  see  Drake  v. 
Lake  Shore  &c.  R.  Co.,  69  Mich. 
168,  37  N.  W.  70,  13  Am.  St.  382; 
Missouri   Pac.   R.   Co.  v.   Sharitt.   43 


Kans.  375,  23  Pac.  430,  8  L.  R.  A. 
385,  19  Am.  St.  143,  and  authori- 
ties there  cited  in  opinion  and  in 
note. 

2i>  The  garnishee  is  not  bound 
therefore,  to  claim  any  exemption 
for  the  debtor.  East  Tennessee  &c. 
R.  Co.  V.  Kennedy,  83  Ala.  462,  3 
So.  852,  3  Am.  St.  755;  Lieber  v. 
Union  Pac.  R.  Co.,  49  Iowa  6«h,  22 
N.  W.  919;  Mooney  v.  Union  Pac. 
R.  Co.,  60  Iowa  346,  14  N.  W.  343, 
9  Am.  &  Eng.  R.  Cas.  131;  Broad- 
street  v.  Clark,  65  Iowa  670,  22  N. 
W.  919;  Burlington  &c.  R.  Co.  v. 
Thompson,  31  Kans.  180,  1  Pac.  622, 
47  Am.  Rep.  497;  Morgan  v.  Ne- 
ville, 74  Pa.  St.  52;  Carson  v.  Mem- 
phis &c.  R.  Co.,  88  Tenn.  646,  13 
S.  W.  588,  17  Am.  St.  921;  Eichel- 
burger  v.  Pittsburgh  &c.  R.  Co. 
(Ohio),  9  Am.  &  Eng.  R.  Cas.  158; 
But  see  Pierce  v.  Chicago  &c.  R. 
Co.,  36  Wis.  283. 

3  0  Mineral  Point  R.  Co.  v.  Barron, 
83   111.   365;    Chicago   &c.   R.    Co.   v. 


§725 


RAILROADS 


36 


not  well  settled,  and  the  question  is  not  entirely  free  from 
doubt. ^^  Indeed,  it  has  been  held  that  a  resident  of  a  state,  in 
which  the  debt  is  contracted  and  payable,  is  not  subject  to  attach- 
ment or  garnishment  in  another  state.^-  Thus,  where  the  statute 
made  it  a  criminal  offense  for  any  person  to  send  a  claim  against 
a  resident  debtor  out  of  the  state  for  collection,  in  order  to  evade- 
the  exemption  laws,  it  was  held  that  injunction  would  lie  to  re- 
strain a  resident  of  the  state  from  sending  the  claim  to  another 
state  and  there  prosecuting  attachment  proceedings  for  the  pur- 
pose of  evading  the  exemption  law.^^  In  another  case  it  was  held 
that  a  railroad  company  was  liable  to  an  employe  for  w^ages 
earned  and  due  in  the  state  in  which  suit  was  brought  and  in 
which  all  parties  resided,  notwithstanding  the  pendency  of  gar- 
nishment proceedings  against  the  company  in  another  state  to 
reach  the  same  wages. ^^    The  court  took  the  ground  that  it  had 


Ragland,  84  111.  375;  Wabash  R.  Co. 
V.  Douijan.  142  111.  248,  31  N.  K. 
594,  34  Am.  St.  74;  Terre  Haute 
&c.  R.  Co.  V.  Baker,  122  Ind.  433, 
24  N.  E.  83;  Missouri  Pac.  R.  Co. 
V.  Maltby,  34  Kans.  125,  8  Pac.  .135: 
Wright  V.  Chicago  &c.  R.  Co.,  19 
Nebr.  175,  27  N.  W.  90,  56  Am.  Rep. 
747;  Missouri  Pac.  R.  Co.  v.  Whip- 
sker,  77  Tex.  14,  13  S.  W.  639.  8  L. 
R.  A.  321,  19  Am.  St.  734;  Kan- 
sas City  &c.  R.  Co.  V.  Cough,  35 
Kans.  1,  10  Pac.  89.  In  several  of 
these  cases,  however,  the  statute  of 
the  starte  in  which  the  suit  was 
brought  was  construed  as  exemp- 
ting wages  attached  or  garnished  in 
the  state,  no  matter  whether  the  em- 
ploye is  a  resident  or  a  non-resi- 
dent. 

•''•1  See  Moore  v.  Chicago  &c.  R. 
Co.,  43  Iowa  385 ;  Carson  v.  Mem- 
phis &c.  R.  Co.,  88  Tenn.  646.  13 
S.  W.  588.  17  Am.  St.  921;  Chica- 
go &c.  R.  Co.  v.  Meyer,  117  Ind.  563, 
19  N.  E.  320;  Baltimore  &c.  R.  Co. 


V.    May,    25    Ohio    St.    347;    note    in 
67  L.  R.  A.  222;  and  ante,  §  721. 

32  Bush  V.  Nance,  61  Miss.  237 ; 
Wilson  V.  Joseph,  107  Ind.  490,  8  N. 
E.  616 ;  Kestler  v.  Kern,  2  Ind.  App. 
488,  28  N.  E.  726;  Illinois  Cent.  R. 
Lo.  V.  Smith,  70  Miss.  344,  12  So. 
461,  19  L.  R.  A.  577,  35  Am.  St. 
651.  But  see  ante.  §  723,  notes  94, 
95. 

3-"''  Cole  V.  Cunningham,  133  U.  S. 
107.  10  Sup.  Ct.  269,  33  L.  cd.  538; 
Mason  v.  Beebee,  44  Fed.  556: 
Engel  V.  Schcuerman,  40  Ga.  206,  2 
Am.  Rep.  573;  Wilson  v.  Joseph. 
107  Ind.  490.  8  N.  E.  616;  Mum- 
per V.  Wilson.  72  Iowa  163,  33  N. 
W.  449,  2  Am.  St.  238;  Missouri 
Pac.  R.  Co.  V.  Maltby,  34  Kans.  125, 
8  Pac.  235 ;  Zimmerman  v.  Franke, 
,34  Kans.  650.  9  Pac.  747;  Keyser 
V.  Rice.  47  Md.  203.  28  Am.  Rep.  448; 
Snnok  V.  Snctzer,  25  Ohio  St.  516; 
Dillon  V.  Foster,  4  Allen  (Mass.V 
545. 

34  Illinois   Cent.   R.   Co.   v.   Smith. 


n 


ACTIONS   BV   AND   AGAINST   CORPORATIONS 


§726 


sole  jurisdiction ;  that  it  would  not  presume  that  the  foreign 
court,  upon  being  duly  advised,  would  proceed  .to  judgment 
against  the  garnishee,  and  that,  in  any  event,  it  would  protect  and 
enforce  the  exemption  laws  of  its  own  state. 

§  726  (628).  Injunction — Generally. — A  railroad  company  is 
subject  in  general  in  a  court  of  equity  to  the  same  remedies  as 
an  individuals^  In  other  words,  the  jurisdiction  of  equity  is  the 
same  in  its  general  nature  over  corporations  as  it  is  over  natural 
persons.  As  a  general  rule  any  wrongful  invasion  by  it  of  the 
rights  of  others  may  be  prevented  by  injunction, ^'^  provided  a 
complete  remedy  at  law  is  not  available. •'^^  Equity  may  refuse 
to  interfere,  however,  where  an  injunction  would  work  great  in- 


70  Miss.  344,  12  So.  461,  19  L.  R.  A. 
577,  35  Am.  St.  651  (overruled,  how- 
ever, in  Southern  Pac.  R.  Co.  v. 
J.  A.  Lyon  &c.  Co..  99  Miss.  186, 
54  So.  728,  Ann.  Cas.  1913D,  800). 
See  also  Missouri  Pac.  R.  Co.  v. 
Sharritt,  43  Kans.  375,  23  Pac.  430, 
8  L.  R.  A.  385,  19  Am.  St.  143,  44 
Am.  &  Eng.  R.  Cas.  657.  For  a 
review  of  the  conflicting  decisions  up- 
on the  general  subject,  see  note  to 
the  first  case  above  cited  in  19  L. 
R.  A.  577 ;  and  elaborate  note  in  67 
L.  R.  A.  209,  where  nearly  all  the 
most  recent  authorities  are  re- 
viewed. 

35  In  Stockton  v.  Central  R.  Co., 
50  N.  J.  52,  24  Atl.  964.  17  L.  R.  A. 
97,  an  injunction  was  granted  at  the 
suit  of  the  attorney-general  to  re- 
strain a  railroad  company  from 
carrying  out  a  lease  in  excess  of 
corporate  power  which  tended  to  the 
public  injury  and  to  defeat  public 
policy  by  creating  or  fostering  a 
monopoly. 

3*'  Wrongs  of  a  repeated  and  con- 
tinuous character  which  occasion 
damages    estimate    only    by    conjec- 


ture and  not  by  any  accurate  stand- 
ard may  be  enjoined.  Such  dam- 
ages are  irreparable  within  the 
meaning  of  the  United  States  stat- 
ute providing  for  an  injunction 
where  the  party  does  not  have  a 
plain,  adequate  and  complete  rem- 
edy at  law.  Payne  v.  Kansas  &c.  R. 
Co.,  46  Fed.  546.  The  prosecution 
of  an  action  at  law  may  be  enjoined 
in  a  proper  case.  Chicago  &c.  R. 
Co.  V.  Pullman  Palace  Car  Co.,  49 
Fed.  409. 

37  Planet  &c.  Co.  v.  St.  Louis  &c. 
R.  Co.,  115  Mo.  613,  22  S.  W.  616. 
Condemnation  proceedings  will  not 
be  enjoined  on  the  ground  that  there 
has  been  a  previous  condemnation 
of  the  same  land  for  the  same  pur- 
pose, resulting  in  a  verdict  assess- 
ing compensation,  since  that  fact  is 
in  itself  an  adequate  legal  defense, 
which  can  be  pursued  by  motion  in 
the  second  condemnation  suit.  Chi- 
cago &c.  R.  Co.  V.  Chicago,  143  111. 
641,  32  N.  E.  178;  Northern  Pac.  R. 
Co.  V.  Cannon,  49  Fed.  517.  Where 
the  plaintiffs  all  have  different  in- 
terests,   the    fact    that    a    number    of 


§726 


RAILROADS 


38 


jury  to  the  defcndant^^  and  the  plaintiff  will  suffer  but  a  slight 
injury  for  which  he  can  readily  be  compensated  by  damages.^^ 
The  court  may,  it  seems,  take  into  consideration  the  fact  that 
companies  are  common  carriers  and  quasi  public  in  their  nature, 
and  refuse  to  grant  an  injunction  for  slight  cause  where  it  would 
prevent  or  obstruct  the  operation  of  the  road  and  not  only  cause 
great  injury  to  it,  but  also  inconvenience  the  public"'     This  is 


actions  at  law  arise  out  of  the  same 
transaction  and  depend  upon  the 
same  matters  of  fact  and  law  is  not 
sufficient  warrant  for  enjoining  the 
prosecution  of  such  actions,  and  the 
joinder  of  the  different  parties  in- 
terested in  a  single  suit  in  chancery 
as  defendants  to  prevent  a  multi- 
plicity of  suits.  Tribbettc  v.  Illi- 
nois Central  R.  Co,  70  :Miss.  182,  12 
So.  32,  19  L.  R.  A.  660,  35  Am.  St. 
642.  Where  proceedings  by  a  city 
to  open  a  boulevard  across  a  rail- 
way company's  tracks  are  pending 
on  appeal,  a  bill  to  enjoin  the  city 
from  such  proceedings,  on  the 
ground  that  irreparable  injury  will 
be  done  to  the  company,  will  not 
lie,  as  the  question  is  a  legal  one, 
which  will  be  disposed  of  in  the 
condemnation  proceedings.  Detroit 
&c.  R.  Co.  V.  Detroit,  91  Mich.  444, 
52  X.  W.  52.  One  holding  land  un- 
der a  judgment  of  condemnahon 
may  maintain  suit  to  restrain  eject- 
ment proceedings  and  to  quiet  title, 
although  such  judgment  is  a  perfect 
defense  to  the  action  of  ejectment. 
Foltz  V.  St.  Louis  &c.  R.  Co.,  60 
Fed.  316.  An  action  of  ejecii/ient 
to  recover  land  upon  which  it  has, 
with  the  consent  of  plaintiff  and  his 
grantor,  built  its  tracks,  cattle  sheds, 
and  warehouse,  may  be  enjoined  at 
the  suit  of  a  railroad  company,  al- 
though it  has  no  title.     South  &c.  R. 


Co.  V.  Alabama  &c.  R.  Co..  102  Ala. 
236,  14  So.  747. 

•f*^  Scranton  v.  Delaware  &c.  Canal 
Co.,  12  Pa.  Co.  Ct.  283.  See  also 
Levi  V.  Worcester  &c.  St.  R.  Co. 
(Mass.),  78  N.  E.  853;  Stock  v. 
Hillsdale,  155  Mich.  375,  119  N.  W. 
435.  A  preliminary  injur.ction  will 
not  be  granted  to  restrain  a  com- 
pany "from  the  further  operation 
and  management"  of  a  leased  rail- 
road on  the  allegation,  among 
others,  that  the  roads  are  "parallel 
and  competing,"  and  the  lease  ultra 
vires,  and  contrary  to  the  provision 
of  the  constitution  where  all  the 
grounds  for  equitable  relief  are  de- 
nied ;  since  it  would  involve  difficult 
questions  of  law  and  fact,  and  would, 
if  granted,  work  incalculable  injury 
to  defendant  and  the  public.  Gum- 
mere  V.  Lehigh  Val.  R.  Co..  12  Pa. 
Co.  Ct.  106.  See  New  York  &c. 
R.  Co.  V.  O'Brien,  100  N.  Y.  S. 
316,    note    in    Ann..  Cas.    1913A,   248. 

•5"  Savannah  &c.  Canal  Co.  v.  Su- 
burban &c.  R.  Co.,  93  Ga.  240,  18 
S.  E.  824;  Abraham  v.  Myers,  29 
Abb.  N.  C.  (N.  Y.)  384,  23  N.  Y. 
225,  228.  See  also  Chicago  &c.  R. 
Co.  V.  McKeigue,  126  Wis.  574,  105 
X.  W.  1030. 

•*f  Torrey  v.  Camden  &c.  R.  Co.,  3 
C.  E.  Green  Ch.  (N.  J.)  293;  Cook 
V.  North  &c.  R.  Co.,  46  Ga.  618; 
Gammagc  v.  Georgia  &c.   R.  Co ,  65 


39  ACTIONS   BY   AND   AGAINST   CORPORATIONS  §  727 

particularly  true  in  regard  to  preliminary  injunctions  before 
the  case  can  be  heard  upon  its  merits.  With  this  possible  excep- 
tion, however,  the  rules  g-overning  injunctions  generally  are  ap- 
plicable, in  the  main,  at  least,  where  an  injunction  is  sought 
against  a  railroad  company.  We  need  not,  therefore,  further 
consider  the  elementar}"  rules,  but  will  refer  to  the  specific  classes 
of  cases  in  which  injunctions  are  usually  sought  against  railroad 
companies. 

§  727  (629).  Injunction  where  the  company  seeks  to  take  or 
condemn  lands. — \\'here  a  railroad  company  that  is  so  imper- 
fectly incorporated  as  not  to  possess  the  power  of  eminent  do- 
main, is  seeking  to  condemn  property  of  another  corporation 
necessary  for  its  use  in  carrying  on  its  business,  it  has  been  held 
that  such  condemnation  proceedings  may  be  enjoined. '^^  But  it 
is  the  general  rule  that  the  existence  of  a  corporation,  acting 
as  such  under  a  law  authorizing  it  and  with  which  it  has  at- 
tempted to  comply,  cannot  be  collaterally  attacked,  and  the  mere 
fact  that  there  may  be  cause  for  forfeiting  its  charter  will  not 
support  ejectment  or  an  injunction  at  the  suit  of  a  landowner 
whose  property  it  has  condemned  or  is  about  to  condemn.-^-  A 
railroad  company  may  be  enjoined  at  the  suit  of  a  party  injured 

Ga.  614;   Johnson  v.  United  R.   Co.,  remedies     or     irreparable     damages. 

227   Mo.  423.    127    S.   W.   63;    Griffin  Western    R.   &c.   v.   Alabama   &c.    R. 

V.  Southern  R.  Co..  150  N.  Car.  312.  Co.,  96  Ala.  272,  11  So.  483.  17  L.  R. 

64   S.    E.    16.     See   also    Indiana  &c.  A.  474.     See  also  Hruska  v.  Minne- 

R.    Co.    V.    Allen.    113    Ind.    581,    15  apolis  &c.  R.  Co.,  107  Minn.  98,  119 

N.    E.   446;    Gray  v.    Manhattan   &c.  N.  W.  491;  Lundberg  v.  Eastern  R. 

R.  Co.,  128  N.  Y.  499,  28  N.  E.  498;  Co.,   139  Wis.    161,    120  N.   W.   822. 

Schvvanzenbach  v.   Oneonta  &c.   Co.,  But   compare    Manigault    v.    Springs, 

144  App.  Div.  884,  129  X.  Y.  S.  384;  199  U.  S.  473.  26  Sup.  Ct.  127.  50  L. 

Montgomery  &c.  Co.  v.  Montgomery  ed.  274. 

&c.  Co.,   139  Fed.  353;  McCarthv  v.  42Brooklyn  &c.  R.  Co..  In  re,   125 

Bunker  Hill  Min.  &c.   Co..   164  Fed.  N.    Y.    434;    Cincinnati    &c.    R.    Co 

927.  V.    Clifford.    113    Ind.    460.    Bravard 

^1  Hoke  V.  Georgia  R.  &c.  Co..  89  v.    Cincinnati    &c.    R.    Co.,    115    Ind. 

Ga.  215,  15  S.  E.  124.    And  the  abuse  1,   17  N.  E.  185;  New  York  &c.   R. 

of  its   eminent   domain  powers   by  a  Co.    v.    New    York    &c.    R.    Co.,    52 

railroad   corporation   may  always   be  Conn.  274;  Briggs  v.  Cape  Cod  Ca- 

enjoined,    in   a   proper   case,    without  nal.  137  Mass.  71.     See  also  Rafferty 

reference    to    insufficiency    of    legal  v.   Central  Traction  Co.,   147  Pa.   St. 


§  727 


RAILROADS 


40 


thereby  from  appropriating  land  for  which  it  has  failed  to  make 
compensation  as  required  by  law,'*^  but  an  injunction  will  not  be 
granted  against  the  use  of  land  by  a  railroad  company  which 
has  taken  without  right,  where  the  owner  has  acquiesced  in  the 
appropriation  until  the  company  has  expended  money  thereon, 
and  the  public  interest  has  become  involved.'**  Where  the  corpo- 
ration is  given  power  to  take  lands  for  the  use  of  its  road,  it  may 
usualh',   within   the   statutory    limits,   exercise   its   discretion   as 


579,  23  Atl.  884,  30  Am.  St.  763.  See 
also  post,  §  1201. 

43  Chattanooga  &c.  R.  Co.  v. 
Jones,  80  Ga.  264,  9  S.  E.  1081; 
Lake  Erie  &c.  R.  Co.  v.  Michener, 
117  Ind.  465,  20  X.  E.  254;  Ka;isus 
City  &c.  R.  Co.  V.  St.  Joseph  &c.  R. 
Co.,  97  Mo.  457,  10  S.  W.  826,  3 
L.  R.  A.  240;  Ray  v.  Atchison  &c. 
R.  Co.,  4  Xebr.  439;  McCammon 
&c.  Lumber  Co.  v.  Trinity  &c.  R. 
Co.,  104  Tex.  8,  133  S.  W.  247,  Ann. 
Cas.  1913E,  870,  and  note;  Spencer 
V.  Point  Pleasant  &c.  R.  Co.,  23  W. 
Va.  406.  20  Am.  &  Eng.  R.  Cas.  i25 ; 
Lundberg  v.  Eastern  R.  Co.,  139  Wis. 
161,  120  X.  W.  822;  Elliott  Roads 
&  Streets  (3d  ed.),  §  272,  and  num- 
erous authorities  there  cited.  See  also 
post,  §§  1351,  1447.  But  it  has  been 
held  that  an  injunction  will  not  be 
granted  where  the  land  has  been 
condemned  in  a  court  of  competent 
jurisdiction,  but  the  landowner  has 
appealed  therefrom,  and  the  case  is 
pending  on  appeal.  Traverse  City 
&c.  R.  Co.  V.  Seymour,  81  Mich. 
378,  45  X.  W.  826.  See  Dillon  v. 
Kansas  City  &c.  R.  Co.,  43  Ecd. 
109.  And  there  are  other  cases  in 
which  the  construction  of  a  public 
work  on  condemned  ground  will  not 
be  enjoined  merely  because  compen- 
sation is  not  paid  in  advance.     Over- 


holser  v.  Oklahoma  Interurban  Trac. 
Co.,  29  Okla.  571,  119  Pac.  127; 
Whites'  Supp.  Thonip.  Corp.,  §  5677. 
The  construction  of  a  railroad  over 
condemned  land  will  not  be  re- 
strained for  errors  of  law  in  the 
condemnation  proceedings.  Cooper 
V.  Anniston  &c.  R.  Co.,  85  Ala.  106, 
4  So.  689.  The  fact  that  the  right 
to  immediate  possession  is  in  another 
who  has  purchased  ^■he  ri^^ht  to  UbC 
and  occupy  the  land  for  a  term  of 
twenty  years  at  a  sale  thereof  for 
non-payment  of  taxes,  does  nor  d'"- 
prive  the  landowner  of  the  right  to 
an  injunction  to  prevent  a  railroad 
from  occupying  the  land  until  com- 
pensation is  made.  Pratt  v.  Rose- 
land  R.  Co.,  50  X.  J.  Eq.  150,  24 
Atl.  1027.  Even  in  states  where  an 
injunction  is  only  granted  to  re- 
strain irreparable  injuries,  a  rail- 
road company  may  be  enjoined  from 
making  excavations  upon  land 
which  they  have  not  condemned. 
Baltimore  &c.  R.  Co.  v.  Lee,  75  Md. 
596,  23  Atl.  901. 

41  Roberts  v.  Xorthern  Pacific  R. 
Co.,  158  U.  S.  1,  15  Sup.  Ct.  756; 
39  L.  ed.  873 ;  Osborne  v.  Missouri 
Pac.  R.  Co.,  35  Fed.  84,  11  Fed.  830; 
Organ  v.  Memphis  &c.  R.  Co.,  51 
Ark.  235,   11    S.   W.  96;   Denver  &c. 


41 


ACTIONS  BV  AND  AGAINST   CORPORATIONS 


§727 


to  what  shall  be  taken ;  and  the  fact  that  it  owns-*^  or  could  ac- 
quire by  purchase^*^  adjoining  lands  which  would  answer  its  pur- 
pose will  not  entitle  the  landowners  to  an  injunction  where  the 
company  acts  in  good  faith.  Where  the  company  is  acting  in  bad 
faith  with  the  purpose  of  securing  lands  which  it  is  not  empow- 
ered to  hold,  equity  may  interfere.^'^  In  the  case  of  a  suit  for  an 
injunction  by  one  having  only  a  remote  or  indirect  interest  in 
lands,  which  are  subject  to  condemnation,  and  in  which  all  other 
interests  have  been  secured  by  the  company,  it  has  been  held 
that  the  court  may  dissolve  the  injunction  upon  a  bond  being 
filed  by  the  company  to  pay  all  damages  awarded  to  the  com- 
plainant in  an  action  at  law.-*^  A  railroad  company  has  been 
enjoined  from  shutting  up  a  private  right  of  way  which  fur- 
nished the  only  convenient  egress  from  the  plaintiff's  land  to 
the  public  highway,  even  after  the  acts  complained  of  had  actu- 
allv  been  committed. ^^  Where  the  railroad  company  has  ob- 
tained possession  of  land  for  its  right  of  way  under  contract  to 


R.  Co.  V.  Domke.  11  Colo.  247.  17 
Pac.  Ill;  Chicago  &c.  R.  Co.  v. 
Goodwin,  111  111.  273,  53  Am.  Rep. 
622;  Midland  &c.  R.  Co.  v.  Smith, 
113  Ind.  233:  Indiana  &c.  R.  Co.  v. 
Allen.  113  Ind.  581,  15  N.  E.  446, 
and  authorities  there  cited;  Lexing- 
ton &c.  R.  Co.  V.  Ormsby,  7  Dana 
(Ky.)  276;  Harlow  v.  Marquette 
&c.  R.  Co.,  41  Mich.  ZZ(,,  2  N.  W. 
48;  Western  &c.  R.  Co.  v.  Johnston, 
59  Pa.  St.  290;  Chambers  v.  Balti- 
more &c.  R.  Co.,  139  Pa.  St.  347, 
21  Atl.  2;  Pettibone  v.  Railroad  Co., 
14  Wis.  479.  Contra,  Louisville  &c. 
R.  Co.  V.  Liebfried,  92  Ky.  407,  17 
S.  W.  870. 

45  Stark  V.  Sioux  City  &c.  R.  Co., 
43  Iowa  501  ;  Dougherty  v.  Wabash 
&c.   R.   Co.,   19  Mo.  App.  419. 

**«  Lodge  V.  Philadelphia  &c.  R. 
Co.,  8  Phila.  (Pa.)  345;  Ford  v. 
Chicago  &c.  R.  Co.,  14  Wis.  609,  80 
Am.    Dec.    791;    New    York    &c.    R. 


Co.  V.  Kip,  46  N.  Y.  546,  7  Am.  Rep. 
385;   Eldridge  v.    Smith,  34  Vt.  484. 

•IT  Flower  v.  London  &c.  R.  Co.,  2 
Dr.  &  Sm.  330;  Great  Western  R. 
Co.  V.  May,  L.  R.  7  H.  L.  283;  Ev- 
ersfield  v.  Mid  Sussex  R.  Co.,  3  De 
G.  &  J.  286. 

4  8  Columbus  &c.  R.  Co.  v.  Withe- 
row,  82  Ala.  190,  3  So.  21. 

49  Lakeman  v.  Hannibal  &c.  R. 
Co.,  36  Mo.  App.  363.  And  an  in- 
junction will  be  granted  to  prevent 
the  closing  of  a  private  right  of 
way  under  the  railroad  track  re- 
served by  the  landowner  a  i  th? 
time  of  the  conveyance  of  t'le  rail- 
load  right  of  way,  b}'  which  com- 
munication  between  two  parts  of 
the  same  farm  are  established. 
Rock  Island  &c.  R.  Co.  v.  DiMick, 
55  Am.  &  Eng.  R.  Cas.  65.  See 
also  Lake  Erie  &c.  R.  Co.  v.  Young, 
135  Ind.  426,  35  N.  E.  177,  \\  .vm. 
St.  430.  58  Am.  &  Eng.  R.  Cas    6n5. 


§728 


RAILROADS 


42 


construct  its  road  in  a  particular  manner,  it  has  been  held  that 
it  may  be  enjoined  from  violating  the  contract.  Thus  a  con- 
tract by  a  railroad  company  to  maintain  and  keep  open  two  ex- 
isting passage  ways  for  stock  under  its  road  through  a  certain 
farm  is  sufficiently  certain  to  entitle  the  owner  of  the  farm  to 
an  injunction  against  its  violation,  although  the  size,  nature,  and 
location  of  the  ways  are  not  stated  in  the  contract.''*^ 

§  728   (630).     Injunction  where  railroad  is  laid  in  a  street. — 

An  abutting  owner  may  enjoin  it  from  occupying  a  street  or  other 
public  highway,  and  operating  its  road  therein  without  authority, 
upon  proof  of  special  damage,-"''  at  least  where  he  owns  the  fee 


50 Rock  Island  &c.  R.  Co.  v.  Dim- 
ick,  144  111.  628,  ZZ  X.  E.  291,  19  L. 
R.  A.  105.  But  compare  Sen'iie}-  v. 
Hutchinson  Interurban  R.  Co.,  90 
Kans.  610,  135  Pac.  678. 

51  Hart  V.  Buckner,  54  Fed.  925; 
Columbus  &c.  R.  Co.  v.  Witherovv, 
82  Ala.  190.  3  So.  23;  Kavanagh  v. 
Mobile  &c.  R.  Co.,  78  Ga.  271,  2  .S. 
E.  636;  Georgia  &c.  R.  Co.  v.  Ray, 
84  Ga.  Z7(),  43  Am.  &  Eng  R.  Cas. 
95;  Metropolitan  City  R.  Co.  v. 
City  of  Chicago,  96  111.  620;  Corn- 
wall V.  Louisville  &c.  R.  Co.,  ^7  Ky. 
72,  7  S.  W.  553;  Conner  v.  Coving- 
ton &c.  R.  Co.,  14  Ky.  L.  135,  19  S. 
W.  597;  Bell  v.  Edwards,  Z7  La.  Ann. 
475 ;  Riedinger  v.  Marquette  &c.  R. 
Co.,  62  Mich.  29;  Charles  H.  Hcvr 
&c.  Co.  v.  Citizens'  R.  Co.,  41  Mo. 
App.  63 ;  Story  v.  New  York  VA.  R. 
Co.,  90  N.  Y.  122,  48  Am.  Rep.  146 ; 
State  v.  Dayton  &c.  R.  Co.,  36  Ohio 
St.  434;  Barker  v.  Hartman  Stcl 
Co.,  129  Pa.  St.  551,  18  Atl.  55.S ; 
Ward  V.  Ohio  River  R.  Co.,  35  W. 
Va.  481.  See  also  post,  §  1447.  And 
see  generally  for  contiicting  c.iscs 
and  distinctions,  note  to  Roach  v. 
Nassau    Elec.    R.    Co.,   36   L.    R.    A. 


(N.  S.)  808,  et  seq.  Where  a  rail- 
road has  been  laid  in  a  street  by 
authority  of  the  legislature,  an  in- 
jured party  who  has  a  complete 
remedy  by  way  of  damages  for  any 
direct  injury  will  not  be  granted  an 
injunction.  Hyland  v.  Short  Route 
R.  Transfer  Co.,  10  Ky.  L.  900,  11 
S.  W.  79.  But  see  Georgia  &c.  R. 
Co.  v.  Ray,  84  Ga.  376,  11  S.  E.  352, 
43  Am.  &  Eng.  R.  Cas.  95.  Where 
a  company  is  authorized  to  con- 
struct and  operate  a  railroad  track 
in  a  street,  a  court  cannot  restrict 
the  number  of  trains  to  be  operated 
as  a  condition  precedent  to  the  con- 
struction of  the  road.  Kentucky  &c. 
Bridge  Co.  v.  Krieger,  93  Ky.  243, 
19  S.  W.  738.  In  Colorado,  an 
abutter  whose  fee  is  not  sought  to 
be  taken  can  not  enjoin  the  con- 
struction and  operation  of  a  railroad 
merely  because  he  does  not  receive 
in  advance  compensation  for  the 
damage  suffered  or  to  be  suffered 
l)y  him.  Denver  &c.  R.  Co.  v. 
Domke.  11  Colo.  247,  17  Pac.  777. 
In  West  Virginia  the  alnitting 
owners  on  a  street,  part  of  which 
is    occupied    bj'    a    railroad,    whether 


43 


ACTIONS   BV   AND  AGAINST    CORPORATIONS 


§728 


of  the  land  to  the  center  of  the  street.^-  Indeed,  where  his  ease- 
ment of  access  will  be  destroyed,  we  think  he  is  entitled  to  pur- 
sue this  remedy  whether  he  owns  the  fee  or  not.^^^  The  fact  that 
the  time  allowed  by  the  charter  in  which*  to  build  the  road  has 
expired  has  been  held  sufficient  to  show  that  the  building  of  the 
road  is  illegal  and  unauthorized.''^  It  is  held  in  some  states  that 
even  where  the  consent  of  the  legislature  and  of  the  municipal 
authorities  has  been  obtained  the  abutting  owner  may  enjoin  the 


tbey  own  the  fee  in  the  land  cov- 
ered by  the  street  or  not,  are  not 
entitled  to  enjoin  excavation  and 
construction  along  the  street  in  a 
careful  and  proper  manner,  unless 
tne  consequent  injury  to  them  will 
be  such  as  will  destroy  the  value  of 
their  property,  and  therefore  be 
(.■luivalent  to  a  virtual  taking  of  it 
by  the  railroad  company.  Arbenz 
V.  Wheeling  &c.  R.  Co.,  33  W.  Va. 
1,  10  S.  E.  14,  40  Am.  &  Eng.  R. 
Cas.  284.  See  Paquet  v.  Alt.  Tabor 
St.  R.  Co.,  18  Ore.  233,  29  Pac.  906; 
\'an  Horn  v.  Newark  &c.  R.  Co.,  48 
N.  J.  Eq.  332.  21  Atl.  1034. 

5  2  Where  the  fee  is  in  the  munici- 
pality some  authorities  hold  that 
an  abutting  owner  has  only  an 
action  at  law  for  his  damages.  Mills 
V.  Parlin,  106  111.  60;  Osborne  v. 
Missouri  Pac.  R.  Co.,  147  U.  S.  248, 
13  Sup.  Ct.  299,  Z7  L.  ed.  155.  See 
also  Smith  v.  Point  Pleasant  &c.  R. 
Co.,  23  W.  Va.  451;  Heath  v.  Des 
Aloines  &c.  R.  Co.,  61  Iowa  11  ;  Sea- 
board Air  Line  Ry.  v.  Southern  In- 
vest. Co.,  53  Fla.  832.  43  So.  235,  13 
Ann.  Cas.  18,  and  note.  It  has  al- 
so been  held  that  the  fact  that  the 
street  has  been  declared  vacale^f  by 
an  invalid  ordinance  gives  an  abut- 
ting owner  no  right  to  an  injunction, 
since  the  ordinance,  being  invalid. 
does  not  operate   to  revest   the   ii*ie 


to  the  street  in  the  abutting  owners. 
Corcoran  v.  Chicago  &c.  R.  Co.,  149 
111.  291,  27  N.  E.  68. 

5.>  See  Elliott  Roads  &  Streets 
(3d  ed.),  §§  850,  637-643,  651;  Rail- 
roads as  Additional  Servitude  to 
Streets,  1  Am.  &  Eng.  R.  Cas.  (N. 
S.)  1;  Field  v.  Barling,  149  111.  556, 
Z7  N.  E.  850,  24  L.  R.  A.  406,  41 
Am.  St.  311.  and  note;  Adams  v 
Chicago  &c.  R.  Co.,  39  Minn.  286,  39 
N.  W.  629,  1  L.  R.  A.  493,  12  Am. 
St.  644 ;  Hruska  v.  Minneapolis  &c. 
R.  Co.,  107  Minn.  98,  119  N.  W. 
491 ;  Theobold  v.  Louisville  &c.  R. 
Co.,  66  Miss.  279,  6  So.  230,  4  L.  R. 
A.  735,  14  Am.  St.  564;  Lockwo  J 
V.  Wabash  R.  Co..  122  Mo.  86,  26 
S.  W.  698,  24  L.  R.  A.  516,  43  A:r.. 
St.  547,  1  Am.  &  Eng.  R.  Cas.  (N. 
S.)  16,  and  note;  Abendroth  v. 
Alanhattan  R.  Co.,  122  N.  Y.  1.  25  N. 
E.  496,  11  L.  R.  A.  634,  19  Am.  S:. 
461  ;  White  v.  Northwestern  &c.  R. 
Co.,  113  N.  Car.  610,  18  S.  E.  330.  22 
L.  R.  A.  627 ;  Hall  v.  Pittsburgh  i^c. 
R.  Co..  85  Ohio  St.  148,  97  N.  E. 
381 ;  Dooly  Block  v.  Salt  Lake  &c. 
Co.,  9  Utah  31.  Z2,  Pac.  229.  24  L. 
R.  A.  610.  See  also  note  in  35  L. 
R.   A.    (N.   S.)    193. 

5-i  Bonaparte  v.  Baltimore  &c.  R. 
Co.,  75  Md.  340.  23  Atl.  784,  49  Am. 
&  Eng.  R.   Cas.   198. 


§728 


RAILROADS 


44 


construction  or  operation  of  the  railroad  until  his  damages  are 
assessed  and  paid.^^  Where  the  right  to  lay  a  railroad  track 
in  a  street  is  prohibited,  until  the  damage  is  ascertained  and  paid 
to  abutting  owners,  it  has  been  held  that  the  company  may  be 
enjoined  from  operation  of  the  road  until  payment  of  the  dam- 
ages, although  a  prior  judgment  for  the  damages  has  been  ob- 
tained in  an  action  at  law,  but  remains  unpaid.^"  Uut  the  right 
to  an  injunction  for  this  cause  may  be  lost  by  the  abutting  own- 
er's acquiescence  in  the  construction  of  the  road,-''^  or  in  its  use 
for  a  length  of  time  after  construction."'^  The  public  may  enjoin 
an  unauthorized  use  of  a  public  street  or  other  highway  by  an  ac- 
tion on  behalf  of  the  state  in  the  name  or  on  relation  of  the  at- 
torney-general or  other  proper  officer,^^  or  the  suit  for  an  injunc- 


5^  Imlay  v.  Union  Branch  R.  Co., 
26  Conn.  249,  68  Am.  Dec.  392; 
Georgia  &c.  R.  Co.  v.  Ray,  84  Ga. 
376,  11  S.  E.  352;  Cox  v.  LouisvilL- 
&c.  R.  Co.,  48  Ind.  178;  Barber  v. 
Saginaw  Union  R.  Co.,  83  Mich. 
299,  47  N.  VV.  219;  Pennsylvania  K. 
Co.  V.  Angel,  41  N.  J.  Eq.  316,  4 
Atl.  432,  36  Am.  Rep.  1;  Wager  v. 
Troy  &c.  R.  Co.,  25  N.  Y.  526; 
Stroub  V.  Manhattan  R.  Co.,  15  N 
Y.  S.  135,  39  N.  Y.  St.  378.  See 
Kemble,  Appeal  of,  140  Pa.  14,  21 
Atl.  225.  Contra,  Paquet  v.  Mt. 
Tabor  St.  R.  Co.,  18  Ore.  233,  22 
Pac.  906;  Ohio  River  R.  Co.  v. 
Gibbcns,  35  W.  Va.  57,  12  S.  E. 
1093;  O'Brien  v.  Baltimore  Belt  R. 
Co.,  74  Md.  363,  22  Atl.  141,  13  L.  R. 
A.  126;  Randall  v.  Jacksonville  St. 
R.  Co.,  19  Fla.  409.  See  Western 
R.  Co.  V.  Alabama  &c.  R.  Co.,  96  Ala. 
272,  11  So.  483,  17  L.  R.  A.  474.  Abut- 
ting owners  will  not  be  granted  an 
injunction  against  a  railroad  com- 
pany to  prevent  its  entering  into  a 
contract  with  the  county  commis- 
sioners whereby  it  is  permitted  to 
maintain  its  tracks  in  a  street  at  a 


grade  alleged  to  be  illegal;  the 
proper  remedy  is  mandamus  re- 
quiring the  county  commissioners 
to  perform  their  duties  under  the 
law.  Dyer  v.  Cincinnati  &c.  R.  Co., 
7  Ohio  Cir.   Ct.  255. 

^t>  Harbach  v.  Des  Moines  &c.  R. 
Co.,  80  Iowa  593,  44  N.  W.  348,  11  L. 
R.  A.  113. 

57  Merchants'  &c.  Co.  v.  Chicago 
&c.  R.  Co.,  79  Iowa  613,  44  N.  W. 
900;  Burkam  v.  Ohio  &c.  R.  Co.,  122 
Ind.  344,  23  N.  E.  799.  See  also 
notes  in  7  L.  R.  A.  (N.  S.)  991, 
and  23  L.  R.  A.    (_N.  S.)   433.' 

5S  Alerchants'  &c.  Co.  v.  Chicago 
&c.  R.  Co.,  79  Iowa  613,  44  N.  W. 
348.  See  also  Sunderland  v.  Mar- 
tin, 113  Ind.  411,  15  N.  E.  689;  Sta- 
ton  v.  Atlantic  Coast  Line  R.  Co., 
147  N.  Car.  428,  61  S.  E.  455,  17  L. 
R.  A.    (N.  S.)   949. 

'>'■>  Attorney-General  v.  Delaware 
&c.  R.  Co.,  27  N.  J.  Eq.  631  ;  Attor- 
ney-General V.  Metropolitan  R.  Co., 
125  Mass.  515,  28  Am.  Rep.  264; 
Commonwealth  v.  Pittsburgh  &c.  R. 
Co.,  24  Pa.  St.  159,  62  Am.  Dee.  372. 
See    also    Alabama    &c.    R.    Co.    v. 


45 


ACTIONS  BY   AND  AGAINST  CORPORATIONS 


§729 


tion  may  be  maintained  in  the  name  of  the  town  or  city,®''  or  other 
municipality  to  which  the  state,  has  confided  the  care,  manage- 
ment and  control  of  the  highway  involved.®^ 

§  729  (631).  Enjoining  a  nuisance. — An  injunction  may  gen- 
erally be  had  at  the  suit  of  the  state  to  restrain  unauthorized  acts 
by  which  the  public  has  been  or  will  be  injured. ^^  js^^  ^  public 
nuisance  is  a  criminal  ofifense  which  may  be  reached  by  indict- 
ment or  information  in  the  ordinary  course  of  a  prosecution  for 
crime,  it  has  been  doubted  whether  an  injunction  will  lie  to  re- 
strain it  at  the  suit  of  the  state,  or  its  proper  representative.  But 
the  jurisdiction  of  equity  in  such  cases  is  well  established  in 
England,  as  is  shown  by  the  authorities  already  cited,  and  we 
think  the  authorities,  both  in  that  country  and  in  this,  justify  us 
in  stating  that  the  proper  public  officer  may,  in  a  proper  case, 
by  a  suit  in  the  name  of  the  state,  enjoin  a  railroad  company 
from    maintaining   a   public   nuisance.^^      This    is   certainly    true 


State,  155  Ala.  491,  46  So.  468,  19  L. 
R.  A.  (N.  S.)  1173. 

60  Rio  Grande  R.  Co.  v.  Browns- 
ville, 45  Tex.  88;  Philadelphia  v. 
Friday,  6  Phila.  275;  Philadelphia 
V.  Railway  Co.,  8  Phila.  648;  Green- 
wich V.  Easton  &c.  R.  Co.,  24  N.  J. 
Eq.  217;  Springfield  v.  Connecticut 
River  R.  Co.,  4  Cush.  (Mass.)  63. 
See  also  note  in  44  L.  R.  A.  565. 
And  a  removal  of  tracks  already 
laid  may  be  compelled  by  a  com- 
pany which  afterward  obtains  au- 
thority -to  lay  its  tracks  in  the 
street,  although  the  first  company 
improved  and  reclaimed  the  street. 
Galveston  Wharf  Co.  v.  Gulf  &c.  R. 
Co.,  81  Tex.  494,  17  S.  W.  57.  Un- 
less expressly  authorized  a  railroad 
company  is  not  presumed  to  have 
the  right  to  condemn  and  appropri- 
ate to  its  use  land  already  dedi- 
cated to  the  pu])lic  for  streets ;  and 
either  the  municipal  corporation  or 
the    owner    of    the    fee    may    enjoin 


such     use.      Cornwall    v.     Louisville 
&c.  R.  Co.,  87  Ky.  72,  7  S.  W.  553. 

^1  Commisioners  v.  Long,  1  Pars. 
Eq.  Cas.  (Pa.)  143;  Township  of 
North  Manheim,  Appeal  of  (Pa.), 
14  Atl.  137,  36  Am.  &  Eng.  R.  Cas. 
194. 

62  Attorney-General  v.  Chicago 
&c.  R.  Co..  35  Wis.  425;  Stockton  v. 
Central  &c.  Co.,  50  N.  J.  Eq.  52,  24 
Atl.  964,  17  L.  R.  A.  97;  Ware  v. 
Regent's  Canal  Co.,  3  De  Gex  &  J. 
212;  Attornej'-General  v.  Great 
Northern  R.  Co.,  4  De  Gex  &  S.  75 ; 
Taylor  v.  Salmon,  4  Mylne  &  C.  134, 
141.  See  United  States  v  Union 
Pac.  R.  Co.,  98  U.  S.  569,  25  L.  ed. 
143. 

63  Georgetown  v.  Alexandria  Ca- 
nal Co.,  12  Pet.  (U.  S.)  91,  9  L.  ed. 
1012 ;  Mayor  v.  Jacques,  30  Ga.  505 ; 
People  v.  St.  Louis,  10  111.  351.  357, 
48  Am.  Dec.  339;  People's  Gas  Co. 
V.    Tyncr.    131    Ind.   277,   283,    31    N. 


§729 


RAILROADS 


46 


wlu-rc  the  relief  sought  is  not  merely  to  prevent  the  commission 
of  a  crime,  but  to  prevent  the  abuse  of  corporate  powers  and 
privileges  to  the  injury  of  the  public.  A  prosecution  for  the  crime 
or  a  suit  to  dissolve  the  corporation  or  forfeit  its  charter  will  not 
afford  adecjuate  relief  in  such  a  case,  because,  in  the  meantime, 
the  corporation,  unless  restrained  by  the  courts,  may  persist  in 
its  course  of  crime  and  its  abuse  of  corporate  j)rivileges.  An 
injunction  is  therefore,  necessary  to  accomplish  complete  justice 
and  prevent  continued  injury  to  the  public.  So,  of  course,  in- 
junction will  lie,  in  a  proper  case,  at  the  suit  of  an  individual  who 
is  speciallv  injured  by  a  pul)lic  nuisance.""'  lUu  where  no  nuisance 
yet  exists  and  it  is  merely  claimed  that  injury  w^ill  arise  from  the 
use  to  which  property  is  proposed  to  be  devoted,  and  not  from  the 
character  of  the  property  or  structure,  an  injunction  will  not  be 
awarded  if  the  structure  and  the  use  to  which  it  is  to  be  put  are 
authorized  and  lawful  in  themselves  and  the  apprehended  injury 
is  merely  contingent  or  uncertain.''"'  Indeed,  we  think  it  may  be 
E.  59,  16  L.  R.  A.  443,  31  Am.  St.      in   15  L.   R.  A.    (N.   S.)    747,  23   L. 


433;  Littleton  v.  Fritz,  65  Iowa  488, 
22  N.  W.  641,  54  Am.  Rep.  19;  State 
V.  Crawford,  28  Kans.  726,  42  Am. 
Rep.  182;  Carleton  v.  Rut,^g.  149 
Mass.  550,  22  N.  E.  55,  5  L.  R.  A. 
193,  14  Am.  St.  446;  District  At- 
torney V.  Lynn  &c.  R.  Co.,  16  Gray 
(Alass.)  242;  State  v.  Saline  Co., 
51  Mo.  350,  11  Am.  Rep.  454;  State 
V.  Saunders,  66  N.  H.  39.  25  Atl. 
588,  18  L.  R.  A.  646;  People  v. 
Sturtevant,  9  N.  Y.  263,  59  Am. 
Dec.  536;  Attorney-General  v.  Hun- 
ter, 1  Dev.  Eq.  (N.  Car.)  12;  At- 
torney-General V.  Chicago  &c.  R. 
Co.,  35  Wis.  425;  Columbian  Ath- 
letic Club  V.  State,  143  Ind.  98.  40 
N.  E.  914,  28  L.  R.  A.  727,  52  Am. 
St.  407.  In  the  last  case  just  cited 
it  was  held,  after  a  careful  review 
of  many  of  the  authorities,  that  in- 
junction would  lie  and  that  a  re- 
ceiver might  also  be  appointed  in  aid 
of    the    injunction.      See    also    notc^ 


R.  A.  (N.  S.)  691,  and  33  L.  R.  A. 
(N.  S.)  325;  State  v.  Marshall.  100 
Miss.  626,  56  So.  792,  Ann.  Cas. 
1914A,  434,  and  note. 

•i-iWylie  v.  Elwood,  134  111.  281, 
25  N.  E.  570,  9  L.  R.  A.  726.  23 
Am.  St.  673;  and  note  Field  v.  Bar- 
ling, 149  111.  556.  37  N.  E.  850,  24 
L.  R.  A.  406,  41  Am.  St.  311;  Innis 
V.  Cedar  Rapids  &c.  R.  Co..  76  Iowa 
165,  40  N.  W.  701,  2  L.  R.  A.  282; 
F'cniisylvania  R.  Co.  v.  Angel,  41  N. 
J.  Eq.  316,  7  At).  432,  56  Am.  Rep. 
1 ;  Cogswell  v.  New  York  &c.  R. 
Co..  103  N.  Y.  10,  8  N.  E.  537,  57 
Am.  Rep.  701  ;  Gold  v.  Philadelphia, 
115  Pa.  St.  184.  8  Atl.  386;  note 
to  South  Carolina  &c.  Co.  v.  South 
Carolina  R.  Co.,  4  L.  R.  A.  209; 
Elliott  Roads  &  Streets,  496  (3d 
ed.),   §  850. 

«•'>  Rouse  v.  Martin,  75  Ala.  510. 
51  .\in.  Rep.  463;  Powell  v.  Macon 
&c.  R.  Co.,  92  Ga.  209.  17  S.  E.  1027; 


47 


ACTIONS   BY  AND  AGAINST  CORI'ORATIONS 


§730 


safely  affirmed  that  where  a  structure-  such  as  a  coal  chute,  a 
water  tank,  or  the  like,  essential  to  the  operation  of  the  railroad, 
is  properly  constructed,  the  remedy  of  an  individual  inconveni- 
enced by  its  use,  if  any  he  has,  must,  ordinarily,  be  an  action  for 
damages. ^^  And  even  this  remedy  is  not,  ordinarily  open  to 
him  where  the  structure  is  properly  constructed  in  a  proper  place 
and  the  inconvenience  is  such  only  as  necessarily  results  from 
its  authorized  use.^'^ 

§  730  (632).  Injunction  at  suit  of  the  company. — A  railroad 
company  may  have  an  injunction,  in  a  proper  case,  to  protect  its 
rights  from  a  threatened  invasion.  It  may  enjoin  an  interference 
with  its  roadbed  by  piling  obstructions  thereon,*^^  or  by  tearing 


Keiser  v.  Lovett,  85  Ind.  240,  44  Am. 
Rep.  10;  Pfingst  v.  Senn,  94  Ky. 
556,  23  S.  W.  358,  21  L.  R.  A.  569; 
Dumesnil  v.  Dupont,  18  B.  I\Ion. 
(Ky.)  800,  68  Am.  Dec.  750;  Dun- 
can V.  Hayes,  22  N.  J.  Eq.  25; 
Rhodes  v.  Dunbar,  57  Pa.  St.  274, 
98  Am.  Dec.  221;  Earl  of  Ripon  v. 
Hobart,  1  Cooper  (Temp.  Broug- 
ham) 333.  See  also  Dalton  v.  Qeve- 
land  &c.  R.  Co..  144  Ind.  121,  43  N. 
E.  130. 

ceOwen  v.  Phillips,  73  Ind.  284; 
Barnard  v.  Sherley.  135  Ind.  547, 
558,  34  N.  E.  600,  35  N.  E.  117,  24 
L.  R.  A.  568,  41  Am.  St.  454,  and 
authorities  there  cited.  See  Gilbert 
V.  Showerman,  23  Mich.  448;  Good- 
all  V.  Crofton,  33  Ohio  St.  271,  31 
Am.  Rep.  535 ;  Huckenstine's  Ap- 
peal, 70  Pa.  St.  102.  10  Am.  Rep. 
669 ;  Robb  v.  Carnegie  Bros.  &  Co., 
145  Pa.  St.  324,  22  Atl.  649.  14  L. 
R.  A.  329.  27  Am.  St.  694.  Of 
course  we  do  not  mean  to  sa\^  that 
an  individual  who  is  specially  in- 
jured may  not  have  an  injunction, 
in  a  proper  case,  where  this  rem- 
edy  at   law    is   inadequate,   against   a 


nuisance  caused  by  the  use  of  a 
thing  as  well  as  against  the  thing 
itself. 

•5"  Barnard  v.  Sherley,  135  Ind. 
547,  553,  34  N.  E.  600,  24  L.  R.  A. 
568,  41  Am.  St.  454;  Dunsmore  v. 
Central  &c.  R.  Co.,  72  Iowa  182,  33 
N.  W.  456;  Cosby  v.  Owensboro  &c. 
R.  Co.,  10  Bush  (Ky.)  288;  Booth 
V.  Rome  &c.  R.  Co.,  140  N.  Y.  267, 
35  N.  E.  592,  24  L.  R.  A.  105,  37 
Am.  St.  552  (railroad  company  held 
not  liable  for  incidental  injury 
caused  by  blasting  on  its  own  land 
a  place  to  lay  its  tracks)  ;  Randle 
V.  Pacific  &c.  Co..  65  Mo.  325;  Par- 
rott  V.  Cincinnati  &c.  R.  Co.,  10 
Ohio  St.  624;  Pennsylvania  Co.  v. 
Lippincott.  116  Pa.  St.  472,  9  Atl. 
871,  2  Am.  St.  618;  Pennsylvania 
R.  Co.  V.  Marchant,  119  Pa.  St.  541, 
13   Atl.  690,   4   Am.    St.   659. 

"S  Henderson  v.  Ogden  City  R. 
Co.,  7  Utah  199,  26  Pac.  286.  But 
it  has  been  held  that  a  preliminary 
injunction  will  not  be  granted  to 
restrain  the  erection  of  buildings  on 
land  claimed  by  the  railroad  com- 
pany  as   its   right   of   way,   where    it 


§730 


KAILROADS 


48 


up  its  tracks  or  placing-  ol)stacles  in  the  way  of  constructing  its 
road  upon  a  proposed  route  which  it  has  located  according  to 
lavv.*^'*  So,  it  has  been  held  that  it  may  enjoin  a  constant  or  con- 
tinuous use  of  its  track  by  a  tresspasser.""  If  the  former  owner 
wrongfully  threatens  to  resist  the  occupancy  by  tlie  railroad  com- 
pany of  lands  which  it  has  acquired  by  regular  condemnation 
proceedings,  he  may  l)e  restrained  by  injunction.'^  So,  where  a 
riparian  proprietor  had  conveyed  to  a  railroad  company  a  right 
of  way,  with  ''such  exclusive  interest  and  estate  in  said  strip  of 
land"  as  the  company  could  have  acquired  by  condemnation 
under  the  statute,  it  was  held  that  a  subsequent  grantee  of  the 
fee  from  such  original  proprietor  had  no  right  to  construct  along 
the  river  bank,  and  upon  such  right  of  way,  a  levee  w^hich  would 
raise  the  water  flowing  in  the  stream  at  time  of  ordinary  tiood, 
although  in  some  places  beyond  the  low-water  banks,  so  as  to 
endanger  the  bridge,  trestlework  and  track  of  the  railroad,  and 
that  the  company  was  entitled  to  have  the  same  enjoined. "^^ 
\\'hile  there  is  conflict  among  the  decisions  upon  the  question  as 
to  what  constitutes  surface  water,  the  authorities  cited  by   the 


appears  that  the  defendant  also 
claims  title  to  the  land.  Delaware 
&c.  R.  Co.  V.  Newton  &c.  Co.,  137 
Pa.   St.   314,   21   Atl.   171. 

''S>  Rochester  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  110  N.  Y.  128.  17 
N.  E.  680;  Easton  &c.  R.  Co.  v.  Eas- 
ton,  133  Pa.  St.  505,  19  Atl.  486,  19 
Am.  St.  658  (city  enjoined)  ;  Ashe- 
ville  St.  R.  Co.  V.  Asheville,  109  N. 
Car.  688,  14  S.  E.  316  (chief  of 
police  enjoined  from  tearing  up 
track).  See  also  Millville  &c.  Co.  v. 
Goodwin  (N.  J.),  32  Atl.  263; 
Northern  Pac.  R.  Co.  v.  Wadekani- 
per,  70  Wash.  392,  126  Pac.  909; 
Bellington  &c.  R.  Co.  v.  Alston,  54 
W.  Va.  597,  46  S.  E.  612,  613.  cit- 
ing text ;  Seaboard  Air  Line  R.  Co. 
V.  Olive   (N.  Car.),  55  S.  E.  263. 

70  Atchison  &c.  R.  Co.  v.  Spauld- 
ing,  69  Kans.  431,  11  Pac.  106.  66  L. 


R.  A.  587.  105  Ani.  St.  175.  See 
generally  as  to  enjoining  tres- 
passes,   note   in  99   Am.    St.   731-753. 

71  Montgomery  R.  Co.  v.  Walton, 
14  Ala.  207.  Any  interference  with 
the  casement  of  the  company  by 
the  owner  of  the  fee  may  be  en- 
joined. Chance  v.  East  Texas  R. 
Co.,  63  Tex.   152. 

72  Cario  &c.  R.  Co.  v.  Brevort,  62 
Fed.  129.  The  river  referred  to  in 
this  case  is  a  navigable  river  form- 
ing tlie  boundary  between  two 
states,  and  the  court  also  held  that 
the  (luestion  involved  was  not. 
therefore,  a  local  cjucstion,  but  was 
one  depending  on  the  general  prin- 
ciples of  law,  so  that  the  decisions 
of  the  courts  of  one  of  the  states 
were  not  binding  on  the  federal 
court. 


49  ACTIONS   BY  AND  AGAINST  CORPORATIONS  §  730 

court  fully  sustain  the  ruling  upon  that  branch  of  the  case,  and, 
as  the  railroad  company  had  not  only  a  dominant  estate,  to  which 
that  of  the  defendant  was  servient,'^^  but  also  had  the  right,  at 
least  as  against  the  defendant,  to  the  exclusive  possession  ajid 
control  of  the  land  within  its  right  of  way  or  location,  for  rail- 
road purposes,''*  it  seems  clear  that  the  construction  of  the  levee, 
as  proposed  would  have  been  a  very  material  invasion  of  the 
plaintiff's  rights,  and  that  the  decision  of  the  court  was  un- 
doubtedly sound.  The  grantees  of  land  who  purchased  it  with 
knowledge  that  a  railroad  company  had  laid  pipes  across  it  from 
a  certain  spring  to  a  tank,  under  a  contract  with  a  former  owner 
of  the  land,  may  be  enjoined  from  interfering  with  such  pipes; 
and  the  fact  that  the  tank  is  not  located  in  the  exact  place 
specified  in  the  contract  is  immaterial  where  the  change  does  not 
affect  the  position  of  the  pipes,  which,  owing  to  the  topography 
of  the  country,  are  necessarily  laid  just  where  they  are/^  A 
railroad  company  may  enjoin  another  company  having  a  right  of 
way  across  its  land  from  interfering  with  its  use  of  its  own  prop- 
erty as  a  freight  yard  as  permitted  by  the  contract  granting  the 
easement,  even  though  some  uncertain  damages  would  result 
to  the  grantee  company  from  such  use  because  of  its  interference 
with  the  grantee's  use  of  its  tracks. '^^  So,  a  street  railway  com- 
pany which  has  laid  its  tracks  in  a  street  under  a  grant  from  a 
city  may  enjoin  another  company,  to  which  the  city  afterward 
grants  similar  rights,  from  tearing  up  the  plaintiff's  track  or 
placing  its  own  track  over  that  of  the  plaintiff  in  derogation  of 

73  Davidson  v.  Xicholson,  59  Ind.  Mass.  6,  57  Am.  Dec.  74;  Proprie- 
411;  Robinson  v.  Thrailkill,  110  Ind.  tors  &c.  v.  Nashua  &c.  R.  Co.,  104 
117,  10  N.  E.  647;  Herman  v.  Rob-  Mass.  1,  6  .\m.  Rep.  181;  Chicago 
erts.  119  N.  Y.  37,  23  N.  E.  442,  7  L.  &c.  R.  Co.  v.  McGrew,  104  Mo.  282, 
R.  A.  226,  16  Am.  St.  801 ;  Hayden  297,  15  S.  W.  931 ;  St.  Louis  &c.  R. 
V.  Skillings,  78  Maine  413,  6  Atl.  Co.  v.  Clark,  119  Mo.  357,  25  S.  W. 
830.  192;  Jackson  v. -Rutland  &c.  R.  Co., 

74  Atlantic  &c.  Tel  Co.  v.  Chicago  25  Vt.   150,  60  Am.   Dec.  246. 

&c.  R.  Co.,  6  Biss.   (U.  S. )    158,  Fed.  75  Diffendal    v.    Virginia    Midland 

Cas.  No.  632;  Shelby  v.  Chicago  &c.  R.  Co.,  86  Va.  459,  10  S.   E.  536. 

R.   Co.,    143   111.   385.   32   N.   E.  438;  7C  Chicago    &c.    R.    Co.    v.    Lake 

Hayden  v.  Skillings,  78  Maine  413,  Shore  &c.  R.  Co.,  30  111.  App.  129. 
6    Atl.    830;    Brainard    v.    Clapp,    64 


§730 


RAILROADS 


50 


the  latter's  rights. "^^  A  threatened  invasion  of  an  exclusive  right 
granted  to  a  street  railway  company  to  build  a  road  over  the 
lands  of  a  railroad  company  to  its  depot  may  also  be  enjoinedJ^ 
Where  a  shipper  threatened  to  bring  a  great  nuniber  of  separate 
actions  for  damages  against  a  railroad  company  for  the  separate 
cars  as  to  which  he  alleged  he  was  entitled  to  recover  under  the 
state  law  prohibiting  a  charge  for  carriage  above  a  certain  rate  it 
was  held  that  he  could  be  enjoined  from  suing  separately  for  the 
overcharge  on  each  car."^  An  injunction  may  also  be  granted  to 
prevent  a  railroad  company  from  violating  its  contract  by  which 
it  has  agreed  to  stoj)  trains  within  a  certain  distance  of  the  other 


■?"  See  Hamilton  St.  R.  &c.  Co.  v. 
Hamilton  &c.  Co.,  5  Ohio  Cir.  Ct. 
319;  Kansas  City  &c.  R.  Co.  v.  Kan- 
sas City  &c.  R.  Co.,  129  Mo.  62,  31 
S.  W.  451  ;  Indianapolis  Cable  St.  R. 
Co.  V.  Citizens'  St.  R.  Co.,  127  Ind. 
369,  24  N.  E.  1054.  and  26  N.  E.  893 ; 
Citizens'  Coach  Co.  v.  Camden  &c. 
R.  Co.,  33  N.  J.  Eq.  267,  36  Am.  Rep. 
542.  See  also  Donora  Southern  R. 
Co.  V.  Pennsylvania  R.  Co.,  213  Pa. 
St.  119,  62  Atl.  367.  See  generally 
as  to  joint  use  of  streets  and  tracks, 
Elliott  Roads  &  Streets,  (3d  ed.), 
§  965,  et  seq.  Where  the  grant  to 
use  a  street  is  not  exclusive — and 
the  rule  against  monopolies  will 
generally  prevent  an  exclusive  grant 
— the  company  can  not  enjoin  an- 
other company  from  using  another 
portion  of  the  street  luider  a  subse- 
quent grant.  Pennsylvania  &c.  R. 
Co.  V.  Philadelphia  &c.  R.  Co.,  157 
Pa.  St.  42,  27  Atl.  683,  56  Am.  & 
Eng.  R.  Cas.  610.  See  also  West 
Jersey  R.  Co.  v.  Camden  &c.  R.  Co.. 
52  N.  J.  Eq.  31,  29  Atl.  423.  2  Am. 
L.  Reg.  &  Rev.  (N.  S.)  38,  and 
note;  Chicago  &c.  R.  Co.  v.  Whit- 
ing &c.  R.  Co..  139  Ind.  297,  38  N. 
E.  604.  26  L.  R.  A.  337,  47  Am.  St. 


264  (holding  that  injunction  would 
not  lie  to  restrain  a  street  railway 
company  from  crossing  a  steam  rail- 
road  company's    tracks    in   a    street). 

78  Fort  Worth  St.  R.  Co.  v. 
Queen  City  R.  Co.,  71  Tex.  165,  9 
S.    W.    94. 

79  Texas  &c.  R.  Co.  v.  Kuteman, 
54  Fed.  547.  As  to  w^hen  an  injunc- 
tion may  be  granted  to  restrain  the 
bringing  of  a  multiplicity  of  suits, 
and  the  plaintiffs  compelled  to  sub- 
mit to  the  jurisdiction  of  a  court  of 
equity,  see  Tribette  v.  Illinois  Cen- 
tral R.  Co.,  70  Miss.  182,  12  So.  32, 
19  L.  R.  A.  660.  35  Am.  St.  642; 
Western  Union  Tel.  Co.  v.  Poe,  61 
l-"ed.  449;  Lake  Erie  &c.  R.  Co.  v. 
Young,  135  Ind.  426,  35  N.  E.  177, 
41  Am.  St.  430;  Carney  v.  Hadley, 
32  Fla.  344,  14  So.  4,  22  L.  R.  A. 
233,  37  Am.  St.  101.  But  compare 
Chicago  V.  Chicago  City  R.  Co.,  222 
111.  560,  78  N.  E.  890.  It  has  l)een 
held  that  the  federal  courts  have  no 
jurisdiction  to  restrain  by  injunc- 
tion a  criminal  prosecution  by  a 
state  under  an  unconstitutional  law 
of  such  state.  Minneapolis  &c.  R. 
Co.  V.  Milner,  57  Fed.  276. 


51 


ACTIONS   CY  AND  AGAINST  CORPORATIONS 


§730 


company's  road,  and  not  to  cross  until  signaled  to  do  so  by  the 
flagman.''**  Where  it  is  shown  that  the  extension  of  a  city  street 
so  as  to  cross  the  tracks  and  yards  or  depot  grounds  of  a  rail- 
road company  would  render  them  useless  to  the  railroad  com- 
pany, or,  in  other  words,  where  the  two  public  uses  cannot  co- 
exist, the  city  may  be  enjoined,  in  the  absence  of  an  express 
statute  conferring  the  right,  from  so  extending  the  street. ^^ 
Until  a  railroad  company  has  complied  with  the  requirements  of 
the  statute  giving  it  authority  to  cross  another  railroad,  it  has  no 
right  to  enter  upon  that  company's  premises  to  build  its  road,*^^ 
and  an  injunction  may  be  granted  to  restrain  it  from  so  doing.^;' 
An  injunction  will  not  lie,  however,  for  a  naked  trespass  without 
irreparable  injury,  and  upon  this  ground  it  has  been  held  that 
it  will  not  lie  where  one  railroad  company  enters  upon  the  road- 
bed  of  another  and   constructs   its   tracks   without  first   making 


80  Cornwall  &c.  R.  Co.'s  Appeal, 
125  Pa.  St.  232,  17  Atl.  427,  11  Am. 
St.  889.  As  to  when  a  private  in- 
dividual may  and  may  not  enjoin 
change  of  station  or  location  of 
road,  see  Horton  v.  Southern  R.  Co., 
173  Ala.  231,  55  So.  531,  Ann.  Cas. 
1914A.  685,  and  note;  Day  v.  Ta- 
cona,  80  Wash.  161,  141  Pac.  347,  L. 
R.  A.  1915B,  547. 

81  Baltimore  &c.  R.  Co.  v.  North. 
103  Ind.  486;  Fort  Wayne  v.  Lake 
Shore  &c.  R.  Co.,  132  Ind.  558,  72 
N.  E.  215,  18  L.  R.  A.  367,  32  Am. 
St.  277 ;  Cincinnati  &c.  R.  Co.  v. 
City  of  Anderson,  139  Ind.  490,  38 
N.  E.  167,  47  Am.  St.  285;  Housa- 
tonic  R.  Co.  V.  Lee  &c.  R.  Co.,  118 
Mass.  391  ;  Milwaukee  &c.  R.  Co. 
V.  Faribault,  23  Minn.  167 ;  New  Jer- 
sey &c.  R.  Co.  V.  Long  Branch,  39 
N.  J.  L.  28;  Prospect  Park  &c.  Co.  v. 
Williamson.  91  X.  Y.  552;  Winona 
&c.  R.  Co.  V.  Wntertown,  4  S.  Dak. 
^IZ  56  N.  W.  1077:  Elliott  Roads 
&   Streets    167,    168    (3d   ed.).    §   359, 


et  seq.  But  see  Illinois  Cent.  R. 
Co.  V.  Chicago,  141  111.  586.  30  N. 
E.  1044,  17  L.  R.  A.  530;  Little 
Miami  &c.  R.  Co.  v.  Dayton,  23  Ohio 
St.  510;  Detroit  &c.  R.  Co.  v.  'De- 
troit, 91   Mich.  444,  52   N.  W.   52. 

82  Lake  Shore  &c.  R.  Co.  v.  Cin- 
cinnati &c.  R.  Co.,  116  Ind.  578,  19 
N.   E.  440. 

83  Northern  Pac.  R.  Co.  v.  St. 
Paul  &c.  R.  Co.,  1  McCrary  (U.  S.) 
302,  3  Fed.  702;  Pennsylvania  R.  Co. 
v.  Consolidation  Coal  Co.,  55  Md. 
158.  In  Pennsylvania  Co.  v.  Lake 
Erie  &c.  R.  Co..  146  Fed.  446,  it  is 
held  that  a  lessee  of  a  railroad  has 
such  an  interest  as  will  entitle  it 
to  maintain  an  injunction  against 
another  company  illegally  interfer- 
ing with  the  enjoyment  of  the 
leased  property  by  an  unauthorized 
crossing.  But  in  cases  where  the 
interests  of  the  public  demand  it 
the  injunction  may  lie  dissolved 
upon  the  filing  of  a  bond  to  pay 
damages  and  costs  adjudged  against 


§731 


RAILROADS 


52 


compensation  as  required  by  law,*''*  and  the  same  court  has  held 
that  where  two  street  railway  companies  are  operating  their 
respective  roads  under  legal  authority,  their  roads  crossing  each 
other  at  the  intersection  of  two  streets,  the  mere  fact  that  one 
of  them  is  proceeding  to  lay  a  double  track  at  the  crossing  will 
not  entitle  the  other  to  an  injunction,  where  no  irreparable  in- 
jury is  shown  and  the  company  is  solvent  and  able  to  respond  in 
damages. ^^  But  the  general  rule  is  that  injunction  will  lie  where 
compensation  is  not  paid  or  tendercd,^^  and  it  seems  to  us  that 
an  entrv  under  claim  and  color  of  right,  which  may  ripen  into  a 
title,  is  not  a  mere  fugitive  trespass  that  can  cause  no  irreparable 
injury. ^^ 

§731  (633).  Enjoining  "strikers." — The  great  strike  of  the 
members  of  the  American  Railway  Union  in  1894,  and  other 
strikes  about  the  same  time,  gave  rise  to  a  number  of  decisions 
in  which  old  principles  were  applied  to  a  comparatively  new  state 
of  facts  by  the  courts  of  equity,  thus  illustrating  the  rule  that 
equity  will  keep  pace  with  the  needs  of  society  and  accommo- 
date its  methods  of  procedure  to  the  development  of  the  public 
interests  by  applying  its  remedies  to  the  varying  demands  for 
equitable  relief.^^'*    It  has  been  said  that  there  is  no  such  thing  as 


it  in  the  condemnation  proceedings 
by  which  it  is  autliorized  to  acquire 
title.  Northern  Pac.  R.  Co.  v.  St. 
Paul  &c.  R.  Co.,  2  McCrary  (U.  S.) 
260,  4  Fed.   688. 

84  Mobile  &c.  R.  Co.  v.  Alabama 
&c.  R.  Co.,  87  Ala.  520,  6  So.  407, 
and  cases  cited. 

S-''>  Highland  Ave.  &c.  R.  Co.  v. 
Birmingham  Union  R.  Co.,  93  Ala. 
505,  9  So.  568.  See  also  Chicago  &c. 
R.  Co.  V.  Illinois  &c.  R.  Co..  113 
111.  156;  Pennsylvania  R.  Co.  v.  Na- 
tional Docks  &c.  R.  Co.,  56  Fed. 
697. 

86  Evans  v.  Missouri  &c.  R.  Co.. 
64  Mo.  453;  Gardner  v.  Newburgh. 
2  Johns  Ch.  (N.  Y.)  162;  Georgia 
Midland  &c.  R.  Co.  v.  Columbus  &c. 


R.  Co.,  89  Ga.  205,  15  S.  E.  305.  51 
Am.  &  Eng.  R.  Cas.  538;  Elliott 
Roads  &  Streets,  (3d  ed.),  §  272; 
ante,  §  727. 

8"  See  Webb  v.  Portland  &c.  Co.. 
3  Sumner  (U.  S.)  189,  Fed.  Cas. 
No.  17322. 

88  See  Toledo  &c.  R.  Co.  v.  Penn- 
sylvania Co.,  54  Fed.  746 ;  Southern 
Cal.  R.  Co.  V.  Rutherford,  62  Fed. 
796;  Toy  v.  St.  Louis.  138  U.  S.  1, 
50,  11  Sup.  Ct.  243.  34  L.  ed.  843. 
See  also  O'Ncil  v.  Behanna,  182  Pa. 
St.  236,  2>7  Atl.  843.  38  L.  R.  A.  382, 
61  Am.  St.  702,  and  note ;  Gray  v. 
Building  Trades  Council.  91  Minn. 
171.  97  N.  W.  663.  63  L.  R.  A.  753. 
103  .\m.  St.  477.  and  note. 


S3  ACTIONS   BY   AND  AGAINST  CORPORATIONS  §731 

a  peaceable  and  lawful  strike,^^  but  this  seems  to  be  an  extreme 
statement,  and  a  United  States  court  of  appeals  has  taken  a  dif- 
ferent view,  holding  that  a  strike  is  not  unlawful  if  it  is  merely 
a  combination  of  employes  to  withdraw  from  the  service  of  their 
employer  for  the  purpose  of  accomplishing  some  lawful  pur- 
pose.^o  Combinations  of  workmen  for  their  common  benefit,  to 
develop  skill  in  their  trade,  to  prevent  the  overcrowding  thereof, 
to  obtain  better  wages  than  they  might  be  able  to  obtain  individ- 
ually, and  to  accumulate  a  fund  for  these  purposes,  are  not 
necessarily  unlawful.  Nor,  as  a  general  rule,  is  it  unlawful— 
except  in  so  far  as  it  involves  a  breach  of  contract  for  which 
an  injunction  will  seldom,  if  ever,  be  granted — for  a  man  to  quit 
the  service  of  his  employer  and  bestow  his  labor  where  he  will.^^ 
But  where  employes  endeavor  to  enforce  their  demands  by 
forcibly  preventing  others  from  working  in  their  places,  or  by 
destroying  property  or  preventing  its  use,  a  court  of  equity  has 
power  to  enjoin  them  and  may  enforce  its  order  by  punishing  the 
violators  for  contempt.  Conspiracies  to  obstruct  or  interfere  with 
the  business  and  management  of  railroad  companies,  especially 
when  the  carriage  of  mail  is  obstructed,  by  threats,  intimidation 
and  violence,  have  often  been  enjoined  as  a  violation  of  the  mter- 
state  commerce  law,^^  ^nd  also  as  constituting  an  obstruction  of 

89  See  Farmers'  &c.  Co.  v.  Nortl.^  1119,  21  L.  R.  A.  337,  40  Am.  St. 
ern  Pac.  R.  Co.,  60  Fed.  803.  The  319;  Reynolds  v.  Everett,  144  N.  Y. 
Legal  Side  of  the  Strike  Question.  189,  39  N.  E.  72  (not  unlawful  to 
33  Am.  L.  Reg.  (N.  S.  1894)  609,  use  persuasion  to  induce  others  to 
514  leave)  ;  Longshore  &c.  Co.  v.   Hovv- 

90  Arthur  v.  Oakes,  63  Fed.  310,  ell,  26  Ore.  527,  38  Pac.  547,  28  L. 
25  L.  R.  A.  414.  See  also  Long-  R.  A.  464,  46  Am.  St.  640,  8  Thomp. 
shore    &c.    Co.    v.    Howell,    26    Ore.  Corp.,  §  5689. 

527,    38    Pac.    547,   28   L.    R.    A.   464,  92  United   States   v.   Debs,   64   Fed. 

and  note,  46  Am.  St.  640;  Pickett  v.  724;  Toledo  &c.   R.   Co.  v.   Pennsyl- 

Walsh,  192  Mass.  572,  78  N.  E.  753,  vania  Co.,  54  Fed.  746,   19  L.   R.  A. 

6  L.   R.   A.    (N.    S.)    1067,   and   note  395;   Southern   Cal.   R.   Co.  v.  Ruth- 

116    Am.    St.    272,    3    Elliott    Cont.,  erford,    62    Fed.   796;    United    States 

§2700.  V.  Agler,  62  Fed.  824;  United  States 

91  See  .Arthur  v.  Oakes,  63  Fed.  v.  Elliott,  62  Fed.  801;  United  States 
310;  Carew  v.  Rutherford,  106  Mass.  v.  Workingmen's  Amalgamated 
1.  8  Am.  Rep.  287;  Bohn  Mfg.  Co.  Council,  54  Fed.  994.  affirmed  in 
V.    Hollis,    54   Minn.    223,    55    N.    W.  Workingmen's        &c.        Council       v.. 


§731 


RAILROADS 


54 


the  highways  of  interstate  commerce."^^  lUit  these  are  not  the 
only  grounds  upon  which  strikers  may  be  enjoined.  An  injunc- 
tion may  be  granted  at  the  suit  of  a  railroad  company  in  a  proper 
case,  upon  the  ground  of  irreparable  injury  and  in  order  to  pre- 
vent a  multiplicity  of  actions.'^-*  So.  in  a  ])roper  case,  the  court 
may  even  grant  a  mandatory  injunction.  Thus,  where  the  chief 
oflFicer  of  the  Brotherhood  of  Locomotive  Engineers  had  issued 
an  order  requiring  the  members  thereof  who  were  in  the  employ 
of  certain  railroad  companies  to  refuse  to  handle  and  deliver  cars 
or  freight  in  course  of  transportation  from  one  state  to  another, 
the  court  granted  a  mandatory  injunction  compelling  him  to  re- 
scind it.^^  As  we  have  already  stated,  and  as  most  of  the  au- 
thorities we  have  cited  hold,  the  violation  of  an  injunction  against 
strikers  may  be  punished  as  a  contempt.  It  has  been  held  that  an 
injunction  against  strikers  who  are  named  as  defendants  and  all 
others  who  aid  and  abet  them  is  binding  not  only  upon  all  who 
are  served  although  they  are  not  made  parties  to  the  suit,^^  but 
also  upon  others  of  the  class  designated  who  have  notice  of  the 
injunction,  although  they  are  not  served  with  a  copy  of  the 
order.»^     It  is  also  well  settled   that  any  unlawful   interference 


United  States,  57  Fed.  85;  Water- 
house  V.  Comer,  55  Fed.  149,  19  L. 
R.  A.  403.  See  also  Southern  R. 
Co.  V.  Machinsts  &c.  Union,  111 
Fed.  49;  Illinois  Cent.  R.  Co.  v.  In- 
ternational Assn.,  190  Fed.  910; 
Barnes  &c.  Co.  v.  Typographical 
Union,  232  111.  424,  83  N.  E.  940,  14 
L.    R.    A.    (N.    S.)    1018. 

03  Debs,  In  re,  158  U.  S.  564,  15 
Sup.   Ct.  900,   39  L.  ed.   1092. 

9-t  "The  Legal  Side  of  the  Strike 
Question,"  33  Am.  L.  Reg.  (N.  S. 
1894)  609;  Blindell  v.  Hagan,  54 
Fed.  40,  affirmed  in  Hagan  v.  Blin- 
dell, 56  Fed.  696;  Coeur  D'Alene  &c. 
Co.  V.  Miners'  Union,  51  Fed.  260; 
Lake  Erie  &c.  R.  Co.  v.  Bailey,  61 
Fed.  494;  Sherry  v.  Perkins,  147 
Mass.  212.  17  N.  E.  307,  9  Am.  St. 
689;  Murdock  v.  Walker,  152  Pa.  St. 


595,  25  Atl.  492,  34  Am.  St.  678; 
Wick  China  Co.  v.  Brown,  164  Pa. 
St.  449,  30  Atl.  261. 

93  Toledo  &c.  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  730,  19  L.  R.  A. 
387.  See  also  Chicago  &c.  R.  Co. 
V.  Burlington  &c.  R.  Co.,  34  Fed. 
481 ;  Coe  v.  Louisville  &c.  R.  Co.,  3 
Fed.  775;  Toledo  &c.  R.  Co.  v. 
Pennsylvania  Co.,  54  Fed.  746,  19  L. 
R.  A.  395 ;  Broome  v.  New  York  &c. 
Co.,  42  N.  J.  Eq.  141,  7  Atl.  851; 
Beadel  v.   Perry,   L.  R.  3  Eq.  465. 

90  Toledo  &c.  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  746;  United 
States  v.  Agler.  62  Fed.  824.  See 
also  United  States  v.  Elliott,  64  Fed. 
27. 

'•'"  Lennon,  Ex  parte,  64  Fed.  320, 
affirmed  in  Lennon,  In  re,  150  U.  S. 
393,  14  Sup.  Ct.  123,  37  L.  ed.  1120; 


55 


ACTIONS   BY   AND  AGAINST   CORTORATIONS 


§732 


with  a  railroad  in  the  hands  of  a  receiver  is  punishable  as  a  con- 
tempt,^® and  "picketing"  has  been  held  to  constitute  a  violation  of 
an  injunction.*-^^ 

§732  (634).  Injunction  at  suit  of  stockholder. — A  stock- 
holder, in  a  proper  case,  may  enjoin  the  corporation  and  those 
in  control  of  it  from  acts  by  which  a  forfeiture  of  the  charter 
will  be  incurred,  or  from  other  acts  amounting  to  a  breach  of  the 
trust  reposed  in  them  by  the  stockholders.^  He  may  enjoin  the 
making  of  material  and  fundamental  changes  in  the  original  con- 
tract of  association,-  the  diversion  of  corporate  funds  to  purposes 
not  authorized  by  the  charter  and  outside  of  the  objects  for 
wdiich  the  corporation  was  organized,^  and  ultra  vires  acts  gen- 


Rapalje  Contempt,  46;  Ewing  v. 
Johnson,  34  How.  Prac.  (N.  Y.)  202; 
Waffle  V.  Vanderheyden,  8  Paige 
(N.  Y.)  45.  See  also  United 
States  V.  Debs,  64  Fed.  724. 

98  Thomas  v.  Cincinnati  &c.  R. 
Co.,  62  Fed.  803;  United  States  v. 
Debs,  64  Fed.  724 ;  Secor  v.  Toledo 
&c.  R.  Co.,  7  Biss.  (U.  S.)  513,  Fed. 
Cas.  No.  12605 ;  Higgins,  In  re,  27 
Fed.  443;  United  States  v.  Kane,  23 
Fed.  748 ;  Frank  v.  Denver  &c.  R. 
Co.,  23  Fed.  757.  See  also  Arthur 
V.  Oakes,  63  Fed.  310;  Acker,  In  re, 
66  Fed.  290. 

99  Atchison  &c.  R.  Co.  v.  Gee,  139 
Fed.  582;  Allis-Chalmers  Co.  v. 
Iron  Holders'  Union,  150  Fed.  155. 
In  some  jurisdictions  peaceful 
picketing  will  not  be  enjoined,  but  in 
others  all  picketing,  especially  if  ac- 
companied with  violence  or  even 
threats  and  a  display  of  force,  is 
considered  as  unlawful  intimidation. 
See  3  Elliott  Cont.,  §2700,  citing 
cases  on  both  sides.  See  also 
Whites'  Supp.  Thomp.  Corp., 
§§  5695-5697. 


1  Pond  V.  Vermont  Valley  R.  Co., 
12  Blatchf.  (U.  S.)  280,  Fed.  Cas. 
No.  11265;  Wilcox  v.  Bickel,  11 
Nebr.  154,  8  N.  W.  436;  March  v. 
Eastern  R.  Co.,  40  N.  H.  548,  11 
Am.  Dec.  1Z2 ;  Gamble  v.  Queens 
County  &c.  Co.,  123  N.  Y.  91,  25 
N.  E.  201,  9  L.  R.  A.  527;  Bag- 
shaw  V.  Eastern  &c.  R.  Co.,  7  Hare 
114.  But;  in  order  to  warrant  such 
interference  there  must  be  a  gross 
abuse  of  its  powers,  which  will  re- 
sult in  injury  to  the  complainant, 
or  the  acts  complained  of  must  be 
clearly  in  excess  .thereof.  Union 
Pac.  &c.  R.  Co.  V.  Lincoln  County.  2i 
Dill.  (U.  S.)  300,  Fed.  Cas.  No. 
14380;  Jones  v.  Little  Rock,  25  Ark. 
301.  See  also  Forrest  v.  Nebraska  &c. 
Co.,   91    Nebr.   735,    137   N.   W.   839. 

-  Zabriskie  v.  Hackensack  &c.  K".. 
Co.,  18  N.  J.  Eq.  178,  90  Am.  Dec. 
617;  Stevens  v.  Rutland  &c.  R.  Co.,. 
29  Va.  545,  4  Thomp.   Corp.,    §4517. 

■'•  Marseilles  Land  Co.  v.  Aldrich,. 
86  111.  504;  Dodge  v.  Woolsey..  18; 
How.  (U.  S.)  331,  15  L.  ed.  Am- 
Central    R.    Co.    v.    Collins,    40    Ga. 


^732 


RAILROADS 


56 


erally.  such  as  unauthorized  consolidations,  leases,  or  the  like.' 
He  may  prevent  the  payment  of  dividends  where  no  money  has 
in  fact  been  earned  from  which  to  pay  them,^  and  so,  it  has  been 
held,  wlicrc  losses  have  consumed  the  surplus  earnings  set  apart 
to  pay  them,*'  or  where  the  stock  upon  which  dividends  are 
claimed  is  spurious.''  He  may  also  restrain  the  holding-  of  a 
corporate  election,  in  a  proper  case,  if  great  and  irreparable  in- 
jury to  him  would  result  therefrom,^  and  the  illegal  voting  of 
shares  in  furtherance  of  a  conspiracy  to  get  control  of  the  cor- 
poration,^ or  the  illegal  forfeiture  of  his  own  shares. ^'^  So,  a 
stockholder  of  a  railroad  company  which  has  located  and  par- 
tially constructed  its  lines  may  maintain  a  bill  to  enjoin  a  rival 
company  from  appropriating  the  partially  completed  work  to  its 
own  use,  through  the  collusion  of  the  directors  of  his  own  com- 
pany.^ ^  But  a  court  of  equity  will  not  interfere  by  injunction 
to  control  the  discretion  of  the  officers  in  matters  which  come 
fairly  within  their  powers,  where  the  contemplated  acts  do  not 
amount  to  a  breach  of  trust,  but  it  appears  that  the  real  ground 


582 ;  Cherokee  &c.  Co.  v.  Jones,  52 
Ga.  276;  Kean  v.  Johnson,  9  N.  J. 
Eq.  401;  Baltimore  &c.  R.  Co.  v. 
Wheeling.  13  Grat.    (Va.)    40; 

•*Young  V.  Rountout  &c.  Co.,  61 
Hun  619,  15  N.  Y.  S.  443;  Byrne 
V.  Schuyler  &c.  Co.,  65  Conn.  336, 
31  Atl.  833,  28  L.  R.  A.  304 ;  Botts 
V.  Simpsonville  &c.  Co.,  88  Ky.  54, 
10  S.  W.  134,  2  L.  R.  A.  594;  Small 
V.  Minneapolis  &c.  Co.,  45  Minn.  264, 
47  X.  W.  797.  See  ante,  §  431,  437, 
467,  479,  558,  also  Union  Sav.  &c.  Co. 
V.  District  Court,  44  Utah  397,  140 
Pac.  221. 

•'  Painesville  &c.  R.  Co.  v.  King, 
17  Ohio  St.  534;  Carpenter  v.  New 
York  &c.  R.  Co.,  5  Abb.  Prac.  (K. 
Y.)  277;  Burnes  v.  Pennell,  2  H.  L. 
Cas.   497;   ante,   §   363. 

6  Fawcett  v.  Laurie.  1  Dr.  &  Sm. 
192.  Where  a  specific  fund  has  been 
set     apart     to     pay     dividends,     and 


money  belonging  to  other  funds  is 
lost,  the  dividends  must  be  paid. 
LeRoy  v.  Globe  Ins.  Co.,  2  Edw.  Ch. 
(X.  Y.)   657. 

"  Underwood  v.  New  York  &c.  R. 
Co..  17  How.  Prac.   (N.  Y.)   537. 

■'»  Walker  v.  Devereaux,  4  Paige 
(X.  Y.)  229;  Wright  v.  Bundy,  11 
Ind.  404;  Webb  v.  Ridgely,  38  Md. 
364;  Hilles  v.  Parish,  14  N.  J.  Eq. 
380.     See  also  ante,  §   199. 

"  Moses  V.  Tompkins,  84  Ala.  613. 
4  So.  763 ;  Memphis  &c.  R.  Co.  v. 
Woods,  88  Ala.  630,  7  So.  108.  7  L. 
R.  A.  605,  16  Am.  St.  81. 

1**  Moore  v.  New  Jersey  &c.  Co., 
23  N.  Y.  St.  213,  5  N.  Y.  S.  192; 
Moses  V.  Tompkins.  84  Ala.  613,  4 
So.  763. 

iiWeidenfeld  v.  Sugar  Run  R. 
Co.,  48  Fed.  615,  51  Am.  &  Eng.  R. 
Cas.   505. 


57  ACTIONS   BY  AND  AGAINST   CORPORATIONS  §  733 

of  complaint  is  a  difference  of  opinion  as  to  what  the  interests 
of  the  corporation  require. ^^  And  the  alleged  invalidity  of  their 
title  has  been  held  not  to  be  sufificient  ground  for  restraining  de 
facto  directors  from  acting  as  such.^-''  The  interest  of  the  stock- 
holder does  not,  ordinarily,  extend  to  the  acts  of  third  persons 
with  reference  to  corporate  property,  and  a  stockholder  is  not 
entitled  to  an  injunction  to  restrain  slander  of  the  title  of  i)rop- 
erty  belonging  to  the  corporation. i"*  And  even  where  a  stock- 
holder might  have  been  entitled  to  an  injunction  if  he  had  acted 
in  time  or  if  he  had  not  taken  part  or  acquiesced  in  the  act  of 
which  he  complains,  his  acquiescence  or  laches  may  estop  him 
from  afterwards  maintaining  the  suit.^^ 

§  733  (635).  Mandatory  injunctions — English  cases. — Where 
the  prevention  of  threatened  acts  by  injunction  is  sought,  to- 
gether with  the  continuance  of  certain  other  acts,  a  court  of 
equity,  having  acquired  jurisdiction  for  one  purpose,  will  retain 
the  suit  for  all  purposes  of  relief,  and,  in  a  proper  case,  may  com- 
pel by  mandatory  injunction  the  permanent  or  continuous  per- 
formance of  affirmative  acts,  notwithstanding  there  might  be 
no  right  to  a  mandamus.^*'  In  suits  against  railroad  companies 
the  English  courts  of  equity  have  not  only  enjoined  the  further 
commission  of  acts  complained  of  in  the  several  cases,  but  have 
also  required  the  company  to  do  many  affirmative  acts,  such  as 
to  construct  and  maintain  at  a  specific  point  a  first-class  depot 


12  Ellerman    v.    Chicago    Junction  i^  Langdon  v.  Hillside  &c.  Co..  41 
R.  &c.  Co.,  49  N.  J.  Eq.  217,  23  Atl.  Fed.  609. 

287;   Hunter  v.  Roberts   &c.   Co.,  83  15  See  note  in  97   Am.   St.  49,   50. 

Mich.   63,  47  N.  W.   131;   McWhor-  And  see  generally  ante,   §§   192,  378. 

ter  V.    Pensacola.  24  Fla.  417,   5   So.  i<5  Wheeling   v.    Mayor,    1    Hughes 

129,  2  L.  R.  A.  504,  12  Am.  St.  220.  (U.  S.)   90.     See  also  Central  Trust 

See    also     Converse    v.     Hood,     149  Co.  v.   Moran,   56  Minn.  .188,   57   N. 

Alass.  471,  21  N.  E.  878,  4  L.  R.  A.  W.   471.  29  L.   R.  A.  2-12;   Pennsyl- 

521;    Woodruff    v.    Dubuque    &c.    R.  vania  R.  Co.  v.  Kelley,  11  N.  J.  Eq. 

Co.,  30  Fed.  91 ;  note  in  97  Am.  St.  129.   75   Atl.   758.    140   Am.    St.   541  ; 

43,     Whites'     Supp.     Thomp.     Corp.  Moundsville    v.    Ohio    River    R.    Co., 

§§  5666,  5667.  7>1  W.  Va.  92,  16  S.  E.  514,  20  L.  R. 

13  Mozley  v.   Alston,    1    Phill.   790.  A.  161,  and  note. 


§734 


KAIl, ROADS 


58 


building,^"^  to  stop  all  trains  at  a  certain  station,'"'  to  hnild  a  side- 
track,^^ and  to  so  run  its  trains  as  to  furnish  convenient  facilities 
for  passengers  and  shippers  of  goods,-"  all  this  upon  the  ground 
that  these  were  common-law  duties  of  the  raih\)ad  company  as 
a  common  carrier.  It  is  doubtful  if  the  courts  of  this  country 
would  go  so  far  in  this  direction  as  some  of  the  English  courts,^! 
but  manflatory  injunctions  have  been  awarded  in  ])roper  cases.-^ 

§  734  (636).     Rule  in  the  United  States — Illustrative  cases. — 

All  the  authorities  agree,  that  where  a  specific  duty  is  prescribed 
by  statute  and  the  railroad  company  not  only  threatens  to  perpe- 
trate wrongs  for  which  it  may  be  enjoined,  but  also  at  the  same 
time  neglects  such  duty,  it  may  be  compelled  to  perform  its  duty 
by  mandatory  injunction.  Acting  under  the  authority  of  par- 
ticular statutes,  courts  of  equity  have  by  injunction  compelled 
the  defendant  railroad  company  to  deliver  cattle  at  the  planitiff's 
stock-yards,-''  to  deliver  carloads  of  grain  consigned  to  him  upon 
his  ])rivate  side  track  without  extra  charge,--*  to  carry  for  plaintiff 
on  equal  terms  with  others,--"^  to  restore  a  stream  of  water  to  its 
natural  channel, -''  and  to  remove  a  wall  which  it  had  unlawfully 


17  Hood  V.  Northeastoni  Co.,  L. 
R.  8  Eq.  666.  See  also  Railroad 
Comrs.  V.  Portland  &c.  R.  Co.,  63 
Maine  269,  18  Am.  Rep.  208. 

18  Earl  of  Lindsey  v.  Great  Nortli- 
ern  R.  Co.,  10  Hare  664. 

19  Greene  v.  West  C.  Co.,  L.  R.  13 
Eq.  44. 

20  Great  Northern  R.  Co.  v.  Man- 
chester R.  Co.,  5  DeG.  &  S.  138. 
But  a  mandatory  injunction  to  com- 
pel operation  of  an  unprofital)lc 
branch  was  refused  in  \'ickslnirj2j 
Trac.  Co.  v.  Warren  County,  100 
Miss.  442,  56  So.  607. 

21  The  weight  of  authority  in 
America  is  against  extending  the 
powers  of  a  court  of  equity  to  en- 
force many  duties  which  are  not  im- 
posed by  the  charter  or  by  statute 
or    by    necessary    implication    there- 


from upon  a  railroad  company. 
Northern  Pac.  R.  Co.  v.  Washing- 
ton, 142  U.  S.  492,  12  Sup.  Ct.  283, 
35  L.  ed.  1092.  But  see  as  to  en- 
forcement of  public  duties,  Rogers 
&c.  Co.  V.  Erie  &c.  Co.,  20  N.  J.  Eci. 
379;  American  &c.  Co.  v.  Consoli- 
dation Co.,  46  Md.  15. 

-2  See  authorities  last  cited  in  last 
preceding  note;  also  post,  §§  734, 
1574.  and  see  §§  1442,  2366. 

'-■'<  McCoy  V.  Cincinnati  &c.  Rail- 
road, 22  Am.  Law  Reg.   (N.  S.)  725. 

-^  Vincent  v.  Chicago  &c.  R.  Co., 
49   111.   ZZ. 

25  Harris  &c.  R.  Co.,  In  re,  3  C.  B. 
N.  S.  693.  But  see  Express  Cases, 
117  U.  S.  1,  6  Sup.  Ct.  542,  628,  29 
L.  ed.  791. 

2<''  Corning  v.  Troy  &c.  Eartory. 
40  N.  Y.  191. 


59 


ACTIONS   BV    AND   AGAINST  CORPORATIONS 


§734 


erected.-^  A  railroad  company  may  also  be  compelled  to  re- 
ceive and  handle  freight  delivered  to  it  by  a  connecting  carrier 
as  required  by  the  interstate  commerce  act,^^  and  such  an  injunc- 
tion will  bind  the  agents  and  employes  of  the  company,  and  takes 
effect  as  to  them  as  soon  as  they  are  notified  thereof  without  the 
necessity  of  making  them  parties.^^  A  railroad  company  may 
also  seek  relief  by  a  mandatory  injunction,  and  where  persons 
were  engaged  in  laying  a  railroad  track  upon  the  line  of  plaintiff's 
road  so  as  to  obstruct  and  prevent  the  operation  thereof,  an  in- 
junction was  awarded  not  only  forbidding  the  further  obstruc- 
tion of  plaintiff's  track,  but  also  commanding  the  removal  of  the 
track,  already  laid.^*^  So,  in  many  other  cases  parties  have  been 
compelled  not  only  to  cease  unlawful  acts,  but  also  to  undo  what 
they  had  already  wrongfully  done,  or  to  restore  the  plaintiff'  to 
his  original  situation  or  condition.^!  ]\Iandatory  injunctions'  as 
we  have  already  seen,^^  have  likewise  been  issue  against 
"strikers."  An  injunction  which  is  preventive  in  form  is  fre- 
quently mandatory  in  effect  and  it  is  common  practice  to  so  draw 


27  Great  North  &c.  R.  Co.  v.  Clar- 
ence R.  Co.,  1  Collyer  507.  See  also 
Pennsylvania  R.  Co.  v.  Kelley,  11 
N.  J.  Eq.  129,  75  Atl.  758,  140  Am. 
St.  541. 

28  Toledo  &c.  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  730,  746,  53  Am. 
&  Eng.  R.  Cas.  293.  See  also  Inter- 
state &c.  Com.  V.  Lehigh  Valley  R. 
Co.,  49  Fed.  177;  Chicago  &c.  Co.  v. 
Burlington  &c.  Co.,  34  Fed.  481; 
Chicago  &c.  R.  Co.  v.  New  York  &c. 
Co.,  24  Fed.  516.  But  see  Atchison 
&c.  R.  Co.  V.  Denver  &c.  R.  Co.,  110 
U.  S.  667,  4  Sup.  Ct.  185,  28  L.  ed. 
291. 

29  Toledo  &c.  R.  Co.  v.  Pennsyl- 
vania Co.,  53  Am.  &  Eng.  R.  Cas. 
293. 

30  Henderson  v.  Ogden  City  R. 
Co.,    7    Utah    199,    26    Pac.    2S6,    46 


Am.  &  Eng.  R.  Cas.  95.  See  also 
Ocala  v.  Anderson,  58  Fla.  415,  50 
So.  572 ;  Pennsylvania  R.  Co.  v. 
Kelley,  11  N.  J.  Eq.  129,  75  Atl. 
758,  140  Am.  St.  541. 

31  Chamberlain,  Ex  parte,  55  Fed. 
704;  Toledo  &c.  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  730;  Chattanooga 
&c.  R.  Co.  V.  Felton,  69  Fed.  273; 
Atchison  &c.  R.  Co.  v.  Long,  46 
Kans.  701,  27  Pac.  182,  26  Am.  St. 
167;  Tucker  v.  Howard,  128  Mass. 
361 ;  White  v.  Tidewater  &c.  Co.,  50 
N.  J.  Eq.  1,  25  Atl.  199;  Jamestown  v. 
Chicago  &c.  R.  Co.,  69  Wis.  648,  34  N. 
W.  728.  See  also  notes  in  7  L.  R. 
A.  (N.  S.)  49,  and  36  L.  R.  A.  (N. 
S.)  402;  Love  v.  Atchison  &c.  R. 
Co..  185  Fed.  321. 

3  2 Ante,  §  731.  So,  in  California 
R.  Co.  V.  Rutherford,  62  Fed.  796. 


§735 


RAILROADS 


60 


the  order  and  thus  to  compel  an  act  to  be  done  by  enjoining  the 
defendant  from  refusing  to  do  it.^-^ 

§  735  (637).  Mandamus — Generally. — A  writ  of  mandamus  to 
compel  a  railroad  corporation  to  do  a  particular  act  in  construct- 
ing its  road  or  buildings  or  in  running  its  trains  can  be  issued 
when  there  is  a  specific  legal  dut}'  on  its  part  to  do  that  act,  and 
clear  proof  of  a  failure  to  perform  that  duty  by  the  corporation,^'* 
but  not  otherwise. ^•'''    Mandamus  is  an  extraordinary  rcmcdv  and 


33  See  Delaware  &c.  R.  Co.  v. 
Central  &c.  Co.,  43  X.  J.  Eq.  71; 
Lane  v.  Newdigate,  10  \'es.  192  (in 
which  the  practice  is  said  to  have 
originated)  ;  Rogers  Locomotive  &-c. 
Works  V.  Erie  R.  Co.,  20  X.  J.  Eq. 
379. 

-■'  State  V.  Minneapolis  &c.  R.  Co., 
39  Minn.  219,  39  X.  \V.  153;  Chi- 
cago &c.  R.  Co.  V.  Suffern,  129  111. 
274,  21  X.  E.  824;  Cummins  v. 
Evansville  &c.  R.  Co.,  115  Ind.  417, 
18  X'.  E.  6;  State  v.  Xew  Orleans 
&c.  R.  Co.,  42  La.  Ann.  138,  7  So. 
226,  43  Am.  &  Eng.  R.  Cas.  258; 
State  V.  Chicago  &c.  R.  Co.,  29  Xebr. 
412,  54  X.  W.  469;  Oshkosh  v.  Mil- 
waukee &c.  R.  Co.,  74  Wis.  534,  43 
X.  W^  489,  17  Am.  St.  175.  See  also 
State  v.  Atlantic  Coast  Line  R.  Co., 
60  Fla.  465,  54  So.  394;  State  v. 
Atlantic  Coast  Line  R.  Co.,  53  Fla. 
650.  44  So.  213,  13  L.  R.  A.  (X. 
S.)  320  (provided  there  is  no  other 
adequate  or  specific  remedy)  ;  Wa- 
bash R.  Co.  v.  Railroad  Com.,  176 
Ind.  428,  95  X.  E.  673;  Seward  v. 
Denver  &c.  R.  Co.,  17  X.  Mex.  557, 
131  Pac.  980,  46  L.  R.  A.  (X.  S.) 
242.  It  is  irregular  to  proceed  by 
rule  to  compel  a  legal  organization 
to  perform  a  duty,  however  clearly 
imposed    upon    it.      Such    a    proceed- 


ing ought  to  be  by  mandamus.  Oli- 
ver v.  Board  of  Luquidation,  40  La. 
Ann.  321,  40  So.  166.  Where  a  clear 
legal  right  to  a  writ  of  mandamus 
is  shown  the  court  has  no  discretion 
to  refuse  the  w^rit.  Illinois  Central 
R.  Co.  v.  People,  143  111.  434,  33  X. 
E.   173,   19  L.   R.   A.    119. 

35  X'^orthern  Pac.  R.  Co.  v.  Wash- 
ington Territory,  142  U.  S.  492,  12 
Sup.  Ct.  283,  35  L.  ed.  1092;  Crane 
V.  Chicago  &c.  R.  Co.,  74  Iowa  330, 
37  X.  W.  397,  7  Am.  St.  479;  State 
V.  Pensacola  &c.  R.  Co.,  27  Ela.  403, 
9  So.  89.  See  also  Chicago  &c.  R. 
Co.  V.  People,  152  111.  230,  38  X.  E. 
562.  26  L.  R.  A.  224;  Chicago  v. 
Chicago  Tel.  Co.,  230  111.  157,  82  X. 
E.  607,  13  L.  R.  A.  (X.  S.)  1084 
and  note.  In  absence  of  a  written 
assignment  mandamus  cannot  be  em- 
ployed to  compel  a  corporation  to 
transfer  shares  of  stock  to  a  person 
to  whom  tliey  have  been  delivered 
by  the  former  owner.  Burnsville 
Turnp.  Co.  v.  State,  119  Ind.  382,  20 
X.  E.  421.  3  L.  R.  A.  265.  The  right 
of  a  writ  of  mandamus  to  compel  a 
corporation  to  allow  stockholders  to 
inspect  its  books  is  in  the  discretion 
of  the  court.  Lyon  v.  American 
Screw  Co.,   16  R.  I.  472,   17  Atl.  61. 


61 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


§736 


is  resorted  to,  as  a  general  rule,  only  where  there  is  no  ordinary 
remedy  which  will  afford  adequate  relief.  It  has  therefore  been 
held  that  laws  extending  its  operation  should  be  strictly  con- 
strued,^^*^  although  the  general  rule  is  that  remedial  statutes 
should  receive  a  liberal  construction  so  as  to  "advance  the  rem- 
edy."^" Mandamus  is  frequently  resorted  to  as  against  corpora- 
tions, and  is  a  peculiarly  apt  remedy  in  case  of  railroad  com- 
panies on  account  of  their  public  or  quasi  public  character.  In- 
deed, it  is  a  general  rule  that  when  a  corporation  devotes  its 
property  to  a  public  use,  and  for  that  reason  obtains  unusual 
rights  and  powers,  it,  in  eft'ect.  grants  to  the  public  an  interest  in 
that  use  and  must  submit,  so  far  at  least,  to  the  control  of  the 
public  for  the  common  good."*^ 

§736  (638),  Mandamus  to  compel  completion  and  operation  of 
road. — The  writ  of  mandamus  has  been  awarded  to  compel  a 
company  to  operate  its  road  as  one  continuous  line,'^'*  to  compel 
the  completion  of  the  road  which  the  corporation  was  chartered 
to  build,'*"  to  prevent  the  abandonment  of  a  part  of  its  road  after 


Two  things  must  concur,  a  specific 
legal  right,  and  the  absence  of  an 
effectual  legal  remedy,  to  warrant 
the  issuance  of  a  mandamus  on  the 
relation  of  anj'  private  person.  State 
V.  Patterson  &c.  R.  Co.,  43  N.  J.  L. 
505.  Mandamus  will  not  lie  to  en- 
force the  performance  of  private  con- 
tracts. Florida  Cent.  &c.  R.  Co.  v. 
■State,  31  Fla.  482,  31  So.  103,  20  L. 
R.  A.  419,  34  Am.  St.  30. 

36  Stata  V.  New  Orleans  &c.  R. 
Co.,  42  La.  Ann.  138.  7  So.  226. 

STTousey  v.  Bell,  23  Ind.  423; 
Smith  V.  Wilcox,  24  N.  Y.  353,  82 
Am.  Dec.  302 ;  Haydon's  Case,  3  Rep. 
(Coke)  7;  Broom  Leg.  Max.  59.  For 
this  reason  we  incline  to  the  opin- 
ion that  where  there  is  a  clear  legal 
right  and  no  means  of  enforcing  it 
except  by  mandamus,  a  statute  pro- 
viding for  that  remedy  should  be 
liberally  construed. 


38  Chicaeo  &c.  R.  Co.  v.  Iowa,  94 
U.  S.  155,  24  L.  ed.  94;  Peik  v.  Chi- 
cago &-C.  R.  Co.,  94  U.  S.  164,  24  L. 
ed.  97;  Munn  v.  Illinois,  94  U.  S. 
113,  24  L.  ed.  11 ;  Pensacola  Tel.  Co. 
V.  Western  Union  Tel.  Co.,  96  U.  S. 
1,  24  L.  ed.  708;  Chicago  &c.  R.  Co. 
V.  People,  56  111.  365,  8  Am.  Rep. 
690;  Hockett  v.  State,  105  Ind.  250. 
5  N.  E.  178,  55  Am.  Rep.  201 ;  Nash 
V.  Page,  80  Ky.  539,  44  Am.  Rep. 
490;  Chesapeake  &c.  Co.  v.  Balti- 
more &c.  Co.,  66  Md.  399,  7  Atl.  809, 
59  Am.  Rep.  167 ;  People  v.  Rome 
&c.  R.  Co.,  103  N.  Y.  95,  8  N.  E. 
369;  People  v.  Budd,  117  N.  Y.  1,  22 
N.  E.  670,  682,  5  L.  R.  A.  559,  15  Am. 
St.  460.  See  post,  §§  824,  1330,  2366, 
2701;  also  ante,  §§  520,  521,  661. 

39  Union  Pac.  R.  Co.  v.  Hall,  91 
U.  S.  343,  23  L.  ed.  428. 

^^  Farmer's  Loan  &c.  Co.  v.  Hen- 
nin-    17  Am.   L.   Reg.    (N.   S.)    266; 


§  7ZG 


RAU-ROADS 


62 


its  c(imi)lftion."'^  to  com])cl  the  conii)any  to  run  daily  trains. ■*-  to 
stop  all  rci^^ular  trains  at  county  towns  as  required  by  statute/-^  to 
run  passenger  trains  to  the  terminus  of  the  road/^  to  compel  the 


People  V.  Rome  &c.  R.  Co.,  103  N. 
V.  95.  8  N.  E.  369.  But  see  Bentler 
V.  Cincinnati  &c.  Ry.  Co.,  180  Ky. 
497,  203  S.  W.  199,  and  note. 

41  Where  a  railroad  comiiany  has 
abandoned  a  portion  of  its  line 
which  it  is  under  a  duty  to  main- 
tain, mandamus  will  lie  to  compel 
tile  maintenance  and  operation  of 
such  portion  of  its  road.  Chicago, 
&c.  R.  Co.  V.  Crane,  113  U.  S.  424, 
5  Sup.  Ct.  578.  28  L.  ed.  1064;  Tal- 
cott  V.  Pine  Grove,  1  l'"lip.  (U.  S.) 
120.  Fed.  Cas.  No.  13735;  State  v. 
Sugarland  R.  Co.  (Tex.  Civ.  App. ). 
163  S.  W.  1047.  But  where  a  rail- 
road company,  by  consolidation  with 
another  company,  became  the  owner 
of  two  lines  of  road  between  certain 
points,  it  was  held  that  it  could  not 
be  compelled  by  mandamus  to  main- 
tain and  operate  both  lines  if  it  ap- 
pears that  all  public  needs  are  served 
by  the  operation  of  a  single  line. 
People  v.  Rome  &c.  R.  Co.,  103  N. 
Y.  95.  8  N.  E.  369.  See  also  Chicago 
&c.  R.  Co.  V.  State,  74  Ncbr.  77,  103 
N.  W.  1087.  Where  the  company, 
owning  a  short  line  of  railroad,  is 
wholly  insolvent,  has  neither  rolling 
stock  nor  funds  with  which,  to  oper- 
ate its  road,  the  use  of  which  has 
been  abandoned  for  several  months, 
and  cannot  be  resumed,  except  at  a 
great  loss,  the  company  will  not  be 
compelled  by  mandamus  to  replace 
or  repair  its  track,  a  part  of  which 
has  been  torn  up.  as  such  an  order 
w^ould  be  of  no  public  benefit.  State 
V.  Dodge  City  &-  Co.  R.  Co.,  53  Kans. 


329,  36  Pac.  755,  24  L.  R.  A.  564. 
See  also  Wright  v.  Edwards  &c.  R. 
Co..  101  Miss.  470,  58  So.  332;  Vicks- 
burg  Trac.  Co.  v.  Warren  County, 
100  Miss.  442,  56  So.  607. 

■*2  New  Brunswick  &c.  R.  Co.,  In 
re,  17  New  Brunswick  (1  P.  &  B.) 
667.  But  compare  People  v.  Brook- 
lyn Heights  R.  Co.,  \72  N.  Y.  90, 
64  N.  E.  788. 

'•^  Illinois  Central  R.  Co.  v.  Peo- 
ple, 143  111.  434,  2,2,  N.  E.  173,  19  L. 
R.  A.  119.  But  this  statute  was  held 
invalid  as  an  interference  with  the 
interstate  commerce  and  the  United 
States  mail  in  Illinois  Cent.  R.  Co. 
V.  Illinois.  163  U.  S.  142,  16  Sup.  Ct. 
1096,  41  L.  ed.  107.  Compare  how- 
ever Lake  Shore  &c.  R.  Co.  v.  Ohio, 
173  U.  S.  285,  19  Sup.  Ct.  465,  43 
L.  ed.  702. 

■ii  Union  Pac.  R.  Co.  v.  Hall,  91 
U.  S.  343,  23  L.  ed.  428.  State  v. 
Hartford  &c.  R.  Co.,  29  Conn.  538. 
See  also  Litchfield  &:c.  R.  Co.  v.  Peo- 
ple, 222  111.  242,  78  N.  E.  589;  Peo- 
ple V.  St.  Louis  &c.  R.  Co.,  176  111. 
512.  45  N.  E.  824,  52  N.  E.  292,  35 
L.  R.  A.  656;  Kansas  City  &c.  R.  Co. 
V.  State  (Tex.),  163  S.  W.  582.  But 
where  the  state  charters  a  parallel 
line  for  some  distance  from  one  ter- 
minus for  the  carriage  of  passengers 
exclusively,  and  such  company  ab- 
sorbs the  business  along  that  part  of 
the  route  so  that  the  receipts  from 
passenger  traffic  over  that  part  of 
the  road  will  not  pay  expenses  of 
operation,  the  railroad  company  is 
under    no    obligation    to    run    passen- 


63 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


§736 


erection  of  a  bridge,^''  and  the  Ijuilding  of  fences  and  cattle- 
guards  where  required  by  law,-*^  and  to  compel  the  construction 
of  the  road  across  streams  so  as  not  to  interfere  with  naviga- 
tion."*" It  has  also  been  granted  to  compel  a  railroad  company  to 
finish  its  track  to  the  terminus  specified  in  the  charter  and  run 
cars  thereon,-*^  notwithstanding  it  had  agreed  with  another  com- 
mon carrier  not  to  do  so."*'*  to  compel  a  street  railway  company 
to  operate  its  road  in  accordance  with  the  provisions  of  the  ordi- 
nance under  which  it  was  constructed,^"^  to  compel  a  railroad 
company  to  deliver  grain  to  all  elevators  alike  on  its  road  where 
it  was  in  the  habit  of  delivering  grain  to  some  of  them  and  there 
was  no  reason  whv  it  should  not  treat  all  alike. '^  and.  in  general, 


ger  trains  thereon.  Commonwealth 
V.  Fitchburg  R.  Co.,  12  Gray  (Mass.) 
180. 

-t"'  People  V.  Boston  &c.  R.  Co.,  70 
N.  Y.  569;  New  Orleans  e^c.  R.  Co. 
V.  Mississippi,  112  U.  S.  12.  5  Snp. 
Ct.  19,  28  L.  ed.  619;  State  v.  Wil- 
mington B.  Co.,  3  Harr.  (Del.)  312; 
State  V.  Savannah  &c.  R.  Co.,  26  Ga. 
665.  Mandamus  will  not  lie  to  com- 
pel a  railroad  company  to  locate  its 
station  at  a  particular  point  within 
the  limits  of  a  town.  Florida  Cen- 
tral &c.  R.  Co.  V.  State,  31  Fla.  482, 
13  So.  103,  20  L.  R.  A.  419.  34  Am. 
St.  30. 

4C  People  V.  Rochester  &c.  R.  Co., 
76  N.  Y.  294.  And  the  installation 
and  operation  of  gates  at  street  in- 
tersections as  required  by  ordinance. 
Council  Bluffs  v.  Illinois  Cent.  R. 
Co.,  158  Iowa  679,  138  N.  W.  891. 

•1"  State  V.  Northeastern  R.  Co.,  9 
Rich.  L.  (S.  Car.)  247,  67  Am.  Dec. 
551. 

48  People  V.  Albany  &c.  R.  Co., 
24  N.  Y.  261,  82  Am.  Dec.  295.     See 


also     Kansas     City     &c.     R.     Co.     v. 
State  (Tex.),  163  S.  W.  582. 

4f  State  V.  Hartford  &c.  R.  Co., 
29  Conn.  538. 

^'^  Potwin  Place  v.  Topeka  R.  Co., 
51  Kans.  609,  33  Pac.  309,  37  Am.  St. 
312,  and  note.  See  also  to  same 
effect  State  v.  Marion  Light  &c.  Co., 
174  Ind.  622,  92  N.  E.  731 ;  Duluth  v. 
Duluth  St.  R.  Co.,  88  Minn.  158,  92 
N.  W.  516;  Ross  Twp.  v.  Michigan 
United  R.  Co.,  165  Mich.  28,  130  N. 
W.  358,  Ann.  Cas.  1912C,  885.  But 
mandamus  will  not  ordinarily  lie  to 
enforce  mere  contract  obligations 
and  there  are  some  decisions  so  hold- 
ing that  apparently  conflict  with 
those  above  cited.  See  Northern 
Colo.  Irr.  Co.  v.  Pouffirt,  47  Colo. 
490,  108  Pac.  23 ;  Chicago  v.  Chicago 
&c.  Tel.  Co.,  230  111.  157,  82  N.  E. 
607,  12  Ann.  Cas.  109,  Ward  v. 
Comrs.  of  Beaufort  Co.,  146  N.  Car. 
534,  60  S.  E.  418,  125  Am.  St.  489, 
and  note,  especially  on  p.  511,  et  seq. 

51  People  V.  Chicago  &c.  R.  Co., 
55  111.  95,  8  Am.  Rep.  631. 


^737 


RAILROADS 


64 


to  compel  the  company  to  operate  its  road  and  exercise  its  fran- 
chises.■'■- 

§  737  (639).  Mandamus  to  compel  restoration  of  highway  and 
construction  of  crossings  or  viaducts."''- — Tlie  constitution  of  Illi- 
nois prescribes  that  "all  railroad  comi)anies  shall  permit  connec- 
tions to  be  made  with  their  tracks,  so  that  anv  *  *  *  ])ublic 
warehouse,  coal-bank,  or  coal-yard,  may  l)e  reached  l)v  the  cars 
on  said  railroad."  A\'here  the  switch  connection  to  which  the 
owners  of  a  coal  mine  or  other  specified  business  are  entitled 
under  this  provision  is  improperly  disconnected,  thev  are  en- 
titled tt)  a  mandamus  to  compel  its  restoration.''^  Where  the 
statute    pro\-ides    that    railroads    mav    construct    their    roadbeds 


•^'2  See  People  v.  Albany  &c.  R.  Co., 
24  N.  Y.  261.  82  Am.  Dec.  295;  King 
V.  Severn  &c.  Railway  C.o.,  2  Barn. 
&  Aid.  646.  Other  illustrative  cases 
in  which  mandamus  was  awarded  to 
compel  such  companies  to  perform 
their  duties  to  the  public  are  State  v. 
Atlantic  Coast  Line  R.  Co.,  53  Fla. 
650,  44  So.  213,  13  L.  R.  A.  (N.  S.) 
320;  State  v.  Chicago  &c.  R.  Co.,  85 
Kans.  649,  118  Pac.  872;  Emporia  v. 
Emporia  R.  &c.  Co.,  92  Kans.  232, 
139  Pac.  1185;  State  v.  Louisana  R. 
Co.,  135  La.  14,  64  So.  926.  Under 
the  New  Hampshire  statute  prohibit- 
ing the  operation  of  a  railroad  by 
a  rival  and  competing  company,  and 
providing  that  any  citizen  may  apply 
for  an  injunction  to  prevent  it,  a 
citizen,  as  such,  cannot  maintain  a 
suit  for  a  writ  of  mandamus  to  com- 
pel one  of  two  rival  and  competing 
companies  to  operate  its  own  road. 
State  V.  Af  anchester  &c.  R.  Co.,  62  N. 
H.  29.  The  supreme  court  of  a  state 
has  no  jurisdictiaon  to  compel  an 
interstate  railroad  company  to  oper- 
ate its  road  within  the  state,  during 
a  general  strike,  on  the  allegation 
that     enough     competent     men     are 


willing  to  work  "for  reasonable  com- 
pensation." State  V.  Great  North- 
ern R.  Co.,  14  Mont.  381,  36  Pac. 
458;  People  v.  Colorado  Central  R. 
Co.,  42  Fed.  638;  State  v.  Jackson- 
ville &c.  R.  Co.,  29  Fla.  590,  10  So. 
590;  People  v.  Chicago  &c.  R.  Co.. 
130  111.  175.  22  N.  E.  857;  Railroad 
Comrs.  V.  Portland  &c.  R.  Co.,  63 
Maine  269,  18  Am.  Rep.  208;  State 
V.  Republican  Valley  R.  Co.,  17  Nebr, 
647,  24  N.  W.  329,  52  Am.  Rep.  424 ; 
State  V.  Paterson  &c.  R.  Co.,  43  N. 
J.  L.  505;  People  v.  New  York  &c. 
R.  Co.,  104  N.  Y.  58,  9  N.  E.  856,  58 
Am.  Rep.  484.  For  an  extreme  case 
in  which  mandamus  was  awarded 
against  a  railroad  company  to  com- 
pel it  to  operate  its  road  notwith- 
standing a  strike,  see  "Mandamus  as 
a  means  of  settling  strikes,"  34  Am. 
L.  Re-.  &  Rev.  (2  N.  S.,  1895)  102. 
But  with  it  compare  State  v.  Duluth 
St.  R.  Co.,  153  Wis.  650,  142  N.  W. 
184  (holding  mandamus  would  not 
lie  to  compel  restoration  of  service 
while  stopped  liy  strike). 

•■3See  post,    §§   1442,   1447,   1574. 

■"'■i  Chicago  &c.  R.  Co.  v.  Suffern. 
129  111.  274,  21  N.  E.  824.     Mandamus 


65  ACTIONS   r.V  AND   AGAINST   t(  !KI>(  )KAT1()XS  ^  "^  ^^ 

along",  across,  or  upon  streets  or  other  hig'hwa^'S,  on  condition 
that  they  restore  such  highways  to  their  former  state  of  useful- 
ness, a  railroad  may  be  compelled  by  mandamus  to  restore  a 
highway^*''  upon  or  across  which  it  has  constructed  its  road,  if  it 
neglects  to  do  so  within  a  reasonable  length  of  time  ;"'*'  and  this  is 
so  notwithstanding  the  street  sought  to  be  restored  lies  within  a 
citv  which  has  power  to  do  the  Avork  and  recover  the  expense 
thereof  from  the  company,'''  and  notwithstanding  an  action  to 
compel  the  construction  of  crossings  is  given  by  statute. •''^  So 
v^here  the  statute  imposes  upon  a  railroad  the  absolute  duty  to 
construct  farm  crossings  their  construction  may  l^e  compelled  by 
mandamus,  unless  a  valid  excuse  for  neglecting  to  build  them 
can  be  shown. '''^  And  the  fact  that  the  statute  gives  the  occu- 
pant of  a  farm  the  right  to  recover  a  penalty  from  the  company 
upon  its  failure  to  construct  proper  crossings  will  not  deprive 
him  of  the  benefit  of  the  Avrit.*^"  ^Mandamus  has  been  held 
proper  to  determine  the  mode  in  which  a  railroad  company  shall 
be  required  to  restore  a  street  and  to  compel  it  to  perform  its 
duty,  although  the  city  council  has  not  yet  changed  the  estab- 
lished grade  of  the  street  to  conform  to  the  lawful  change  which 

will  issue  to  compel  the  replacement  •"'<•  Cummins    v.    Evansville    &c.    R. 

of  a  track  taken  up  in  violation   of  Co.,   115  Ind.  417,  13  N.  E.  6;  Indi- 

the  company's  charter.     Rex  v.   Sev-  anapolis  &c.  R.  Co.  v.  State,  27  Ind. 

ern  &c.  R.  Co.,  2  B.  &  Aid.  646.  489;    People  v.   Chicago  &c.   R.   Co., 

55  Jamestown    v.    Chicago    &c.    R.  67  III  118;  State  v.  Hannibal  &c.  R. 

Co.,  69  Wis.  648,  34  N.  W.  728.     A  Co.,    86    Mo.    13.      See     People    v. 

simple    permission    to    the    railroad  Dutchess  &c.   R.   Co.,   58  N.   Y.   152; 

company  to  lay  its  track  in  the  street  People  v.  New  York  &c.   R.  Co.,  74 

gives   it  no   authority  to   destroy  the  -^^   ^  •  ^'^-• 

street,  and  the  company  may  be  com-  ^'  Oshkosh    v.    Milwaukee    &c.    R. 

pelled   by   mandamus    to    restore   the  Co.,  74  \\'js.   534,   34  X.  W.  489,   17 

highway  to  its  former  condition  with-  -'^'^-   ^t-   ^^^• 

out   regard   to   any   statute   expressly  5S  State  v.  Chicago  &c.   R.   Co.,  29 

imposing    such    duty.      A    failure    to  Nebr.  412,  45  N.  W.  469. 

build    and    maintain    suitable    cross-  59  State  v.  Chicago  &c.  R.  Co.,  79 

ings   will   render  the   company   liable  Wis.  259,  48  X.  W.  243,  12  L.  R.  A. 

for  maintaining  a  nuisance.  Mounds-  180. 

ville  V.  Ohio  Riv.  R.  Co.,  37  W.  Va.  go  state  v.  Chicago  &c.  R.  Co.,  79 

92,  16  S.  E.  514,  54  Am.  &  Eng.  R.  Wis.  259,  48  N.  W.  243,  12  L.  R.  A. 

Cas.  538.  180. 


§  /  38 


RAILROADS 


66 


the  relator  claims  should  be  adopted. "^^  The  writ  has  also  been 
awarded  to  compel  a  railroad  company  to  construct  a  bridge 
or  viaduct  where  its  tracks  cross  a  street. ^- 

§  738  (640).  Mandamus  to  compel  carriage  of  freight.''^^ — 
Where  a  railroad  company  wrongfully  refuses  to  receive  and 
carry  freight,  to  the  injury  of  the  public  generally,  a  writ  of  man- 
damus may  be  issued  at  the  suit  of  the  proper  public  officer 
commanding  the  company  to  resume  the  discharge  of  its  duties, 
by  promptly  receiving,  transporting  and  delivering  all  such 
freight  as  is  ofifcred  for  transportation,  on  the  usual  and  reason- 
able terms  and  charges.'''^  The  writ  has  been  awarded  to  compel 
the  company  to  treat  all  shippers  alike, *"'^  and  to  deliver  grain  to 
all  elevators  similarly  situated  upon  its  line.*^"  But  in  England 
it  has  been  held  that  it  will  not  be  granted  to  compel  a  railroad 


^'1  State  V.  Minneapolis  &c.  R. 
Co,.  39  Minn.  219,  39  N.  W.  153. 

C2  State  V.  St.  Paul  &c.  R.  Co.,  35 
Minn.  131,  28  N.  W.  3.  59  Am.  Rep. 
313;  State  v.  Missouri  &c.  R.  Co.,  33 
Kans.  176,  5  Pac.  772.  For  other 
somewhat  similar  decisions  holding 
that  the  company  may  be  compelled 
by  mandamus  to  perform  its  duties 
as  to  providing  crossings  and  keep- 
ing tracks  in  streets  in  condition  not 
to  obstruct  the  public,  see  Wabash 
R.  Co.  V.  Railroad  Comrs,  176  Ind. 
428,  95  N.  E.  673;  Emporia  v.  Em- 
poria &c.  R.  Co.,  92  Kans.  232,  139 
Pac.  1185;  State  v.  Milwaukee  Elcc. 
R.  &c.  Co.,  144  Wis.  386,  129  N.  W. 
623,  140  .\m.  St.  1025  (to  sprinkle  as 
required   by   ordinance). 

63  See  post,  §  2366. 

C4  People  V.  New  York  &c.  R.  Co., 
28  Hun  (N.  Y.)  543.  See  also  Lara- 
bee  Flour  Mills  Co.  v.  Missouri  Pac. 
R.    Co.,    74   Kans.   808,    88    Pac.    72. 

C"'  State  V.  Delaware  &-c.  R.  Co., 
48  X.  J.  L.  55,  57  Am.  Rep.  543.     See 


also  State  v.  Fremont  &c.  R.  Co.,  22 
Nebr.  313,  35  N.  W.  118;  Central  U. 
Tel.  Co.  V.  State,  118  Ind.  194,  19  N. 
E.  604,  10  Am.  St  114;  Central  Un. 
Tel.  Co.  V.  State,  123  Ind.  113,  24  N. 
E.  215 ;  Price  v.  Riverside  &c.  Co., 
56  Cal.  431 ;  5  Thomp.  Corp.  (2nd 
ed.)  §  5770;  and  to  enforce  rate  fixed 
by  railroad  commission,  State  v.  At- 
lantic Coast  Line  R.  Co.,  48  Fla.  146, 
37  So.  657 ;  State  v.  Fremont  &c.  R. 
Co.,  22  Nebr.  313,  35  N.  W.  118.  See 
also  Public  Service  Com.  v.  West- 
chester St.  R.  Co.,  206  N.  Y.  209,  99 
N.  E.  536. 

GO  Chicago  &c.  R.  Co.  v.  People, 
56  111.  365,  8  Am.  Rep.  690.  And  to 
furnish  proper  transportation  facili- 
ties as  ordered  by  the  railroad  com- 
mission. Board  of  Railroad 
Comrs.  V.  Delaware  &c.  R.  Co.,  79  N. 
J.  L.  219.  76  Atl.  236.  In  Mobile  &c. 
R.  Co.  v.  Wisdom,  5  Heisk.  (Tenn.) 
125,  the  company  was  compelled  by 
mandamus  to  accept  tax  receipts,  un- 
der a  statute,  in  payment  of  fare  and 
freight  charges. 


67  ACTIONS   BY   AAD  AGAINST   CORPORATIONS  §  739 

company  to  extend  equal  facilities  to  all  upon  similar  terms.""^ 
And  where  a  person  has  an  adequate  remedy  at  law  by  an  action 
for  damages  it  would  seem  that  he  ought  not  to  be  aided  by  the 
extraordinary  remedy  of  mandamus  to  redress  his  own  private 
grievances  caused  by  the  failure  of  the  company  to  carry  his 
freight  upon  the  same  terms  as  those  upon  which  it  carries  the 
freight  of  others/"'*  It  may  be,  however,  wdiere  the  company  re- 
fuses to  perform  its  duty  as  a  common  carrier  and  continually 
discriminates  against  him  unjustly  and  oppressively  that  an  ac- 
tion for  damages  will  not  afford  him  adequate  relief,  and,  in 
such  case,  he  might,  in  some  jurisdictions,  apply  for  a  writ  of 
mandamus.  The  entire  matter  is  now  very  largely  regulated  by 
congressional  and  state  legislation. 

§739  (641).  Mandamus  to  compel  the  company  to  maintain 
stations  and  furnish  increased  facilities. — The  question  as  to 
whether  mandamus  will  issue  to  compel  the  re-establishment  of 
an  abandoned  station,  or  the  erection  and  maintenance  of  new 
stations  at  points  where  they  are  demanded  for  the  convenience 
of  the  public  has  been  much  discussed.  That  such  a  writ  may 
be  issued  if  a  valid  statute  imposes  the  duty  of  maintaining  a 
station  at  that  point  admits  of  no  question,^^  and  the  courts  have 
gone  far  in  construing  statutes  to  raise  such  an  obligation.  In 
a  Maine  case,  the  company's  charter  provided  "that  said  corpora- 

67  Robins,  Ex  parte,  3  Jur.  103.  Concord  &c.  R.  Co.  v.  Boston  &c.  R. 

68  People  V.  New  York  &c.  R.  Co.,  Co.,  67  N.  H.  464,  41  Atl.  263 ;  State 
22  Hun  (N.  Y.)  533.  See  also  v.  New  Haven  &c.  R.  Co.,  Zl  Conn. 
Crane  v.  Chicago  &c.  R.  Co.,  74  Iowa  153 ;  State  v.  New  Haven  &c.  R.  Co., 
330,  Zl  N.  W.  397,  7  Am.  St.  479.  43  Conn.  351.  In  the  two  latter  cases 
But  compare  Larabee  Flour  Mills  the  statute  forbade  the  abandonment 
Co.  V.  Missouri  Pac.  R.  Co.,  74  Kans.  of  a  railway  station  established  for 
808,  88  Pac.  72;  State  v.  Chicago  &c.  twelve  years.  So  in  State  v.  New 
R.  Co.,  83  Nebr.  524,  120  N.  W.  163.  Haven  &c.  R.  Co.,  41  Conn.  134,  the 

69  Commonwealth  v.  Eastern  R.  company  was  compelled  by  manda- 
Co.,  103  Mass.  254,  4  Am.  Rep.  555;  mus  to  resume  an  abandoned  station. 
Northern  Pac.  R.  Co.  v.  Washington  But  a  statute  was  held  unreasonable 
Ter.,  142  U.  S.  492,  12  Sup.  Ct.  283,  and  void  in  Louisiana  &c.  Ry.  Co.  v. 
35  L.  ed.  1092;  People  v.  Louisville  State,  91  Ark.  358,  121  S.  W.  284, 
&c.  R.  Co.,  120  111.  48,  10  N.  E.  657;  where    it    required    a    station    in    a 


§739 


RAILROADS 


68 


tion  *  *  *  shall  be  bound  at  all  times  to  have  said  road  in 
good  repair,  and  a  sufficient  number  of  engines,  carriages  and 
vehicles  for  tlie  transportation  of  persons  and  articles,  and  be 
obliged  to  receive  at  all  proper  times  and  places,  and  convey 
the  same."  The  supreme  court  held  that  a  mandamus  should 
issue  for  the  estahlishmcnl  of  a  station  at  a  point  designated  by 
tlie  railroad  commissioners  as  a  proper  and  necessary  place  for 
the  receipt  and  discharge  of  passengers  and  freight."'^  The  doc- 
trine has  been  advanced  that  the  common  law  under  the  prin- 
ciple that  it  is  the  duty  of  a  railway  company  to  furnish  rea- 
sonably sufficient  and  equal  facilities  to  the  public,  whose  serv- 
ant it  is,  authorizes  courts,  by  mandamus,  to  compel  the  erec- 
tion and  maintainance  of  new  stations  in  proper  cases." ^  In  a 
case  before  the  supreme  court  of  Washington  Territory  it  ap- 
peared that  the  defendant  railroad  company  refused  to  stop  its 
trains  at  Yakima  City  at  any  time  or  for  any  purpose,  although 
the  place  contained  at  the  time  of  the  trial  a  resident  popula- 
tion of  one  hundred  and  fifty  persons,  and  maintained  a  flouring 
mill,  two  hotels,  twenty-seven  dwelling  houses,  and  both  public 


sparsely  settled  district  and  the  ex- 
pense would  be  great  and  there 
would  be  little,  if  any,  benefit  either 
to  the  company  or  the  public. 

""  Railroad  Comrs.  v.  Portland  &c. 
R.  Co.,  63  Maine  269,  18  Am.  Rep. 
208.  So,  railroad  commissioners  arc 
now  given  the  power  by  statute  in 
many  jurisdictions  to  require  new 
stations  or  the  change  of  old  ones 
and  such  statutes  have  been  uphchl 
again  and  again.  Minneapolis  &c. 
R.  Co.  V.  Minnesota,  193  U.  S.  53,  24 
Sup.  Ct.  396,  48  L.  cd.  614:  Nash- 
ville &c.  R.  Co.  v.  Stale.  137  Ala. 
439,  34  So.  401 ;  State  v.  Des  Moines 
&c.  R.  Co.,  87  Iowa  644,  54  N.  W. 
461 ;  In  re  Railroad  Comrs.,  79  Vt. 
266,  65  Atl.  82;  Minneapolis  &c.  R. 
Co.  v.  Railroad  Comr.,  136  Wis.  146, 
116  N.  W.  905,  17  L.  R.  A.  (N.  S  ) 
821,   and   cases   cited. 


■^1^  People  v.  Chicago  &c.  R.  Co., 
130  111.  175,  22  N.  E.  857;  State  v. 
Republican  Valley  R.  Co.,  17  Nebr. 
647,  24  N.  W.  329,  52  Am.  Rep.  424. 
In  McCoy  v.  Cincinnati  &c.  R.  Co., 
13  Fed.  3,  the  United  States  Circuit 
Court  in  Oliio  issued  an  order  to 
compel  the  defendant  to  receive  and 
deliver  stock  at  the  plaintiff's  stock- 
j-.'ird,  although  the  defendant  had  a 
contract  with  the  proprietor  of  an 
adjoinin'j;  stockyard  for  the  use  of 
his  yard  for  all  business  transacted 
at  that  point.  In  giving  his  deci- 
sion, Judge  Baxter  remarked  that  by 
accepting  its  charter,  a  railroad  un- 
dertakes to  erect  depots,  and  desig- 
nates stopping  places  wherever  the 
jjublic  necessities  require  them.  See 
alM.  Morida  &c  R.  Co.  v.  State.  31 
Fla.  482.  13  So.  103,  34  Am.  St.  30, 
20  L.  R.  A.  419;  Concord  &c.  R.  Co. 


69 


ACTIONS    15V    AND  AGAINST  CORl'OKATIONS 


§739 


and  private  schools,  and  had  been,  until  injured  by  unjust  dis- 
crimination after  the  advent  of  the  railroad,  three  times  as  large, 
and  transacting-  a  business  of  more  than  $200,000  per  year.  The 
only  facilities  provided  for  the  receipt  and  discharge  of  either 
passengers  or  freight  were  at  the  town  of  North  Yakima,  four 
miles  distant,  to  and  from  which  point  all  traffic  had  to  pass  by 
private  conveyance.  The  court  granted  a  writ  of  mandamus  to 
com]>el  the  railway  company  to  construct  a  depot  and  give  other 
railroad  facilities  at  the  town.'^-  But  upon  appeal  to  the  Supreme 
Court  of  the  United  States  this  decision  was  reversed,  Justice 
Brewer,  Field  and  Harlan  dissenting,''^  and  the  court  held  that 
mandamus  to  compel  a  railroad  company  to  do  a  particular  act 
in  constructing  its  road  or  buildings,  or  in  running  its  trains, 
will  lie  only  where  there  is  a  specific  duty  on  its  part  to  do  that 
act.  and  clear  proof  of  a  breach  of  that  duty  :  and  that  no  com- 
mon law  duty  exists  on  the  part  of  a  railroad  to  stop  its  trains  at 


V.  Boston  &c.  R.  Co.,  67  N.  H.  404, 
41  Atl.  263 ;  Commonwealth  v.  East- 
ern R.  Co..  103  Mass  254,  4  Am.  Rep. 
555. 

"2  Northern  Pac.  R.  Co.  v.  Terri- 
tory. 3  Wash.  Ter.  303.  13  Pac.  604, 
29  Am.  &  Eng".  R.  Cas.  82.  The  court 
says :  "In  the  absence  of  legislation 
providing  other  means  for  regulat- 
ing and  controlUng  the  matter,  we 
have  no  doubt  of  the  power  of  a 
court  of  general  jurisdiction,  in  a 
proper  case,  to  compel  a  railroad  to 
extend  to  the  public  proper  facilities 
for  the  transaction  of  business." 

'3  Northern  Pacific  R.  Co.  v. 
Washington  Ter.,  142  U.  S.  492,  12 
Sup.  Ct.  283,  35  L.  ed.  1092.  See  also 
People  V.  New  York  &c.  R.  Co.,  104 
N.  Y.  58,  9  N.  E.  856,  58  Am.  Rep. 
484.  In  his  dissenting  opinion  in 
the  former  case,  Justice  Brewer  says: 
"A  railroad  corporation  has  a  public 
duty  to  perform  as  well  as  a  private 
interest  to  subserve,  and  I  never  be- 


fore believed  that  the  courts  would 
perm.it  it  to  abandon  the  one  to  pro- 
mote the  other.  Nowhere  in  its 
charter  is  in  terms  expressed  the 
duty  of  carrying  passengers  and 
freight.  Are  the  courts  impotent  to 
compel  the  performance  of  this  duty? 
Is  the  duty  of  carrying  passengers 
and  freight  any  more  of  a  public 
duty  than  that  of  placing  its  depots 
and  stopping  its  trains  at  those  places 
which  will  best  accommodate  the 
public?  If  the  state  of  Indiana  in- 
corporates a  railroad  to  build  a  road 
from  New  Albany  through  Indian- 
apolis to  South  Bend,  and  that  road 
is  built,  can  it  be  that  the  courts  may 
compel  the  road  to  receive  passen- 
gers and  transport  freight,  but  in 
the  absence  of  a  specific  direction 
from  the  legislature  are  powerless 
to  compel  the  road  to  stop  its  trains 
and  build  a  depot  at  Indianapolis? 
I  do  not  so  belittle  the  power  or  duty 
of    the    courts." 


§739 


RAILROADS 


70 


any  particular  point.''*  Under  the  Illinois  statute  it  has  been 
held  that  a  railroad  company  may  be  compelled  by  mandamus  to 
stop  all  regular  trains  at  certain  stations  to  discharoe  and  re- 
ceive passengers  and  freight. "^^  But,  in  the  absence  of  any  stat- 
utory provision  upon  the  subject,  it  has  been  held  that  a  rail- 
road company  will  not  be  compelled  by  mandamus  to  furnish 
increased  passenger  facilities  by  running  any  particular  number 
of  trains,  especially  if  the  amount  of  travel  will  not  support  an 
additional  train. "^  So,  it  has  been  held  that  a  railroad  company 
may  discontinue  a  station  in  the  exercise  of  its  discretion,  where 
the  station  is  not  needed  and  that  mandamus  will  not  lie  to 
compel  its  continuance.''^'^ 


"7*1  Northern  Pac.  R.  Co.  v.  Wash- 
ington Ter.,  142  U.  S.  492,  12  Sup. 
Ct.  283,  35  L.  ed.  1092.  To  the  same 
effect  see  People  v.  Chicago  &c.  R. 
Co.,  35  Am.  &  Eng.  R.  Cas.  462,  re- 
versed, 130  111.  175,  22  N.  E.  857; 
St.  Louis  &c.  R.  Co.  V.  State,  61  Ark. 
9,  51  S.  W.  570;  Page  v.  Louisville 
&c.  R.  Co.,  129  Ala.  232,  29  So.  676 ; 
Mobile  &c.  R.  Co.  v.  People,  132  111. 
559,  24  N.  E.  463;  Chicago  &c.  R. 
Co.  V.  People,  152  111.  230,  38  N.  E. 
562,  26  L.  R.  A.  224;  State  v.  Kan- 
sas City  Ry.  Co.,  51  La.  Ann.  20O, 
25  So.  126;  Jacquelin  v.  Erie  R.  Co.. 
69  N.  J.  Eq.  432,  61  Atl.  18  (can  not 
prevent  discontinuance)  ;  People  v. 
New  York  &c.  R.  Co.,  104  N.  Y.  58, 
66,  9  N.  E.  856,  58  Am.  Rep.  484; 
Bonham  v.  Columbia  &c.  R.  Co.,  26 
S.  Car.  353,  2  S.  E.  127.  In  the  ab- 
sence of  a  law  or  a  rule  of  the  rail- 
road commission  prescribing  the 
type  to  be  used  in  printing  schedules 
of  rates  to  be  posted  by  railroad 
companies  in  their  stations,  the  su- 
preme court  cannot  by  mandamus 
direct   in    what    size   type    they    shall 


be  printed.  State  v.  Pensacola  &c. 
R.  Co.,  27  Fla.  403,  9  So.  89.  Man- 
damus will  lie  to  compel  a  railway 
company  to  pay  into  the  county 
court  the  amount  of  damages  as- 
sessed by  reason  of  the  location  and 
operation  of  its  railway  across  the 
petitioner's  premises,  on  a  showing 
that  the  right  of  way  has  been  law- 
fully condemned,  the  damages  duly 
awarded,  and  no  appeal  taken  there- 
from. State  V.  Grand  Island  &c.  R. 
Co.,  27  Ncbr.  694,  43  N.  W.  419. 

7^-i  Illinois  &c.  R.  Co.  v.  People, 
143  111.  434,  33  N.  E.  173,  19  L.  R.  A. 
119.  See  also  New  Haven  &c.  R. 
Co.  V.  State,  44  Conn.  376,  384. 

TC  Ohio  &c.  R.  Co.  V.  People,  120 
111.  200,  11  N.  E.  347;  People  v.  Long 
Island  R.  Co.,  31  Hun  (N.  Y.)  125; 
Commonwealth  v.  Eitchburg  R.  Co., 
12  Gray  (Mass.)  180.  See  also  Peo- 
ple v.  Rome  &c.  R.  Co.,  103  N.  Y. 
95,  8  N.  E.  369 ;  People  v.  New  York, 
&c.  R.  Co.,  104  N.  Y.  58,  9  N.  E. 
856,  58  Am.  Rep.  484. 

"77  Chicago  &c.  R.  Co.  v.  Slate,  74 
Nebr.  77,  103  N.  W.  1087.     See,  how- 


71 


ACTIONS   BY  AND   AGAINST   CORPORATIONS 


S740 


§  740  (642).  When  mandamus  will  not  lie. — ^Mandamus  will 
not  issue  to  compel  the  performance  of  acts  which  are  not  clearly 
within  the  legal  duties  of  those  against  whom  the  writ  is  directed, 
and  it  must  appear  in  the  application  for  a  writ  of  mandamus 
that  the  defendant  is  under  legal  obligation  to  perform  such  acts, 
and  that  the  petitioner  has  a  legal  right  to  demand  their  per- 
formance."^ And  even  where  the  duty  seems  clear  the  court 
will  not  issue  a  mandamus  when,  if  issued,  it  would  prove  un- 
availing,'^ as  in  a  case  of  the  performance  of  duties  involving  the 
exercise  of  a  large  measure  of  good  faith  and  discretion  on  the 
part  of  the  corporation  and  its  agents.  For  this  reason  courts 
of  equity  hesitate  to  undertake  to  compel  a  railroad  corporation 
to  construct  or  to  complete  its  road,  since  the  proper  construc- 
tion of  a  railroad  would  necessarily  involve  the  exercise  of  much 
technical  skill  and  judgment,  and  depend  largely  upon  the  good 
faith  of  the  parties  directing  the  work.^^  So,  where  the  company 
is  utterly  unable,  by  reason  of  insolvency  or  the  like,  to  perform 
its  duties  to  the  public,  the  courts  will  not,  as  a  rule,  attempt  to 
compel  it  to  do  so  by  mandamus,  as  this  would  be  "a  vain  and 


ever,  ante,  §  72)6,  and  compare  Day 
V.  Tacoma  &c.  A.  Co.,  80  Wash.  161, 
141   Pac.  347,  L.  R.  A.   1915B,  547. 

"8  People  V.  Colorado  Cent.  R.  Co., 
42  Fed.  638.  In  this  case  the  peti- 
tioner appeared  "on  behalf  of  the 
people  of  the  state  of  Colorado,"  but 
failed  to  show  that  he  was  one  of 
them.  See  also  People  v.  St.  Louis 
Elec.  &c.  R.  Co.,  122  III.  App.  422; 
and  numerous  cases  cited  and  re- 
viewed in  note  to  Ward  v.  Comrs.  of 
Beaufort  Co.,  146  N.  Car.  534,  60  S. 
E.  418,  125  Am.  St.  489,  493  et  seq. 
Also  State  v.  Northern  Pac.  R.  Co., 
Si  Wash.  370,  102  Pac.  24  Relator 
must  come  into  court  with  clean 
hands.  United  States  v.  Fisher,  222 
U.  S.  204.  ?>2  Sup.  Ct.  Z7,  56  L.  ed. 
165. 

"'^See  State  v.  Seattle  Baseball 
Ass'n,  61  Wash.  79,  111  Pac.  1055.  31 


L.  R.  A.  (N.  S.)  512.  The  court  will 
deny  an  application  for  writ  of  mand- 
amus to  compel  the  operation  of  a 
road  to  a  point  beyond  its  jurisdic- 
tion. People  V.  Colorado  Central  R. 
Co.,  42  Fed.  638. 

80  Ohio  &c.  R.  Co.  V.  People,  120 
111.  200,  11  N.  E.  347;  Ross  v. 
Union  Pac.  R.  Co.,  Fed  Cas.  No. 
12080;  1  Woolw.  26;  Fallon  v.  Rail- 
road Co.,  1  Dill.  (U.  S.)  121,  Fed. 
Cas.  No.  4629;  Danforth  v.  Phila- 
delphia &c.  R.  Co.,  30  N.  J.  Eq.  12. 
and  cases  in  reporter's  note ;  Heath- 
cote  V.  North  Staffordshire  R.  Co., 
20  N.  J.  Ch.  82 ;  South  Wales  R.  Co. 
V.  Wythes,  5  De  G.,  M.  &  G.  880; 
Ranger  v.  Great  Western  R.  Co.,  1 
Eng.  R.  &  C.  Cas.  1.  51;  Wheatley 
V.  Westminster  &c.  Coal  Co.,  L.  R. 
9  Eq.  538. 


§740 


RAILROADS 


72 


fruitless  thing."^^  Some  courts,  however,  have  issued  the  writ 
notwithstanding  the  return  of  the  company  that  it  had  no  funds 
and  no  means  of  obtaining  any.*^-  There  is  some  reason  for  the 
latter  practice,  especially  when  the  company,  by  its  own  favilt, 
has  placed  itself  in  such  a  position,  for  circumstances  may  change, 
and,  in  any  event,  it  may  be  well  to  thus  compel  the  company  to 
make  a  bona  fide  efTort  to  perform  its  duties  and  comply  with  the 
order.  If  it  is  then  found  to  be  impossible  the  court  can  see  that 
no  injustice  is  done  to  the  company  and  will  refuse  to  punish 
it  for  contempt.  Mandamus  will  not  lie  ordinarily,  at  least,  to 
enforce  pri\-ate  contracts  with  a  railroad  company, '^•'  nor,  as  a 
general  rule,  in  any  case  where  there  is  an  adequate  remedy  at 
lav^^*'*  It  w^ill  not  lie  to  prevent  the  exercise  of  a  lawful  discre- 
tion with  which  the  company  is  vested,^-''  nor  to  compel  a  judge 
to  decide  in  a  particular  way  an  application  by  the  receivers  of 
a  railroad  compan}^  for  authority  to  enter  into  an  agreement  for 


>^i  State  V.  Dodge  City  &c.  R.  Co., 
53  Kans.  329,  36  Pac.  755,  24  L.  R. 
A.  564,  and  note ;  Ohio  &c.  R.  Co.  v. 
People.  120  111.  200,  11  N.  E.  347; 
Queen  v.  Ambergate  &c.  R.  Co.,  1 
El.  &  Bl.  372;  Bristol  &c.  R.  Co.,  In 
re,  L.  R.  3  Q.  B.  D.  10;  Queen  v. 
London  &c.  R.  Co..  16  Ad.  &  E.  (N. 
S.)  864. 

^-  Savannali  &c.  Co.  v.  Shuman, 
91  Ga.  400,  17  S.  E.  937,  44  Am.  St. 
43 ;  Silverthorne  v.  Warren  R.  Co., 
.13  N.  J.  L.  173;  People  v.  Dutchess 
&c.  R.  Co.,  58'N.  Y.  152;  Queen  v. 
Birmingham  &c.  R.  Co.,  2  Ad.  &  E. 
(X.  S.)  47;  Queen  v.  Trustees  &c., 
1  Ad.  &  E.  (N.  S.)  860.  See  also 
Fort  Dodge  v.  Minneapolis  &c.  R. 
Co.,  87  Iowa  389,  54  N.  W.  243,  55 
Am.  &  Eng.  R.  Cas.  58  (holding  lack 
of  funds  no  reason  for  refusing  to 
compel  a  receiver  to  perform  a  legal 
duty,  such  as  constructing  a  cross- 
ing). 


<"*3  State  V.  New  Orleans  &c.  R.  Co., 
Zl  La.  Ann.  589;  Florida  Cent.  R. 
Co.  V.  State,  31  Fla.  482,  13  So.  103, 
20  L.  R.  A.  419,  34  Am.  St.  30;  State 
v.  Patcrson  &c.  R.  Co.,  43  N.  J.  L. 
505;  State  v.  Washington  Irr.  Co., 
41  Wash..  283,  83  Pac.  308,  111  Am. 
St.  1019;  State  v.  Milwaukee  Medical 
College,  128  Wis.  7,  106  N.  W^  116, 
3  L.  R.  A.  (N.  S.)  1115,  116  Am.  St. 
21,  8  Ann.  Ca.s.  407;  note  in  125  Am. 
St.  511,   512. 

S4  State  V.  Mol)ilc  &c.  R.  Co.,  59 
Ala.  321. 

«.'.  People  V.  New  York  &c.  R.  Co., 
104  N.  Y.  58,  9  N.  E.  856,  58  Am. 
Rep.  484 ;  Florida  &c.  R.  Co.  v.  State, 
31  Fla.  482,  13  So.  103,  20  L.  R.  A. 
419,  34  Am.  St.  30;  State  v.  Canal 
&:c.  R.  Co.,  2Z  La.  Ann.  ZZZ ;  Chicago 
&c.  R.  Co.  V.  State,  74  Nebr.  11,  103 
X.  W.  1087;  Seward  v.  Denver  &c. 
R.  Co.,  17  N.  Mex.  557,  131  Pac.  980, 
46   L.    R.   A.    (N.    S.)    242,   and   nu- 


ACTIONS  nV  AND  AGAINST  CORPORATIONS 


§741 


the  partial  readjustment  of  its  affairs.^"  A  railroad  company 
may  be  estopped  by  its  acts  to  claim  the  benefit  of  a  writ  of 
mandamus.  The  fact  that  a  railroad  company  agreed  to  the 
entry  of  a  judicial  order  as  to  a  crossing  by  it  over  the  track  of 
another  company  and  has  acted  under  it  is  a  sufficient  reason 
for  denying  a  writ  of  mandamus  to  set  aside  and  vacate  the 
order.^' 

§  741  (643).  Who  may  be  relator. — There  is  considerable 
conflict  among  the  authorities  as  to  whether  a  private  party  may 
be  a  relator  in  a  proceeding  for  a  mandamus  to  enforce  a  pub- 
lic right.  The  attorney-general,  or  other  public  officer,  may 
doubtless  apply  for  the  writ  in  all  such  cases.^^  but  not,  ordi- 
narily, unless  he  seeks  to  protect  some  public  right  or  to  secure 
some  public  interest.^'*  Some  of  the  courts  also  hold  that  a 
private  party  cannot  be  a  relator  unless  he  has  some  private 
interest  to  be  protected  or  some  particular  right  to  be  enforced 
independent  of  that  which  he  has  merely  as  one  of  the  general 
public. '>*"  But  the  weight  of  authority  is  to  the  effect  that  a 
private  citizen  may,  as  one  of  the  general  public,  be  relator  and 
apply  for  a  mandamus  to  enforce  a  public  right  or  duty,  due  to 
the  public  at  large  and  not  merely  to  the  government,  without 
showing  any  special  and  peculiar  interest. ^^     He  must,  however. 


merous  authorities  cited  in  note  in 
125  Am.  St.  502. 

s«Rice,  In  re,  155  U.  S.  396,  15 
Sup.  Ct.  149.  39  L.  ed.  198;  see  also 
California  &c.  Co.  v.  Mogan,  13  Cal. 
App.  65.  108  Pac.  882;  Norris  v. 
Cross,  25  Okla.  287,  105  Pac.  1000. 

87  Fort  Street  Union  Depot  Co.  v. 
State  R..  &c.  Co.,  81  Mich.  248,  45 
N.  W.  973. 

885  Thomp.  Corp.  (2nd  ed.),  §  5785. 

8!>  Attorney-General  v.  Albion  &c. 
In  St.,  52  Wis.  469.  9  N.  W.  391 ;  Peo- 
ple V.  Rome  &c.  R.  Co,.  103  N.  Y. 
95.  8  N.  E.  369. 

'•'"  Mitchell    v,    Boardman,    79    Mc. 


469,  10  Atl.  452 ;  Bobbett  v.  State,  10 
Kans.  9;  Smith  v.  Saginaw,  81 
Mich,'  123.  45  N.  \V.  964 ;  Martindale 
V.  Kansas  City  &c.  R.  Co.,  60  Mo. 
508;  Heffner  v.  Commonwealth,  28 
Pa.   St.   108. 

91  Union  Pac,  R.  Co.  v.  Hall,  91 
U,  S.  343,  23  L,  ed,  428;  Savannah 
&c,  Co.  V,  Shnman,  91  Ga.  400,  17 
S.  i:.  937.  44  Am.  St,  43 ;'  Glencoe  v. 
People.  78  111.  382;  Chicago  &c,  R. 
Co.  V.  Suffern,  129  111.  274.  21  N,  E. 
824;  State  v.  Board  &c„  92  Ind,  133; 
Attorney-General  v.  Boston,  123 
Mass.  460,  469:  State  v.  Weld,  39 
Minn,   426.   40   X,   W,   561  :    State    v. 


§742 


RAILROADS 


74 


in  such  a  case,  show  that  he  is  one  of  the  general  public  to  whom 
the  duty  is  due  or  whose  rights  are  injuriously  affected. ••-' 

§  742  (644).  Quo  warranto. — We  have  elsewhere  con- 
sidered the  subject  of  quo  warranto  as  a  means  of  forfeit- 
ing' the  charter  of  a  corporation  and  as  a  remedy  for 
abuse  of  powers  as  well  as  the  usurpation  of  franchises.''-"^  In 
that  connection  we  also  considered,  to  some  extent,  the  general 
nature  of  the  proceeding,  the  jurisdiction  of  the  courts  and  the 
proper  parties  to  the  proceeding.  Little,  therefore,  remains  to 
be  said,  as  the  practice  is  so  far  regulated  by  different  statutory 
provisions  in  the  various  states  that  few  general  rules  can  be  laid 
down.  At  common  law  the  writ  of  quo  warranto  was  a  writ  of 
right,  but  in  modern  practice  it  has  been,  almost  everywhere,  su- 
perseded by  an  information  in  the  nature  of  a  quo  warranto, 
which  is  a  civil  proceeding  and  is  governed  by  the  rules  of  civil 
practice'^^  rather  than  those  relating  to  criminal  prosecutions,  al- 
though it  is,  in  a  sense,  an  extraordinary  remedy  and  is  usually 


Hannibal  &c.  R.  Co.,  86  Mo.  13; 
State  V.  Francis,  95  Mo.  44,  8  S.  W. 
5;  Chumasero  v.  Potts,  2  Mont.  242; 
State  V.  Gracey,  11  Nev.  223;  State 
V.  VanDuyn,  24  Ncbr.  586,  39  N.  W. 
612;  State  v.  Brown,  38  Ohio  St. 
344;  State  v.  Dayton  &c.  R.  Co.,  36 
Ohio  St.  434;  State  v.  Ware,  13  Ore. 
380,  10  Pac.  885;  Wise  v.  Bigger,  79 
Va.  269.  See  Crane  v.  Chicago  &c.  R. 
Co.,  74  Iowa  330,  37  N.  W.  397,  7  Am. 
St.  479,  and  note;  People  v.  New 
York,  137  App.  Div.  936,  121  N.  Y.  S. 
1143.  See  also  Loraine  v.  Pittsburgh 
&c.  Co.,  205  Pa.  St.  132,  54  Atl.  580, 
61  L.  R.  A.  502,  and  authorities  cited 
as  to  the  right  of  one  having  a  special 
interest.  And  see  as  to  wliat  per- 
sons may  join  as  relator,  Alley  v. 
Musick,  68  W.  Va.  523,  70  S.  K. 
124  Ann.  Cas.  1912B,  419,  420-422 
and  cases  there  cited. 


f>2  People  V.  Colorado  &c.  R.  Co., 
42  Fed.  638. 

93  See  ante,   §§  64,  65,  66. 

9  4  People  V.  Cook,  8  N.  Y.  67,  59 
Am.  Dec.  451 ;  Ames  v.  Kansas,  111 
U.  S.  449,  4  Sup.  Ct.  437.  28  L.  ed. 
482 ;  Atchison  &c.  R.  Co.  v.  People.  5 
Colo.  60;  Attorney-General  v.  Sulli- 
van, 163  Mass.  446.  40  N.  E.  843,  28 
L.  R.  A.  455;  State  v.  Kupferle,  44 
Mo.  154,  100  Am.  Dec.  565.  See  also 
State  V.  Dover,  113  Minn.  452,  130 
N.  W.  74,  539.  Contra  Donnelly  v. 
People,  11  111.  552,  52  Am.  Dec.  459; 
Territory  v.  Lockwood,  3  Wall.  (U. 
S.)  236.  Compare  also  People  v.  Gar- 
tcnstein,  248  111.  546,  94  N.  E.  128. 
As  to  right  to  jury  trial,  see  State  v. 
Cobb,  24  Okla.  662,  104  Pac.  361,  24 
L.  R.  A.  (N.  S.)  639,  and  cases 
there   cited  \n  note. 


7d  actions  bv  and  against  corporations  §  742 

regulated  very  largely  by  statute.  The  proceeding  will  not  lie 
to  forfeit  the  charter  of  a  corporation  in  a  foreign  court/-'^  but- 
although  actions  to  recover  possession  of  real  estate  must  be 
brought  in  the  county  in  which  it  is  located,  quo  warranto  pro- 
ceedings for  usurping  the  franchise  of  being  a  corporation  and 
owning  and  using  land  in  one  county  for  railroad  purposes,  need 
not  necessarily  be  instituted  in  such  county.^^  Such  proceed- 
ings have  been  held  proper  both  to  determine  the  rights  of  in- 
dividuals to  corporate  franchises  and  to  determine  whether  fran- 
chises properly  granted  have  been  misused  and  forfeited,'^"  to 
try  the  right  of  a  foreign  corporation  to  do  business  in  the  state, ^^ 
and  to  determine  the  right  of  a  company  duly  incorporated  to 
exercise  a  particular  franchise.^*'  So,  under  a  statute  providing 
that  quo  warranto  proceedings  may  be  instituted  against  a  cor- 
poration "when  it  claims  a  franchise  privilege  or  right  in  con- 
travention of  law,  such  proceedings  will  lie  against  a  railroad 
company  to  contest  its  claim  to  exercise  a  right  or  privilege  in 
state  canal  lands. ^  Other  decisions  showing  when  quo  warranto 
will  or  will  not  lie  are  reviewed  elsewhere. ^  And  in  a  recent 
case  it  is  held  that  no  state  has  any  right  to  forfeit  the  franchise 
of  a  railroad  company  for  making  unlawful  charges  upon  traffic 
within  the  provisions  of  the  interstate  commerce  law,  and  that 
quo  warranto  will  not  lie  to  prevent  a  railroad  company  from 
making  unlawful  charges  for  services  where  the  matter  is  cov- 


95Ante,  §  66.  47  Ohio  St.  130,  23  N.  E.  928,  7  L. 

96  Smith  V.  State,  140  Ind.  343,  39  ^'^^  „^  ^  '  „.  ,  ..  „  „^  „ 
...  -^  ^^.r.  r,  T-  ,  T,.  -r.  A-  98  State  V.  Fidelity  &c.  Co.,  39 
N.  E.  1060.     See  Eel  River  R.  Co.  v:  ^^.         -,„     .,    ,,    ,,,    ,„„     o.  . 

C-.  .     !>.,  T  J   0-31    Ao  -Ki   X7   A^n    17  ,  Miuii.   538,  41    N.   W.    108;    State   v. 

State,  143  Ind.  231,  42  N.  E.  617 ;  Eel  ....    ^         e      c     -^     a-j  r\u-     Cf    i/;? 

'                        '           .rr  T   A    Ai-i  Western  &c.  Society,  47  Ohio  St.  167, 

River  R.  Co.  v.  State,   155  Ind.  433.  ^           g  ^   ^  ^   ^29. 

57  N.  E.  388.  ^^  ^      ,            ,,  .        ,         r        ic 

99  People    V.    Utica    Ins.     Co.,     15 

97  People  V.  Utica  Ins.  Co.,  15  Johns.  (N.  Y.)  353,  8  Am.  Dec.  243; 
Johns.  (N.  Y.)  353,  8  Am.  Dec.  243;  State  v.  Citizens  &c.  Assn.,  6  Mo. 
Petty  V.  Tooker,  21  N.  Y.  267;  State  App.  163.  See  also  State  v.  Business 
V.  Milwaukee  &c.  R.  Co.,  45  Wis.  Men's  Athletic  Club,  178  Mo.  App. 
579;  State  v.  Barron,  57  N.  H.  498.  548,  163  S.  W.  901. 

See  also  People  v.  Bleecker  St.  &c.  R.  i  State    v.    Pittsburgh    &c.    R.    Co., 

Co..  140  App.  Div.  611,  125  N.  Y.  S.  53  Ohio  St.  189.  41  N.  E.  205. 

1045;  State  v.  Cincinnati  &c.  R.  Co.,  ^See  ante,  §§  59-62. 


§742 


RAILROADS 


7^ 


cred  by  a  statute  which  provides  another  and  exckisive  remedy."' 
As  we  have  seen  the  proceedings  are  usually  instituted  on  l)eiialf 
of  the  state  by  the  attorney-general,  or-  in  some  jurisdictions,  by 
the  prosecuting  attorney,  but  in  most  jurisdictions,  private  per- 
sons having  an  interest  in  the  matter,  may  file  the  information, 
with  leave  of  the  court."*  There  is  some  difference  of  opinion  as 
to  whether  the  corporation  or  individuals  assuming  to  act  as  ihe 
corporation,  or  both^  should  be  made  defendants,  but  much  de- 
pends on  the  grounds  and  purpose  of  the  quo  warranto  proceed- 
ing. The  prevailing  rule  is  that  the  individuals  alone  are  neces- 
sary parties  where  the  proceeding  is  for  usurping  the  franchise 
to  be  a  corporation  as  distinguished  from  usurpation  of  a  power 
or  franchise  by  the  corporation,  and  that,  in  the  latter  case,  the 
corporation  alone  is  a  necessary  party. ^  In  some  jurisdictions 
the  defendant  must  either  disclaim  or  justify,  and  it  is  held  that 
a  plea  of  not  guilty  or  non  usurpavit  is  not  good,*^  but  in  others 
he  may  set  forth  as  many  defenses  as  he  may  have.'^  The  entire 
matter  is  largely  regulated  by  statute.  If  the  information  is 
insufficient  a  demurrer  would  seem  to  be  proper."^ 


•■!  State  V.  Atchison  &c.  R.  Co.,  176 
Mo.  687,  75  S.  W.  776,  63  L.  R.  A. 
761. 

•lAnd  it  is  held  that  the  attorney- 
general  cannot  maintain  a  quo  war- 
ranto proceeding  to  vindicate  or  re- 
dress merely  private  rights  or  griev- 
ances. State  V.  Atchison  &c.  R.  Co., 
176  Mo.  687,  75  S.  W.  776,  63  L.  R. 
A.  761. 

•'"'  .Armstrong  v.  State.  29  Okhi.  161, 
116  Pac.  770,  Ann.  Cas.  1913A,  565, 
570-574,  citing  and  reviewing  nu- 
merous  authorities. 

f>  Illinois  &c.  R.  Co.  v.  People.  84 
111.  426;  Burkman  v.  State.  34  Fla. 
48,  15  So.  697,  24  L.  R.  A.  806;  Dis- 
tilling &c.  Co.  v.  People,  156  111.  448, 
41  N.  E.  188,  47  L.  R.  A.  200;  State- 
V.  Utter.  14  N.  J.  L.  84;  State  v. 
Barron,  57  N.  H.  498  ;  Attorney-Gen- 
eral  v.      I'oote,    11   Wis.    14,  78   Am. 


Dec.  689.  See  also  People  v.  O'Con- 
nor, 239  111.  272,  87  N.  W.  1016;  State 
V.  Lincoln  Trac.  Co.,  90  Nebr.  535, 
134  N.  W.  278. 

7  State  V.  Brown,  34  Miss.  688; 
People  V.  Stratton,  28  Cal.  382 ;  Peo- 
ple V.  Plymouth  &c.  Co.,  31  Mich. 
178;  State  v.  McDaniel,  22  Ohio  St. 
354;  Rex  v.  Autridge,  8  T.  R.  467. 
.  ^  State  v.  Boal,  46  Mo.  528 ;  Com- 
monwealth v.  Commercial  Bank,  28 
Pa.  St.  383;  People  v.  Woodbury,  14 
Cal.  43;  Territory  v.  Lockwood,  3 
Wall.  (U.  S.)  2.36,  18  L.  ed.  47.  It 
is  held  in  a  rccL-nt  case  in  (ieorgia 
that  a  special  demurrer  will  not  suc- 
cessfully question  the  petition  alone 
where  its  defects  are  cured  by  the 
information  accompanying  it  and 
constituting  with  it  one  proceeding. 
Milton  v.  Mitchell,  139  Ga.  614,  11  S. 
E.  821. 


CHAPTER  XXVI. 


REMOVAL  OF   CAUSES. 


Sec.  Sec. 

745.  When    removal    is    authorized      755. 

— Statutes  now   in   force. 

746.  What  are  suits   of   a   civil   na- 

ture under  the  removal  acts.      756. 

747.  Parties. 

748.  Rights    of   removal   as   affected      757. 

by  amount  in  controversy. 

749.  Diverse       citizenship       as        a      758. 

ground    for    removal. 

750.  Separable  controversy.  759. 

751.  Action    against    company    and      760. 

employe. 

752.  Prejudice  or   local   influence   as 

a  ground  for  removal.  761. 

753.  Removal    where    federal    ques- 

tion is  involved. 

754.  Time    and    manner    of    making 

application    for   removal. 


Effect  of  application  on  juris- 
diction of  state  and  federal 
court. 

Remanding  and  dismissing 
cause. 

Remanding  —  Amendment  — 
Waiver. 

Pleading  and  practice  in  fed- 
eral court  after   removal. 

Recent   cases — Miscellaneous. 

Question  of  jurisdiction  where 
neither  party  resides  in  fed- 
eral   district— Waiver. 

Right  to  proceed  in  state 
court  after  dismissal  in  fed- 
eral  court. 


§  745  (645).  When  removal  is  authorized — Statutes  now  in 
force. — The  act  of  congress  of  March  3,  1911^  defines  the  juris- 
diction of  the  district  courts  of  the  United  States,  requiring  the 
amount  or  value  of  the  matter  in  dispute  to  exceed  three  thousand 
dollars,  and  provides  for  the  removal  froin  any  state  court  to  the 
district  court  of  the  United  States  for  the  proper  district  of  "any 
suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under  the  consti- 
tution or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  of  which  the  district  courts 
of  the  United  States  are  given  original  jurisdiction"  by  such 
act ;  that  any  other  suit  of  a  civil  nature,  of  which  the  district 
courts  arc  so  given  jurisdiction,  may  be  removed  from  any  state 


lAct  of  Mar.  3,   1911,  36  State  at 


L.  1091-1094;  Barnes'  Fed.  Code,  §§ 
785.  790.  794. 


§  "45  RAILROADS  78 

court  to  the  proper  circuit  court  by  the  defendant  or  defendants 
therein,  being  non-residents  of  that  state ;  that  when  in  any  suit 
of  any  of  the  classes  specified  there  shall  be  a  controversy  whjch 
is  wholly  between  citizens  of  different  states,  and  which  can  be 
fully  determined  as  between  them,  then  either  one  or  more  of 
the  defendants  actually  interested  in  such  controversy  may  re- 
move the  suit ;  that  suits  may  be  removed,  under  specified  cir- 
cumstances, on  account  of  prejudice  or  local  influence,  and  that 
suits  between  citizens  of  the  same  state  may  also  be  removed, 
under  certain  circumstances,  where  the  title  to  land  is  con- 
cerned and  they  claim  under  grants  from  different  states.  The 
act  of  March  3,  1887,  as  corrected  by  the  act  of  August  13,  1888, 
tended  to  restrict^  rather  than  to  extend  the  right  of  removal, 
as  given  by  previous  acts,  and  repealed  several  of  the  older  acts, 
although  it  left  some  of  them  still  in  force. ^  The  act  of  March  3, 
1911,  repeals  the  act  referred  to,  but  the  provisions  for  removal 
above  referred  to  are  the  same  in  both  acts,  except  that  the  dis- 
trict court  is  now  substituted  for  the  circuit  court  and  that  no 
case  under  the  Federal  Employers'  Liability  Act  shall  be  re- 
moved. The  provisions  found  in  sections  641  and  642  of  the  Re- 
vised Statutes  of  the  United  States  relating  to  suits  or  criminal 
prosecutions  "against  any  person  who  is  denied  or  cannot  enforce 

2  Hanrick  v.  Hanrick,  153  U.  S.  Chicago  &c.  R.  Co.,  33  Fed.  114; 
192,  197,  14  Sup.  Ct.  835,  38  L.  ed.  Whelan  v.  New.  York  &c.  R.  Co.,  35 
685;  Smith  v.  Lyon,  133  U.  S.  315,  Fed.  849;  Minnick  v.  Union  Ins.  Co., 
10  Sup.  Ct.  303,  33  L.  ed.  635;  40  Fed.  369.  But  see  Hills  v.  Rich- 
Pennsylvania  Co.,  In  re,  137  U.  S.  mond  &c.  R.  Co.,  33  Fed.  81 ;  Fisk 
451,  454,  11  Sup.  Ct.  141,  34  L.  ed.  v.  Henarie,  32  Fed.  417,  reversed  in 
738.  142  U.  S.  459,  12  Sup.  Ct.  207,  35  L. 

3It  expressly  repealed  §  640  Rev.  cd.  1080.  The  Federal  Employers' 
Stat.  U.  S.,  and  the  last  paragraph  Liability  Act,  as  amended  in  1910 
of  §  5  of  the  act  of  March  3,  1874,  provides  that  no  case  arising  there- 
and  all  laws  or  parts  of  laws  in  con-  under  brought  in  any  state  court  of 
flict  with  its  provisions,  l)ut  expressly  competent  jurisdiction  shall  be  re- 
provided  that  it  shall  not  be  deemed  moved  to  any  court  of  the  United 
to  repeal  §§641,  642.  643,  or  722,  of  States.  U.  S.  Comp.  Stat.  Supp.  1911, 
title  24,  Rev.  Stat.  U.  S..  or  §  8  of  p.  1324,  36  Stat,  at  L.  291.  ch.  143, 
the  act  of  March  3,  1875.  It  has  been  Barnes'  Fed.  Code,  §§  790,  8074, 
held  that  it  repealed  by  implication  and  this  prohibition  has  been  upheld 
the  act  of  Alarch  2,   1867.     Short  v.  in  a  number  of  cases.    Teel  v.  Chesa- 


79 


REMOVAL  OF  CAUSES 


§746 


in  the  judicial  tribunals  of  the  state  or  in  the  part  ot  the  state 
where  such  suit  or  prosecution  is  pending,  any  right  secured  to 
him  by  any  law  providing  for  equal  civil  rights  of  citizens  of  the 
United  States  or  of  all  persons  within  the  jurisdiction  of  the 
United  States  are  also  retained."  This  law  is  intended  to  carry 
out  the  provisions  of  the  Fourteenth  Amendment  to  the  United 
States  Constitution,*  and  is  directed  against  state  action  denying 
civil  rights.^ 

§746  (646).  What  are  suits  of  a  civil  nature  under  the  re- 
moval acts. — As  most  of  the  provisions  for  the  removal  of  causes 
authorize  the  removal  only  where  the  suit  is  of  a  civil  nature,  it 
is  important  to  determine  what  is  meant  by  the  term  "suit  of 
a  civil  nature."  It  has  been  held  that  an  action  to  recover  a 
penalty  for  the  violation  of  a  state  statute,  although  the  statute 
expressly  provides  that  the  penalty  shall  be  recovered  in  a  civil 
action,  is  essentially  criminal  in  its  nature  and  cannot  be  re- 
moved.^ So,  it  has  been  held  that  a  special  assessment  proceed- 
ing under  the  Illinois  law,  involving  the  exercise  of  the  taxing 


peake  &c.  R.  Co.,  204  Fed.  918,  47  L. 
R.  A.  (N.  S.)  21;  Kansas  City  &c. 
R.  Co.  V.  Leslie,  238  U.  S.  599,  35 
Sup.  Ct.  844;  Hulac  v.  Chicago  &c. 
R.  Co.,  194  Fed.  747;  Symonds  v. 
St.  Louis  &c.  R.  Co.,  192  Fed.  353, 
Jones  V.  Kansas  City  &c.  R.  Co.,  137 
La.  178,  68  So.  401,  note  in  47  L.,  R. 
A.  (N.  S.)  70-72,  citing  other  cases 
to  this  effect,  and  also  cases  holding 
that  it  is  a  personal  privilege  of  the 
plaintiff  which  may  be  waived  by 
him. 

■i  Strauder  v.  West  Virginia,  100 
U.  S.  303,  25  L.  ed.  664;  Virginia  v. 
Rives,  100  U.  S.  313,  25  L.  ed.  667. 

5  Alabama,  Ex  parte,  71  Ala.  363 ; 
Virginia  v.  Rives,  100  U.  S.  313,  25 
L.  ed.  667;  Neal  v.  Delaware,  103 
U.  S.  370,  26  L.  ed.  567;  State  v. 
Chue  Fan,  42  Fed.  865;  Cooper  v. 
State,  64  Aid.  40,  20  Atl.  986. 


6  Iowa  v.  Chicago  &c.  R.  Co.,  37 
Fed.  497 ;  Ferguson  v.  Ross,  38  Fed. 
161 ;  United  States  v.  Mexican  &c. 
R.  Co.,  40  Fed.  769 ;  Texas  v.  Day  &c. 
Co.,  41  Fed.  228.  See  also  Ames  v. 
Kansas,  111  U.  S.  449,  4  Sup.  Ct. 
437,  28  L.  ed.  482;  Boyd  v.  United 
States,  116  U.  S.  616,  6  Sup.  Ct.  524, 
29  L.  ed.  746;  Wisconsin  v.  Pelican 
Insurance  Co.,  127  U.  S.  265.  8  Sup. 
Ct.  1370,  32  L.  ed.  239;  Arkansas  v. 
St.  Louis  &c.  R.  Co.,  173  Fed.  572; 
Southern  R.  Co.  v.  State  (Ind.  App.), 
74  N.  E.  174 ;  Herriman  v.  Burling- 
ton &c.  R.  Co.,  57  Iowa  187,  9  N.  W. 
378,  10  N.  W.  340.  And  it  has  been 
so  held  as  to  a  suit  by  a  city  to  re- 
strain a  company  from  doing  busi- 
ness in  violation  of  a  city  ordinance 
requiring  a  license  and  prescribing  a 
fine.  City  of  Montgomery  v.  Postal 
Tel.  Co.,  218  Fed.  471. 


§  ^-Kj 


RAILROADS 


80 


power,  is  not  a  "suit"  within  the  meaning  of  the  removal  act  ;'^ 
nor  is  a  claim  for  a  right  of  way  pending-  before  the  board  of 
countv  commissioners.'^  But  it  seems  to  be  well  settled  that 
proceedings  to  determine  the  value  of  land  condemned  or  afifected 
l)y  a  taking  under  the  power  of  eminent  domain  may  be  removed 
in  a  proper  case.'^  So  mandamus,^"  habeas  corpus,^ ^  and  quo 
warranto'-  proceedings  have  been  held  to  come  within  the  mean- 
ing of  the  removal  acts.  Actions  in  ejectment,^-'  and  replevin,^* 
and  those  begun  by  attachments^  have  been  removed  under  for- 
mer acts;  but  it  has  been  held  that  a  suit  l)egun  by  foreign  at- 


"  Chicago,  In  re,  64  Fed.  897.  See 
and  compare  Union  Pacific  R.  Co.  v. 
Myers,  115  U.  S.  1,  5  Sup.  Ct.  1113. 
135  U.  S.  467,  10  Sup.  Ct.  651,  34  L. 
ed.  196,  and  Jarneckc  Ditch,  In  re, 
69  Fed.  161. 

s  Fuller  v.   Colfax,    14   Fed.    177. 

^  Mississippi  &c.  Boom  Co.  v.  Pat- 
terson, 98  U.  S.  403,  25  L.  ed.  206; 
Union  Pacific  R.  Co.  v.  Myers,  115 
U.  S.  1,  5  Sup.  Ct.  1113,  29  L.  ed. 
319:  Sear!  v.  School  Dist,  124  U.  S. 
197,  8  Sup.  Ct.  460.  31  L.  ed.  415; 
Chicago  V.  Hutchinson,  11  Biss.  (U. 
S.)  484.  15  Fed.  129;  Mineral  Range 
R.  Co.  V.  Detroit  &c.  Co.,  25  Fed. 
515;  Kansas  City  &c.  R.  Co.  v.  In- 
terstate Lumber  Co.,  37  Fed.  3.  See 
also  Aladisonville  Traction  Co.  v.  St. 
Bernard  &c.  Co.,  196  U.  S.  239,  25 
Sup.  Ct.  251,  49  L.  ed.  462,  South 
Dakota  &c.  R.  Co.  v.  Chicago  &c.  R. 
Co..  141  Fed.  578:  Helena  &c.  Co.  v. 
Spratt,  146  Fed.  310.  As  to  when  a 
separable  controversy  is  presented  in 
condemnation  proceedings,  see  post, 
§  750,  note  60. 

10  Kendall  v.  United  States,  12 
Pet.  (U.  S.)  524.  9  L.  ed.  1181  ; 
Washington  Imp.  Co.  v.  Kansas  Pac. 
R.  Co.,  5  Dill.  (U.  S.  C.  C.)  489, 
Fed.  Cas.  No.  17242.  See  also  People 


V.  Colorado  Cent.  R.  Co.,  42  Fed. 
638.  But  compare  Rosenbaum  v. 
Bauer,  120  U.  S.  450,  7  Sup.  Ct.  633, 
30  L.  ed.  743. 

11  Holmes  V.  Jcnnison,  14  Pet.  (U. 
S.)  540.  10  L.  ed.  579;  Milligan,  Ex 
parte,  4  Wall.  (U.  S.)  2,  18  L.  ed. 
281.  But  not,  it  seems,  under  the 
later  acts,  where  the  jurisdiction  de- 
pends on  the  value  of  the  matter  in 
dispute.  Kurtz  v.  Mofiitt,  115  U.  S. 
487.  6  Sup.  Ct.  148,  29  L.  ed.  458; 
Snow  V.  United  States,  118  U.  S. 
346,  354,  30  L.  ed.  207. 

12  Ames  V.  Kansas.  Ill  U.  S.  449, 
4  Sup.  Ct.  437.  28  L.  ed.  482;  Illinois 
V.   Illinois  Cent.  R.  Co.,  33  Fed.  721. 

I-'  Torrey  v.  Beardsly,  4  Wash.  (U. 
S.  C.  C.)  242;  Girard,  Ex  parte,  3 
W^ill.  Jr.  (U.  S.)  263,  Fed.  Cas.  No. 
5457. 

i-tBcecher  v.  Gillett,  1  Dill.  (U.  S. 
C.  C.)  308,  Fed.  Cas.  No.  1225;  Den- 
nistoun  v.  Draper.  5  Blatchf.  (U.  S.) 
336.  Fed.  Cas.  No.  3804. 

'•''Saylcs  V.  Northwestern  Ins.  Co., 
2  Curtis  (U.  S.)  212,  Fed.  Cas.  No. 
12421  ;  Barney  v.  Globe  Bank,  5 
Blatclif.  (U.  S.)  107,  Fed.  Cas.  No. 
1031 :  Keith  v.  Levi,  2  I'ed.  743.  But 
see  Bentlit  v.  London  &c.  Corp.,  44. 
l"ed.  667,  and  authorities  there  cited. 


81  REMOVAL  OF  CAUSES  §  746 

tachment,  without  personal  service,  cannot  be  removed  under 
tlie  last  act.^'''  It  is  said,  however,  in  another  case,  that  the  court 
in  the  decision  just  referred  to  erroneously  assumed  that  there 
was  no  distinction  in  this  regard  between  cases  originally 
brought  in  the  circuit  court  and  cases  removed  thereto,  and  that 
the  circuit  court  had  jurisdiction  of  the  suit  removed  after  the 
state  court  had  acquired  jurisdiction  by  foreign  attachment,  al- 
though there  was  no  personal  service.^'^  Many  years  ago  in  a 
case  in  which  it  was  held  that  a  proceeding  for  a  writ  of  prohi- 
bition was  a  "suit"  within  the  meaning  of  another  statute.  Chief 
Justice  Marshall  said :  "The  term  is  certainly  a  very  compre- 
hensive one,  and  is  understood  to  apply  to  any  proceeding  in  a 
court  of  justice  by  which  an  individual  pursues  that  remedy  in 
a  court  of  justice  which  the  law  affords  him.  The  modes  of 
proceeding  may  be  various,  but,  if  a  right  is  litigated  between 
parties  in  a  court  of  justice,  the  proceeding  by  which  the  decis- 
ion of  the  court  is  sought  is  a  suit."^^  The  mere  fact  that  a  bill 
or  petition  is  filed,  however,  without  having  any  process  issued 
or  giving  any  notice,  and  without  any  appearance  by  the  adverse 
party,  does  not  make  the  proceeding  a  "suit"  within  the  '  lean- 
ing of  the  removal  acts.^^  Neither  is  a  mere  auxiliary  pro- 
ceeding a  "suit"  within  the  meaning  of  such  acts.-"  j3ut  a 
proceeding  against  stockholders  to  obtain  an  execution  for  the 
amount  of  their  unpaid  stock,  under  the  Missouri  statute,  after 
a  return  of  nulla  l)ona  on  an  execution  against  the  corporation, 

ic  Perkins  v.  Hendryx.  40  Fed.  657.  Iowa  cSic.   Co.,   In  re,  3  AlcCrar.v   (U. 

17  Crocker    Xat.    Bank    v.    Pagen-  S.)  310,  10  Fed.  401. 
stecher.  44  Fed.   705.     See  also  Am-  i^o  Barow  v.  Hunton,  99  U.   S.  80. 

sinck    V.    Balderston,    41     Fed.    641;  25    L.    ed.    407;    First    Nat.    Bank    v. 

Fales  V.  Chicago  &c.  R.  Co.,  32  Fed.  Turnbull,    16  Wall.    (U.    S.)    190,  21 

673;  American  Finar.ce  Co.  v.  Bost-  L.  ed.  296;  Poole  v.  Thatcherdeft,  19 

wick,    151    Mc;s^    19,    23    N.    E.    656.  Fed.    49;    Hockstadter    v.    Harrison, 

But   compare   Bcntlif  v.   London   &c.  71    Ga.   21;    Goodrich  v.   Hunton,   29 

Corp.,    44    Fe-l.    667.    and    .'uithorities  La.   Ann.   372 ;   Jackson   v.   Gould,   74 

there   cited.  Maine  564;  Weeks  v.  Billings,  55  N. 

IS  Weston  V.  Charicstor.,  2  Pet.  (U.  H.   371;   Smith  v.   St.   Louis  &c.   Co., 

S.)  449,  464,  7  L.  cd.  481.  3  Tenn.  Ch.  350.     See  also  Lawrence 

If  See    West    v.    Aurora    City,    6  v.  Morgans  &c.  R.  Co.,  121  U.  S.  634, 

W::ll.    (U.    S.)    1.^9.    13    L.    ed.    819;  30  L.  ed.  1018. 


§747 


RAILROADS 


82 


has  been  held  to  be  a  "suit"  which  can  be  removed  by  the  stock- 
holders on  the  i^round  of  diverse  citizenship,  and  not  merely  a 
proceeding-  auxiliary  to  the  suit  against  the  corporation.-^ 

§  747  (647).  Parties. — One  who  is  not  a  party  to  a  cause  and 
refuses  to  become  a  party  of  record  is  not  entitled  to  have  the 
cause  removed,  although  he  may  be  interested  in  the  contro- 
versy.22  But  it  has  been  held,  under  former  acts,  that  parties 
properly  required  to  interplead,  or  having  a  statutory  right  to 
intervene,  which  they  have  attempted  to  exercise,  may  have  the 
cause  removed,  in  a  proper  case,  although  the  state  court  refused 
to  permit  them  to  intervene. ^^  Substituted  parties  generally 
stand  in  the  same  position,  with  regard  to  the  right  of  removal, 
as  those  whose  place  they  take.-^  It  is  well  settled  that  *^he  light 
of  removal  can  neither  be  obtained  nor  prevented  by  joining 
merelv  nominal  or  improper  parties  for  that  purpose. ^^     It  is  not 


-1  Lackawanna  &c.  Co.  v.  Bates, 
56  Fed.  TZl,  overruling  Webber  v. 
Humphreys,  5  Dill.  (U.  S.)  223,  Fed. 
Cas.  No.  17326.  See  also  Bondurant 
V.  Watson,  103  U.  S.  281,  26  L.  ed. 
447 ;  Pettus  v.  Georgia  R.  &c.  Co., 
3  Woods  (U.  S.)  620,  Fed.  Cas.  No. 
11048;  Pelzer  &c.  Co.  v.  Hamburg 
&c.  In.s.  Co.,  62  Fed.  1 ;  Kalamazoo 
&c.  Co.  V.  Snavely,  34  Fed.  823. 

~~  Bertha  Zinc  &c.  Co.  v.  Carico, 
61   Fed.   132. 

23  Snow  V.  Texas  &c.  R.  Co.,  16 
Fed.  1 ;  Hack  v.  Chicago  &c.  R.  Co., 

23  Fed.  356;  Healy  v.  Prevost,  8  The 
Rep.  103.  See  also  Burdick  v.  Peter- 
son, 2  McCrary  (U.  S.)  135,  6  Fed. 
840.     Contra,  Williams  v.  Williams, 

24  La.  Ann.  55.  See  also  Olds 
Wagon  Works  v.  Benedict,  67  Fed. 
1. 

24  Richmond  &c.  R.  Co.  v.  Find- 
ley,  32  Fed.  641;  Cable  v.  Ellis,  110 
U.  S.  389,  4  Sup.  Ct.  85,  28  L.  ed. 
186;   Jefferson  v.   Driver,    117   U.    S. 


272,  6  Sup.  Ct.  729,  29  L.  ed.  897; 
Houston  &c.  R.  Co.  v.  Shirley,  111 
U.  S.  358,  4  Sup.  Ct.  472,  28  L.  ed. 
455 ;  Grand  Trunk  R.  Co.  v. 
Twitchell,  59  Fed.  727. 

25  Hatch  V.  Chicago  &c.  R.  Co.,  6 
Blatchf.  (U.  S.)  105,  Fed.  Cas.  No. 
6204;  Carneal  v.  Banks.  10  Wheat. 
(U.  S.)  181,  6  L.  ed.  297;  Barney  v. 
Latham,  103  U.  S.  205.  26  L.  ed.  514; 
Bates  V.  New  Orleans  &c.  R.  Co.,  16 
Fed.  294;  Chattanooga  &c.  R.  Co.  v. 
Cincinnati  &c.  R.  Co.  44  Fed.  456; 
Powers  V.  Chesapeake  &c.  R.  Co.,  65 
Fed.  129;  Axline  v.  Toledo  &c.  R. 
Co.,  138  Fed.  169;  Worstman  v. 
Wade.  11  Ga.  651,  4  Am.  St.  102; 
Danvers  Sav.  Bank  v.  Thompson, 
133  Mass.  182;  United  States  v. 
Douglas,  113  N.  Car.  190,  18  S.  E. 
202.  See  and  compare  Merchants' 
&c.  Co.  V.  Ins.  Co.,  151  U.  S.  368, 
14  Sup.  Ct.  367,  38  L.  ed.  195;  Ar- 
rowsmith  v.  Nashville  &c.  R.  Co.,  57 
Fed.  165;  Springer  v.  Sheets,  115  N. 


83 


REMOVAL    OF    CAUSES 


§747 


always  easy  to  determine,  however,  who  arc  merely  nominal 
parties  and  who  are  necessary  parties  actually  interested  as  such 
in  the  controversy.^*^  It  has  been  held  that  the  voluntary  joinder 
of  a  number  of  complainants  to  enforce  a  common  liability  of 
the  defendants  has  the  same  effect  on  the  right  of  removal  on 
the  ground  of  diverse  citizenship  as  if  they  had  been  compelled 
to  unite. 2'^  But  the  court,  for  the  purpose  of  determining  the 
right  of  removal,  will  arrange  the  parties  as  plaintiffs  or  defend- 
ants according  to  their  actual  interest  in  the  controversy,-^  and 
if  parties  are  collusively  joined  for  the  mere  purpose  of  effecting 
a  removal,  the  petition  may  be  refused,-^  or  if  the  cause  has  al- 
ready been   removed    the   court   may   remand   it.^°      So,   on   the 


Car.  370,  20  S.  E.  469.  See  also 
Richardson  v.  Southern  Idaho  &c. 
Co.,  209  Fed.  949;  McAllister  v. 
Chesapeake  &c.  R.  Co.,  198  Fed.  660. 
26  As  to  who  are  actually  inter- 
ested and  not  mere  nominal  parties, 
see  Knapp  v.  Railroad  Co.,  20  Wall. 
(U.  S.  117,  22  L.  ed.  328;  Alyers  v. 
Swann,  107  U.  S.  546,  2  Sup.  Ct.'685, 
27  L.  ed.  583 ;  Thayer  v.  Life  Assn., 

112  U.  S.  717,  5  Sup.  Ct.  355,  28  L. 
ed.  864;  Central  R.  Co.  v.  Mills,  113 
U.  S.  249,  5  Sup.  Ct.  456,  28  L.  ed.. 
949;    Chicago    &c.    R.    Co.    v.    Crane, 

113  U.  S.  424,  28  L.  ed.  1064;  St. 
Louis  &c.  R.  Co.  V.  Wilson,  114  U.  S. 
60,  5  Sup.  Ct.  738,  29  L.  ed.  66 ;  Mer- 
chants' &c.  Co.  V.  Insurance  Co.,  151 
U.  S.  368,  14  Sup.  Ct.  367,  38  L.  ed. 
195 ;  Wilson  v.  Oswego  Twp.,  151  U, 
S.  56,  14  Sup.  Ct.  259,  38  L.  ed.  70; 
Miller  v.  Sharp.  2,1  Fed.  161 ;  Fox  v. 
Mackay,  60  Fed.  4 ;  Douglas  v.  Rich- 
mond &c.  R.  Co..  106  N.  Car.  65, 
10  S.  E.  1048.  As  to  who  are  merely 
nominal  parties,  see  Hatch  v.  Chi- 
cago &c.  R.  Co.,  6  Blatchf.  (U.  S.) 
105,  F"ed.  Cas.  No.  6204 ;  Arapahoe 
Co.   V.    Kansas    Pac.    R.    Co.,   4   Dili. 


(U.  S.)  277,  Fed.  Cas.  No.  502; 
Bacon  v.  Rives,  106  U.  S.  99,  1  Sup. 
Ct.  3.  27  L.  ed.  69;  Bates  v.  New 
Orleans  &c.  R.  Co.,  16  Fed.  294; 
Taylor  Co.  v.  Baltimore  &c.  R.  Co., 
35  Fed.  161 ;  Over  v.  Lake  Erie  &c. 
R.  Co.,  63  Fed.  34;  Shattuck  v. 
North  British  &c.  Ins.  Co.,  58  Fed. 
609. 

2  7  Merchants'  &c.  Co.  v.  Insurance 
Co.,  151  U.  S.  368,  14  Sup.  Ct.  367, 
38  L.  ed.  195 ;  Corporation  v.  Winter, 
1  Wheat.   (U.  S.)  91,  4  L.  ed.  476. 

28Harter  v.  Kernochan,  103  U.  S. 
562,  26  L.  ed.  411;  Ayers  v.  Chicago, 
101  U.  S.  184,  25  L.  ed.  838;  Ander- 
son V.  Bowers,  40  Fed.  708.  But  see 
Springer  v.  Sheets,  115  N.  Car.  370, 
20  S.  E.  469. 

2  9  Cashman  v.  Amador  &c.  Co., 
118  U.  S.  58,  6  Sup.  Ct.  926,  30  L. 
ed.  72;  Sachse  v.  Citizens'  Bank,  Zl 
La.  Ann.  364.  See  also  Clark  v.  Chi- 
cago &c.  R.  Co.,  194  Fed.  505;  Lan- 
ders V.  Cincinnati  &c.  R.  Co.,  156  Ky. 
301,  160  S.  W..1050. 

•■:'^  Williams  v.  Nottowa.  104  U.  S. 
209,  26  L.  ed.  719;  Little  v.  Giles. 
118  U.  S.  596,  7  Sup.  Ct.  32.  30  L.  ed. 


§748 


RAILROADS 


84 


Other  hand,  it  has  been  held  that  where  a  plaintiff  makes  a  party 
a  co-defendant  for  the  purpose  of  preventing  a  removal,  and, 
after  the  time  for  removal  is  past,  dismisses  as  to  such  party,  the 
cause  may,  nevertheless,  be  removed  upon  proper  application  by 
a  party  entitled  to  such  removal. ^^ 

§  748  (648).  Right  of  removal  as  affected  by  amount  in  con- 
troversy.— The  value  of  the  matter  in  dispute  must  exceed  two 
thousand  dollars,  exclusive  of  interest  and  costs.  It  is  not  suf- 
ficient that  its  value  is  exactly  two  thousand  dollars. ••-  Thus, 
where  the  prayer  for  relief  in  the  complaint  asked  for  "two  thou- 
sand dollars  and  all  other  proper  relief,"  and,  under  the  pleadings, 
no  other  proper  relief  could  be  obtained,  it  was  held  that  the 
cause  could  not  be  removed.-''^  The  amount  is  to  be  determined 
from  the  complaint,  declaration  or  bill,^'^  and  it  seems  that  if  the 


269.  But  see  Deputron  v.  Young, 
134  U.  S.  241.  10  Sup.  Ct.  539,  33  L. 
ed.  923. 

31  Powers  V.  Chesapeake  &c.  R. 
Co.,  65  Fed.  129;  Arrowsmith  v. 
Nashville  &c.  R.  Co.,  57  Fed.  165. 
But  see  Provident  &c.  Society  v. 
Ford.  114  U.  S.  635,  5  Sup.  Ct.  1104, 
29  L.  cd.  261;  Lathrop  &c.  Co.  v. 
Interior  Const.  &c.  Co..  215  U.  S. 
246,  30  Sup.  Ct.  76,  54  L.  ed.  177 ;  Vi- 
mont  V.  Chicago  &c.  R.  Co.,  64  Iowa 
513,  17  N.  W.  31.  21  N.  W.  9. 

32  Tod  V.  Cleveland  &c.  R.  Co.,  65 
I'ed.  145;  Baltimore  v.  Postal  Tel. 
Co.,  62  Fed.  500;  Pittsburgh  &c.  R. 
Co.  v.  Ramsey,  22  Wall.  (U.  S.)  322, 
22  L.  cd.  823;  Walker  v.  United 
States,  4  Wall.  (U.  S.)  163.  18  L. 
ed.  319.  See  also  Kaufman  v.  I. 
Rheinstrom  Sons  Co.,  188  Fed.  544. 
Compare  Weber  v.  Travelers'  Ins. 
Co.,  45  Fed.  657. 

33  Baltimore  &c.  R.  Co.  v.  Wor- 
man,  12  Ind.  App.  494,  40  N.  E. 
751.     See  also  Barber  v.  Boston  &c. 


R.  Co.,  145  Fed.  52.  But  where  other 
relief  may  be  obtained  and  the  value 
of  the  matter  in  dispute  exceeds  two 
thousand  dollars  the  cause  may  be 
removed  althougli  the  money  judg- 
ment demanded  is  less  than  that 
sum.  Dickinson  v.  Unicm  S:c.  Co., 
64  Fed.  895. 

3^  Yarde  v.  Baltimore  &c.  R.  Co., 
57  I'ed.  913;  Gordon  v.  Longest,  16 
Pet.  (U.  S.)  97,  10  L.  ed.  900;  West- 
ern Union  Tel.  Co.  v.  Levi,  47  Ind. 
552.  And  not  from  mere  assertions 
as  to  the  amount  in  the  petition  for 
removal.  Bacon  v.  Iowa  Cent.  R. 
Co.,  157  Iowa  493,  137  X.  W.  1011. 
But  amount  stated  in  affidavit  for  at- 
tachment rather  than  in  ad  dominion 
of  complaint  has  been  held  to  con- 
trol. Starke  v.  Hoerning,  206  Fed. 
1006.  In  an  action  in  tort  the  amount 
of  damages  claimed  by  the  plaintiff 
is  the  value  of  the  matter  in  dispute. 
Gordon  v.  Longest,  16  Pet.  (U.  S.) 
97.  10  L.  ed.  900;  Western  Union 
Tel.  Co.  V.  Levi,  47  Ind.  552;  Louis- 


85 


REMOVAL    OF    CAUSES 


§749 


amount,  as  so  determined,  is  insufficient,  the  filing  of  a  counter- 
claim by  the  defendant  exceeding  that  amount  does  not  entitle 
him  to  remove  the  suit.-"-''  This  rule,  if  it  can  be  sustained  at  all 
as  a  general  rule,  must  be  placed  upon  the  ground  that  the  de- 
fendant, having  voluntarily  submitted  his  claim  to  the  state  court 
as  a  plaintiff  in  the  cross-complaint,  cannot  for  that  reason  take 
advantage  of  his  own  act  and  remove  the  suit  which  could  not 
otherwise  have  been  removed  by  him.  The  jurisdictional  amount 
may  be  made  up  of  several  distinct  claims  exceeding  two  thou- 
sand dollars  in  the  aggregate.^^ 

§  749  (649).  Diverse  citizenship  as  a  ground  for  removal. — 
W'e  have  already  called  attention  to  the  provisions  of  the  re- 
moval acts  in  regard  to  removals  on  the  ground  of  diverse  cit- 
izenship.^" A  corporation,  as  we  have  elsewhere  shown, '"'^  is  re- 
garded as  a  citizen  of  the  state  in  wdiich  it  was  incorporated, 
within    the    meaning    of    these    acts.'"^^      The    citizenship    of    the 


ville  &c.  R.  Co.  V.  Roehling,  11  111. 
App.  264;  Chicago  &c.  R.  Co.  v. 
Stone,  70  Kans.  708,  79  Pac.  655.  It 
is  also  held  in  the  case  last  cited 
that  the  removal  cannot  he  defeated 
by  amendment  reducing  the  amount 
after  a  sufficient  petition  and  bond 
have  been  filed.  But  it  is  held  other- 
wise wher^  the  amendment  is  before 
the  filing  of  the  petition  and  bond. 
Collins  V.  Twin  Falls  &c.  Co..  204 
Fed.  134;  Lake  Erie  &c.  R.  Co.  v. 
Huffman,  177  Ind.  126,  97  N.  E.  434, 
.^nn.  Cas.  1914C,  1272.  See  generally 
Stephens  v.  St.  Louis  &c.  R.  Co.,  47 
Fed.  530.  14  L.  R.  A.  184;  Hayward 
V.  Nordberg  Mfg.  Co.,  85  Fed.  4. 

'•'^^  Bennett  v.  Devine,  45  Fed.  705 ; 
La  Montagne  v.  T.  W.  Harvey  Lum- 
ber Co..  44  Fed.  645 ;  Falls  Wire  &c. 
Co.  V.  Broderick,  2  McCrary  (U.  S.) 
489.  6  Fed.  654.  Contra,  Clarkson  v. 
Marson.  18  Blatchf.  (U.  S  )  443. 
4  Fed.  257;   Carson  &c.  Lumber  Co. 


V.  Holtzclaw,  39  Fed.  578.  Whether 
the  amount  of  a  counterclaim  may  be 
added  to  plaintiff's  claim  so  as  to 
give  the  court  jurisdiction  is  said  to 
be  so  doubtful  under  the  authorities 
as  to  require  the  court  to  decline 
jurisdiction.  Crane  Co.  v.  Guanica 
Centrale,    132    Fed.    713. 

yc  Marshall  v.  Holmes,  141  U.  S. 
539,  12  Sup.  Ct.  62,  35  L.  ed.  870; 
Bernheim  v.  Birnbaum  30  Fed.  885. 
See  also  Brown  v.  Trousdale,  138 
U.  S.  389,  34  L.  ed.  987. 

37  Ante,  §  745. 

38  Ante,  §  32. 

39  "Federal  Jurisdiction  of  Corpo- 
rations as  Citizens,"  36  Cent.  L.  J. 
333;  Marshall  v.  Baltimore  &c.  R. 
Co..  16  How.  (U.  S.)  314,  14  L.  ed. 
953 ;  Rundle  v.  Delaware  &-c.  Canal 
Co.,  14  How.  (U.  S.)  80,  14  L.  ed. 
335;  Railwaj'  Co.  v.  Whitton,  13 
Wall.  (U.  S.)  270.  20  L.  ed.  571; 
Louisville     &c.     R.     Co.     v.     Letson. 


§749 


RAILROADS 


86 


Stockholders  is  immaterial.'*"^  But  a  state  itself  is  not  a  citizen 
of  any  state,  and  where  it  is  the  real  party  in  interest,  as  "n  case 
of  a  prosecution  in  its  name  on  the  relation  of  a  prosecuting- 
attorney,  to  recover  a  statutory  penalty,  there  can  be  no  re- 
moval on  the  sole  ground  of  diverse  citizenship.'*^  We  have 
also  shown  that  no  state  can  deprive  a  foreign  corporation  of 
the  right  of  removal  given  by  congress. ^^  3^^  a  corporation  may 
be  adopted  so  as  to  become  a  domestic  corporation  and  a  citizen 
of  the  state  adopting  it,^^  or  it  may  be  formed  by  concurrent 


2  How.  (U.  S.)  497.  11  L.  ed. 
193;  Ohio  &c.  R.  Co.  v.  Wheeler, 
1  Black  (U.  S.)  286,  17  L.  ed.  130; 
Bonaparte  v.  Camden  &c.  R.  Co., 
Bald.  (U.  S.)  205,  Fed.  Cas.  No. 
1617;  Boom  Co.  v.  Patterson,  98 
U.  S.  403,  25  L.  ed.  206;  Stone  v. 
Chicago  &c.  R.  Co.,  195  Fed.  832; 
Western  Union  Tel.  Co.  v.  Dickin- 
son, 40  Ind.  444,  13  Am.  Rep.  295; 
Stanley  v.  Chicago  &c.  R.  Co.,  62 
Mo.  508;  Quigley  v.  Cent.  Pacific 
R.  Co..  11  Nev.  350,  21  Am.  Rep. 
757.  The  citizenship  of  a  corpora- 
tion is  sufficiently  disclosed  bj'^  an 
allegation  that  it  is  a  corporation 
■duly  organized  under  the  laws  of 
New  York.  Dodge  v.  Tulleys,  144 
U.  S.  451,  12  Sup.  Ct.  728,  Z6  L. 
<;d.  501.  See  also  Robertson  v.  Scot- 
tish &c.  Ins.  Co.,  68  Fed.  173.  But 
n  mere  general  conclusion  that  it  is  a 
citizen  of  a  certain  state  has  been 
held  insufficient.  Lafayette  Ins.  Co. 
V.  French,  18  How.  (U.  S.)  404,  405. 
15  L.  ed.  340;  Chicago  &c.  Ry.  Co. 
V.  Stephens,  218  Fed.  535. 

40  Baltimore  &c.  R.  Co.  v.  Cary, 
28  Ohio  St.  208;  Quigley  v.  Central 
R.  Co.  11  Nev.  350.  21  Am.  Rep. 
757;  Pomeroy  v.  New  York  &c.  R. 
Co..  4  Blatch.   (U.  S.)   120,  Fed.  Cas. 


No.  11261;  Hatch  v.  Chicago  &c.  R. 
Co.,  6  Blatch.  (U.  S.)  105,  Fed.  Cas. 
No.  6204;  Minnett  v.  Milwaukee  &c. 
R.  Co.,  3  Dill.  (U.  S.)  460,  Fed.  Cas. 
No.  9636.  See  also  as  to  agent  or 
trustee  whose  authority  is  revocable. 
Bogue  V.  Chicago  &c  R.  Co.,  193  Fed. 
728. 

41  Southern  R.  Co.  v.  State,  165 
Ind.  613.  75  N.  E.  272. 

42  "Federal  Jurisdiction  of  Corpo- 
ration as  Citizens,"  36  Cent.  L.  J. 
2)2)Z ;  Southern  Pac.  Co.  v.  Denton, 
146  U.  S.  202,  13  Sup.  Ct.  44,  36  L. 
ed.  943.  See  also  Herndon  v.  Chi- 
cago &c.  R.  Co.,  218  U.  S.  135,  30 
Sup.  Ct.  633,  54  L.  ed.  970.  But  com- 
pare as  to  provision  that  it  shall  no 
longer  do  business  in  the  state  if  it 
removes  causes  without  consent. 
State  V.  Louisville  &c.  R  Co.,  97 
Miss.  35,  51  So.  918,  53  So.  454,  Ann. 
Cas.  1912C,  1150;  Security  &c.  Inc. 
Co.  V.  Prcwitt,  202  U.  S.  246,  26  Sup. 
Ct.  619.  50  L.  ed.  1013  (decided  by 
a  divided  court  and  distinguished 
and  qualified  to  some  e.xtent  in  later 
decisions).    Ante.  §  32. 

43  Ante,  §  32.  We  do  not  mean, 
however,  that  the  mere  adoption  or 
naturalization  of  a  corporation  of 
another  state  will  necessarily  deprive 


87 


REMOVAL    OF    CAUSES 


§749 


legislation  of  two  or  more  states  or  consolidated  under  their 
laws  so  as  to  become  a  citizen  of  each.-**  The  mere  fact,  how- 
ever, that  it  carries  on  business,  or  is  authorized  to  carry  on 
business  or  hold  property  in  another  state  than  that  in  which 
it  is  incorporated,  does  not  make  it  a  citizen  of  such  other  sci!tc.^'' 
Neither  does  a  state  statute  requiring  a  foreign  corporation  to 
have  an  agent  in  the  state,  upon  whom  process  can  be  served, 
make  it  a  citizen  of  that  state. •**^  And  it  is  stated  as  a  general 
proposition  that,  for  purposes  of  the  jurisdiction  of  federal  courts 
a  corporation  remains  a  citizen  of  the  state  by  which  it  was  cre- 
ated, although  it  is  afterwards  also  made  a  corporation  of  another 
state. ■*'^     As  the  jurisdictional  clause  of  the  removal  act  refers 


it  of  its  right  to  sue  or  be  sued  in 
the  federal  courts  as  a  citizen  of  an- 
other state. 

•i4Ante,  §§35,  38.  See  Colglazier 
V.  Louisville  &c.  R.  Co.,  22  Fed.  568 ; 
Wasley  v.  Chicago  &c.  R.  Co.,  147 
Fed.  608  (and  cannot  remove  an  ac- 
tion brought  in  either  on  the  ground 
of  diverse  citizenship)  ;  Uphoff  v. 
Chicago  &c.  R.  Co.,  5  Fed.  545,  and 
compare  Nashua  &c.  R.  Co.  v.  Bos- 
ton &c.  R.  Co.,  136  U.  S.  356,  10 
Sup.  Ct.  1004,  34  L.  ed.  363,  with  Pa- 
cific R.  Co.  V.  Missouri  Pac.  R.  Co., 
23  Fed.  565,  20  Am.  &  Eng.  R.  Cas. 
590.  See  also  Oregon  Short  Line 
&c.  R.  Co.  V.  Skottowe,  162  U.  S. 
490,  16  Sup.  Ct.  869,  40  L.  ed.  1048; 
Walters  v.  Chicago  &c.  R.  Co.,  186 
U.  S.  479,  22  Sup.  Ct.  941,  46  L.  ed. 
1266;  Paul  v.  Baltimore  &c.  R.  Co., 
44  Fed.  513;  Fitgerald  v.  Missouri 
Pac.  R.  Co.,  45  Fed.  812. 

45  Baltimore  &c.  R.  Co.  v.  Kountz, 
104  U.  S.  5,  26  L.  ed.  643;  Pennsyl- 
vania Co.  v.  St.  Louis  &c.  R.  Co., 
118  U.  S.  290,  6  Sup.  Ct.  1094,  30  L. 
ed.  83;  Martin  v.  Baltimore  &c.  R. 
Co..  151  U.  S.  673.  14  Sup.  Ct.  533, 
38  L.  ed.  313;    Guinn  v.   Iowa   Cent. 


R.  Co.  14  Fed.  323 ;  Conn  v.  Chicago 
&c.  R.  Co.,  48  Fed.  177;  Holden  v. 
Putnam  &c.  Ins.  Co.,  46  N.  Y.  1,  7 
Am.  Rep.  287;  Baltimore  &c.  R.  Co. 
v.  Cary,  28  Ohio  St.  208;  Allegheny 
Co.  V.  Cleveland  &c.  R.  Co.,  51  Pa. 
St.  228;  Baltimore  &c.  R.  Co.  v. 
Wightman,  29  Grat.    (Va.)    431. 

•*«  Martin  v.  Baltimore  &c.  R.  Co., 
151  U.  S.  673,  14  Sup.  Ct.  533,  38  L. 
ed.  313;  Chicago  &c.  R.  Co.  v.  Min- 
nesota &c.  R.  Co.,  29  Fed.  227;  Fales 
v.  Chicago  &c.  R.  Co.,  32  Fed.  673; 
Amsden  v.  Norwich  &c.  Ins.  Co.,  44 
Fed.  515;  Western  Un.  Tel.  Co.  v. 
Dickinson,  40  Ind.  444,  13  Am.  Rep. 
295;  Morton  v.  Alutual  &c.  Ins.  Co., 
105  Mass.  141,  7  Am.  Rep.  505.  But 
see  Scott  v.  Texas  &c.  Co.,  41  Fed. 
225. 

47  Louisville  &c.  R.  Co.  v.  Louis- 
ville Trust  Co.,  174  U.  S.  552,  12 
Sup.  Ct.  817,  43  L.  ed.  1081 ;  St.  Louis-. 
&c.  R.  Co.  V.  James,  161  U.  S.  545, 
16  Sup.  Ct.  621,  40  L.  ed.  802.  See> 
also  Hollingsworth  v.  Southern  R-. 
Co.,  86  Fed.  351 ;  Missouri  Pac.  Ry. 
Co.  V.  Castle,  224  U.  S.  541,  32  Sup, 
Ct.  606,  56  L.  ed.  875. 


§749 


RAILROADS 


88 


to  citizens  and  not  merely  to  residents  of  different  states,  the 
petition  for  removal  on  the  ground  of  diverse  citizenship  should 
show  that  the  controversy  is  between  citizens  of  different  states. 
and  not  merely  that  the  defendant  is  a  non-resident  or  a  resident 
of  a  different  state  from  the  plaintiff.^'*  It  has  been  strongly 
urged  that  within  the  meaning  of  the  last  removal  act,  a  cor- 
pt)ration  can  only  remoAe  a  cause  to  the  federal  court  where  it  is 
a  resident  as  well  as  a  citizen  of  another  state.'*'*  But  it  is  now 
well  settled  by  judicial  decision  that  in  order  to  be  a  "non-resi- 
dent of  the  state"'  in  which  suit  is  brought  within  the  meaning 
of  this  act,  the  defendant  need  only  be  a  corporation  created  l)y 
the  laws  of  another  state.'''-  Although  there  is  considerable  con- 
flict among  the  decisions  of  the  different  circuit  courts  of  the 
United  States,  as  well  as  among  the  decisions  of  the  various  state 
courts,  it  now  seems  to  be  well  settled  by  the  decisions  of  the 
Supreme  Court  of  the  United  States,  as  well  as  by  the  weight  of 
authority  generally,  that  the  requisite  diversity  of  citizenship 
must  exist  not  only  at  the  time  the  petition  for  removal  is  filed, 
but  also  at  the  time  the  suit  is  commenced. ^^     But  it  has  been 


•18  Mansfield  &c.  R.  Go.  v.  Swan, 
111  U.  S.  379,  4  Sup.  Ct.  510,  28  L. 
ed.  462;  Chicago  &c.  R.  Co.  v.  Ohle, 
117  U.  S.  123,  6  Sup.  Ct.  632,  29  L. 
ed.  837;  Pennsylvania  Co.  v.  Ben- 
der 148  U.  S.  255,  13  Sup.  Ct.  591, 
}>1  L.  ed.  441  :  Ncel  v.  Pennsylvania 
Co.,  157  U.  S.  153,  15  Sup.  Ct.  589, 
39  L.  ed.  654;  Mexican  Cent.  R.  Co. 
V.  Duthie,  189  U.  S.  l(i,  23  Sup.  Ct. 
610.  47  L.  ed.  715;  Brown  v.  Keene, 
8  Pet.  (U.  S.)  112,  8  L.  ed.  885; 
Kmsas  City  So.  K.  Co.  v.  Prunty. 
133  Fed.   13. 

^^  Residence  of  corporations  under 
the  removal  act,  by  Cliarles  R. 
Pence.  35  Cent.  L.  J.  285. 

^^  Martin  v.  Baltimore  &c.  R.  Co., 
151  U.  S.  673,  676,  14  Sup.  Ct.  533, 
.38  L.  ed.  313:  l''ales  v.  Chicago  &c. 
Co.,  32  Fed.  673 ;   Henning  v.  West- 


ern Union  Tel.  Co.,  43  Fed.  97;  Rob- 
ertson V.  Scottish  &c.  Ins.  Co.,  68 
Fed.  173.  The  receiver  of  a  rail- 
road company,  being  a  citizen  of  an- 
other state,  may  remove  an  action 
lirought  against  him  in  Iiis  official 
capacity  for  death  by  wrongful  act, 
thi)Ugh  the  railro,id  company  is  a 
citizen  of  the  state  in  which  the  ac- 
tinn  is  brought.  Brisendcn  v.  Cham- 
lierlain,   53   I'cd.   2)^1. 

•"'1  La  Confiancc  &c.  v.  Hall,  137 
U.  S.  61,  11  Sup.  Ct.  5,  34  U  cd. 
573  ;  Crehore  v.  Railroad  Co.,  131  U. 
S.  2-10,  9  Sup.  Ct.  692,  Z2,  L.  ed.  144. 
Stevens  v.  Nichols,  130  U.  S.  230, 
9  Sup.  Ct.  .=^18,  32  L.  ed.  914;  Indi- 
anapolis &c.  R.  Co.  v.  Risley.  50  Ind. 
60;  Bhickwell  v.  Lynchburg  &c.  R. 
O...  107  N.  Car.  217.  12  S.  F.  1.33. 
See  also  Laird  v.  Connecticut  &c.  R. 


89  REMOVAL    OF    CAUSES  §  750 

held  in  a  comparatively  recent  case,  contrary  to  the  rule  which 
prevails  where  the  removal  is  sought  upon  the  ground  of  a  fed- 
eral question  or  where  the  question  is  as  to  a  separable  contro- 
versy, that  the  diverse  citizenship  may  be  shown  in  the  petition 
for  removal  and  that  it  need  not  appear  in  the  complaint. •'"'^  So, 
it  is  said  in  distinguishing  the  question  of  diverse  citizenship 
from  the  ordinary  case  of  a  federal  question  that  "it  is  obvious 
that  in  the  instance  of  diverse  citizenship  a  different  question  is 
presented.  PlaintiiT  may  run  his  own  risk  in  respect  of  the 
cause  of  action  on  which  he  proceeds  but  he  cannot  cut  off  de- 
fendant's constitutional  right  as  a  citizen  of  a  different  state 
than  the  plaintiff  to  choose  a  federal  forum,  b}'  omitting  to  aver 
or  mistakenly  or  falsely  stating  the  citizenship  of  the  parties. 
And  this  must  be  so  also  as  to  federal  railroad  corporations."^-" 

§  750  (650).  Separable  controversy. — The  latest  act  upon  the 
subject  of  the  removal  of  causes  restricts  the  right  of  removal 
where  there  is  a  separable  controversy,  which  was  formerly 
given  to  one  or  more  of  the  plaintiffs  or  defendants,  to  "one  or 
more  of  the  defendants  actually  interested  in  such  controversy;" 
but  the  decisions  as  to  what  is  a  separate  controversy  apply 
ecjually  well  to  both  acts.  This  separable  controversy  must  be 
wholly  between  citizens  of  different  states  and  must  also  be  such 
as  can  be  fully  determined  as  between  them  ;"'^  but  it  need  not  be 

Co.,  55  N.  H.  375.  20  Am.  Rep.  215;  tion.     Helena  &c.   Co.  v.   Spratt,   146 

Macey   Co.  v.    Macej',   135   Fed.   725.  Fed.  310;  Aladisonville  Traction  Co. 

But  this  rule  seems  to  have  been  re-  v.    .St.    Bernard    &c.    Co.,    196    U.    S. 

laxed    in    a    recent   case.      Kinney  v.  239.  25  Sup.   Ct.  251.  49  L.   ed.  462; 

Columbia,   191   U.   S.  78,  24  Sup.   Ct.  Alabama    So.    R.    v.    Thompson,    20(» 

30,  48  L.  ed.  103,  followed  in  LaBelle  U.  S.  206.  26  Sup.  Ct.  161,  50  L.  ed. 

Box   Co.   V.    Stricklin,   218   Fed.   529,  441.      See   also  Wells   v.    Russellville 

533.  &c.   Co..  206  Fed.  528. 

•''2  Ysleta  V.  Cauda,  67  Fed.  6.     Sec  5-  Texas   &c.   R.    Co.  v.    Cody.    166 

pIso  Kinney  v.   Columbia,   191    U.    S.  U.  S.  606,  17  Sup.  Ct.  703,  705,  41  L. 

78,  24  Sup.  Ct.  30,  48  L.  ed.  103.    The  cd.  1132.     See  however  Oregon  Short 

rule   seems   to  be   that   the  matter   is  Line  &c.  R.   Co.  v.  Skottowe,  162  U. 

to   be   determined   from   the   face   of  S.    490.    16    Sup.    Ct.   869,    40    L.    ed. 

the  record  or  state  of  the  pleadings  1048. 

and  record,  including  the  petition  for  ->-^  Corbin  v.  Van  Brunt,   105  U.   S. 

removal  at  the   time  of  the   appHca-  576,    26    L.    ed.    1176;    Shainwald    v. 


§750 


RAILROADS 


90 


the  principal  controversy  in  the  case,  and  the  number  of  contro- 
versies is  immaterial. ^^  In  an  action  in  tort  ag^ainst  a  railroad 
company  and  one  of  its  employes,  where  each  was  charged  with 
a  different  negligent  act  causing  the  injury  to  the  plaintiff",  it 
has  been  held  that  a  separable  controversy  was  presented  and  that 
the  suit  might  be  removed.^^  But  it  has  been  held,  on  the  other 
hand,  that  there  is  no  separable  controversy  where  the  only 
question  is  as  to  the  priority  of  different  liens  on  the  same  prop- 
erty,^' even  though  each  defendant  makes  a  separate  defense,^^ 
or  where  land  is  sought  to  be  condemned  as  against  both  the 
lessor  and  lessee,^^  or  where  a  railroad  company  in  one  proceed- 
ing files  a  petition  for  condemnation  against  numerous  property 
owners,*"'*^   or  where   two   corporations  are  jointly   charged   with 


Lewis,  108  U.  S.  158,  2  Sup.  Ct.  o85, 
27  L.  ed.  691  ;  Torrence  v.  Shedd, 
144  U.  S.  527,  530,  12  Sup.  Ct.  726, 
36  L.  ed.  528;  Capital  City  Bank  v. 
Hodgin,  22  Fed.  209.  The  Jarnecke 
Ditch,  In  re,  69  Fed.  161,  and  nu- 
merous authorities  there  cited ;  Na- 
tional Docks  &c.  R.  Co.  V.  Pennsyl- 
vania R.  Co.,  52  N.  J.  Eq.  58,  28  Atl. 
71. 

55  Farmers'  Loan  &c.  Co.  v.  Chi- 
cago &c.  R.  Co.,  9  Biss.  (U.  S.)  133, 
Fed.  Cas.  No.  4665;  Snow  v.  Smith, 
4  Hughes  (U.  S.)  204,  88  Fed.  657. 
See  also  for  cases  in  which  it  was 
held  that  there  was  a  separable  con- 
troversy. Taylor  Co.  v.  Baltimore 
&c.  R.  Co..  35  Fed.  161;  Foster  v. 
Chesapeake  &c.  R.  Co.,  47  Fed.  369. 

56  Fergason  v.  Chicago  &c.  R.  Co.. 
63  Fed.  177;  Beuttel  v.  Chicago  &c. 
R.  Co.,  26  Fed.  50.  See  also  Trivette 
V.  Cliesapeake  &c.  R.  Co.,  212  Fed. 
641  ;  Nichols  v.  Chesapeake  &c.  R. 
Co.,  195  Fed.  913,  915,  but  see  next 
following  section. 

5"  Bissell  V.  Canada  &c.  R.  Co., 
39  Fed.  225. 


58  Fidelity  Ins.  Co.  v.  Hunting- 
ton, 117  U.  S.  280,  6  Sup.  Ct.  733,  29 
L.  ed.  898 ;  Young  v.  Parker,  132  U. 
S.  267,  10  Sup.  Ct.  75,  33  L.  ed.  352. 

5!>  Bellaire  v.  Baltimore  &c.  R.  Co., 
146  U.  S.  117,  13  Sup.  Ct.  16,  36  L. 
ed.  910;  Kohl  v.  United  States,  91 
U.  S.  367,  23  Fed.  449. 

CO  Perkins  v.  Lake  Superior  &c.  R. 
Co.,  140  Fed.  906.  In  the  case  cited 
the  company,  imder  the  Wisconsin 
statute,  filed  a  petition  in  a  court  of 
the  state  against  numerous  property 
owners,  upon  which,  according  to  the 
statute,  there  should  be  a  hearing  as 
to  the  petitioner's  right  to  condemn, 
and,  if  such  right  is  sustained,  for 
the  appointment  of  a  commission, 
which  on  request  of  the  company  or 
the  landowner,  shall  appraise  any 
piece  of  the  property  described,  from 
which  appraisal  an  appeal  may  be 
taken  to  the  court,  and  tried  by  a 
jurj'  as  in  ordinary  law  actions.  The 
court  held  that  there  was  a  single 
controversy  presented  as  to  the  right 
to  condemn,  to  be  determined  be- 
tween   the    ]ietitioner,    on    one    side 


91 


REMOVAL    OF    CAUSES 


§750 


trespassing  on  the  plaintiff's  land,  even  though  one  of  the  de- 
fendants claims  that  the  other  did  not  have  a  corporate  exist- 
ence and  that  it  alone  committed  the  alleged  trespass,^^  or  Avhere 
a  sub-contractor  sues  both  a  railroad  company  and  the  principal 
contractor  under  a  statute  giving  contractors  and  material  men 
a  lien  on  the  railroad.^-  The  question  whether  there  is  a  separ- 
able controversy  authorizing  a  removal  is  to  be  determined  by 
the  state  of  the  pleadings  or  record  at  the  time  of  the  applica- 
tion, and  not  from  the  allegations  of  the  petition  for  removal 
or  the  subsequent  proceedings.^^  Indeed,  it  is  held  that  it  must 
be  determined  from  the  declaration  or  pleadings  of  the  plaintiff, 
and  that  a  defendant  cannot,  by  answer,  raise  a  separable  con- 
troversy.^'* The  rule  is  thus  stated  in  a  recent  case.*^^  "As  this 
court  has  repeatedly  affirmed,  not  only  in  cases  of  joint  contvacts, 


and  all  of  the  parties  joined  as  de- 
fendants, on  the  other ;  and  that  the 
mere  fact  that  a  defendant  was  the 
owner  of  part  of  the  lands  sought  to 
be  taken  in  severalty  did  not  create 
a  separable,  controversy  between  him 
and  the  petitioner,  nor  entitle  him  to 
remove  the  proceeding  into  a  fed- 
eral court  on  the  ground  of  diversity 
of  citizenship.  See  also  Jarnecke 
Ditch,  In  re,  69  Fed.  161  ;  Le  Mars 
V.  Iowa  Falls  &c.  R.  Co.,  48  Fed.  661. 
But  compare  Pacific  R.  Removal 
Cases,  115  U.  S.  1,  5  Sup.  Ct.  1113, 
29  L.  ed.  319;  Chicago  v.  Hutchin- 
son, 11  Biss.  (U.  S.)  484,  15  Fed. 
129;  Helena  &c.  Co.  v.  Spratt,  146 
Fed.  310. 

61  Louisville  &c.  R.  Co.  v.  ^^'ange- 
lin,  132  U.  S.  599,  10  Sup.  Ct.  203, 
33  L.  ed.  474. 

62  Ames  V.  Chicago  &c.  R.  Co.,  39 
Fed.  881.  See  generally  Merchants' 
&c.  Co.  V.  Insurance  Co.,  151  U.  S. 
368,  14  Sup.  Ct.  367,  38  L.  ed.  195; 
St.  Louis  &c.  R.  Co.  V.  Wilson,  114 
U.   S.  60,  5   Sup.   Ct.  738,  29  L.  ed. 


66;  Thurber  v.  Miller,  67  Fed.  371; 
Haire  v.  Rome  R.  Co.,  57  Fed.  321 ; 
Sweeney  v.  Grand  Island  &c.  R.  Co., 
61  Fed.  3;  Fox  v.  Mackay,  60  Fed. 
4. 

63  Barney  v.  Latham.  103  U.  S. 
205.  26  L.  ed.  514 ;  Graves  v.  Corbin, 
132  U.  S.  571.  10  Sup.  Ct.  196,  33  L. 
ed.  462 ;  The  Jarnecke,  Ditch,  In  re, 
69  Fed.  161 ;  Grand  Trunk  R.  Co.  v. 
Twitchell,  59  Fed.  727.  See  also 
Chicago  &c.  R.  Co.  v.  Dowell,  229  U. 
S.  102,  111,  113,  32  Sup.  Ct.  584,  57 
L.   ed.   1090. 

64  Ayres  v.  Wiswall,  112  U.  S.  187, 
5  Sup.  Ct.  90,  28  L.  ed.  693;  Louis- 
ville &c.  R.  Co.  V.  Ide,  114  U.  S.  52,  5 
Sup.  Ct.  735,  29  L.  ed.  63;  Arrow- 
smith  V.  Nashville  &c.  R.  Co.,  57 
Fed.  165 ;  Thurber  v.  Miller,  67  Fed. 
371;  National  Docks  &c.  R.  Co.  v. 
Penns}  Ivania  R.  Co.,  52  N.  J.  Eq.  58, 
28  Ati.  71. 

osTorrence  v.  Shedd,  144  U.  S. 
527,  530,  12  Sup.  Ct.  726,  36  L.  ed. 
528. 


§  751  RAILROADS  92 

hut  in  actions  for  torts,  which  niii^ht  have  l)ccn  hrought  against 
all  or  against  any  one  of  the  defendants,  separate  answers  by 
the  several  defendants  sued  on  joint  causes  of  action  may  pre- 
sent different  questions  for  determination,  Init  they  do  not  neces- 
sarily divide  the  suit  intt)  separate  contro\'ersies.  A  defendant 
has  no  right  to  say  that  an  action  shall  be  several  which  a  plain- 
tiff elects  to  be  joint.  A  separate  defense  may  defeat  a  joint  re- 
covery, but  it  cannot  deprive  a  plaintiff  of  his  right  to  prosecute 
his  own  suit  to  final  determination  in  his  own  way.  The  cause 
of  action  is  the  subject-matter  of  the  controversy,  and  that  is, 
for  all  the  purposes  of  the  suit,  whatever  the  plaintiif  declares 
it  to  be  in  his  pleadings."*''^  The  fact  that  one  of  two  joint  de- 
fendants fails  to  answer  or  suffers  a  default  does  not  make  the 
controversy  a  separable  one  between  the  j^laintilT  and  the  other 
defendant.'"''^ 

§  751  (650a).  Action  against  company  and  employe. — The 
(fuestion  has  arisen  in  a  number  of  cases  as  to  whether  against  a 
company  and  one  or  more  of  its  employes,  or  against  a  lessor  r-nd 
lessee  company,  jointly  can  be  removed  as  presenting  a  separ- 
able controversy  especially  where  one  object  of  the  joinder  ap- 
pears to  be  to  prevent  a  removal.  There  is  some  conflict  r;mong 
the  authorities,  but  the  better  rule  is  that  where,  as  in  most 
jurisdictions  and  cases,  a  joint  action  may  be  maintained,  the 
case  cannot  be  removed  as  presenting  a  separable  controversy 
even  though  one  purpose  of  the  joinder  may  have  been  to  pre- 
vent a  remo\al.  and  this  is  the  rule  now^  sustained  by  the  great 

'•<''  Citing   Loiiisvillo    &c.    R.    Co.   v.  •"■"  Wilson  v.  Oswego  Twp.,  151  U. 

Ide.  114  U.  S.  52.  56.  5  Sup.  Ct.  735,  S.  56,  14  Sup.  Ct.  259,  38  L.  ed.  70; 

29  L.  ed.  63;  Piric  v.  Tvedt,  115  U.  Putnam   v.    Ingraham,    114  U.   S.   57, 

S.   41.  43.   5   Sup.   Ct.    1034.    1161.  29  29  L.  cd.  65;  I'cison  v.  Hardy,  114  N. 

L.  ed.  331;   Sloanc  v.  Anderson,  117  Car.    58,   429,    19   S.    E.   91,   701.      So 

U.   S.  275,  6  Sup.  Ct.  730,  29  L.  cd.  iiold,    even    wlure    no    process    was 

899;    Little   v.    Giles,    118   U.    S.   596,  served  against  one  of  the  defendants 

601.  602,  7  Sup.  Ct.  32,  30  L.  ed.  269;  and   he   did   not  appear.     Patchin    v. 

Thorne   Wire    Hedge    Co.    v.    Fuller,  Hunter,    38   Fed.    51 ;    Ames   v.    Chi- 

122  U.  S.  535,  7  Sup.  Ct.  1265,  30  L.  cago  &c.  R.  Co.,  39  Fed.  881. 
ed.  1235.     See  also  Thomas  v.  Great 
Northern  R.  Co.,  147  Fed.  83. 


93 


REMOVAL    OF    CAUSES 


§751 


weight  of  authority.*'^  But  a  fraudulent  joinder  wronofully  at- 
tempting to  deprive  parties  of  their  rights  in  the  federal  c(;urts 
will  not  defeat  a  removal  where  it  is  properly  shown. ^^  The 
federal  court  finally  determines  the  question;'^"  but  the  petition 
must  state  facts  showing  the  fraudulent  joinder,  and  not  mere 
conclusions. ■'^i  The  general  subject  has  received  careful  consid- 
eration in  recent  decisions  of  the  supreme  court  of  the  United 
States,  from  which  we  quote  below. '^- 


'■'*  Charman  v.  Lake  Erie,  &c.  R. 
Co.,  105  Fed.  449;  Louisville  &c.  R. 
Co.  V.  Ide,  114  U.  S.  52,  5  Sup.  Ct. 
735,  29  L.  ed.  63;  Little  v.  Giles,  118 
U.  S.  596.  7  Sup.  Ct.  32,  30  L.  ed. 
269;  Torrence  v.  Shedd,  144  U.  S. 
527,  12  Sup.  Ct.  726,  36  L.  ed.  528; 
Powers  V.  Chesapeake  &c.  R.  Co., 
169  U.  S.  92.  18  Sup.  Ct.  264,  42  L. 
ed.  673 ;  Chesapeake  &c.  R.  Co.  v. 
Dixon,  179  U.  S.  131,  21  Sup.  Ct. 
67,  45  L.  ed.  121  ;  Alabama  &c.  R.  Co. 
V.  Thompson,  200  U.  S.  206,  26  Sup. 
Ct.  161,  50  L.  ed.  441  ;  Cincinnati  &c. 
R.  Co.  V.  Bohon,  200  U.  S.  221,  26 
Sup.  Ct.  166.  50  L.  ed.  448;  Chicago 
&c.  R.  Co.  V.  Dowell,  229  U.  S. 
102.  33  Sup.  Ct.  584,  57  L.  ed.  1090; 
Deere  &c.  Co.  v.  Chicago  &c.  Co.,  85 
Fed.  876 ;  Thomas  v.  Great  North- 
ern R.  Co.,  147  Fed.  83;  Illinois 
Cent.  R.  Co.  v.  Jones.  118  Ky.  158, 
80  S.  W.  484;  Ayles  v.  Southern  R. 
Co.,  121  Ky.  59.  88  S.  W.  1048,  121 
Am.  St.  453  (action  against  two  com- 
panies). See  also  Martin  v.  St. 
Louis  &c.  R.  Co.,  134  Fed.  134;  Lake 
Erie  &c.  R.  Co.  v.  Charman,  161  Ind. 
95,  67  X.  E.  923.  But  compare,  as 
to  lessor  and  lessee,  Yeates  v.  Illi- 
nois Cent.  R.  Co.,  137  Fed.  943.  And 
see  where  different  and  not  con- 
current negligence  is  charged.  Tri- 
vette   V.   Chesapeake   &c.    R.    Co..  212 


Fed.  641.  See  generally  South- 
ern R.  Co.  V.  Carson.  194  U.  S.  136, 
24  Sup.  Ct.  609,  38  L.  ed.  907. 

<>''See  Dudley  v.  Illinois  Cent.  R. 
Co.   (Ky.),  96  S.  W.  835. 

""  The  present  rule  seems  to  be 
that  the  petition  must  be  taken  as 
true  in  the  state  court.  Burlington 
&c.  R.  Co.  V.  Dunn.  122  U.  S.,  513, 
7  Sup.  Ct.  262,  30  L.  ed.  1059  (tries 
the  question  of  fact )  ;  Stone 
V.  South  Carolina,  117  U.  S.  430,  6 
Sup.  Ct.  799,  29  L.  ed.  962. 

"1  Rutherford  v.  Illinois  Cent.  R. 
Co..  120  Ky.  15,  85  S.  W.  199;  Illi- 
nois Cent.  R.  Co.  v.  Le  Blanc,  74 
^liss.  626.  21   So.  748. 

"-  In  Alabama  &c.  R.  Co.  v. 
Thompson.  200  U.  S.  236.  26  Sup.  Ct. 
161.  164  et  seq..  50  L.  ed.  441.  it  is 
said,  quoting  from  Powers  v.  Chesa- 
peake &c.  R.  Co.,  169  U.  S.  92,  18 
Sup.  Ct.  264,  265 :  "It  is  well  settled 
that  an  action  of  tort,  which  might 
have  been  brought  against  many  per- 
sons or  against  any  one  or  more  of 
them,  and  which  is  brought  in  a 
state  court  against  all  jointly,  con- 
tains no  separate  controversy  which 
will  authorize  its  removal  by  some 
of  the  defendants  into  the  circuit 
court  of  the  United  States,  even  if 
they  rtlo  separate  answers  and  set  up 
different  defenses  from  the  other  de- 


§752 


RAILROADS 


94 


§  752  (651).  Prejudice  or  local  influence  as  a  ground  for  re- 
moval.— The  provisions  for  removal  where  there  is  a  separate 
controversy  are  not  applicable  where  the  removal  is  sought  upon 


fendants,  and  allege  that  they  are 
not  jointly  liable  with  them,  and 
that  their  own  controversy  with  the 
plaintiff  is  a  separate  one;  for,  as 
this  court  has  often  said,  'a  defen- 
dant has  no  right  to  say  that  an  ac- 
tion shall  be  several  which  the  plain- 
tiff seeks  to  make  joint.  A  separate 
defense  may  defeat  a  joint  recov- 
ery, but  it  cannot  deprive  a  plaintiff 
of  his  right  to  prosecute  his  suit  to 
final  decision  in  his  own  way.  The 
cause  of  action  is  the  subject-matter 
of  the  controversy,  and  that  is,  for 
all  the  purposes  of  the  suit,  what- 
ever the  plaintiff  declares  it  to  be 
in  his  pleadings.'  Pirie  v.  Tvedt,  115 
U.  S.  41,  43,  5  Sup.  Ct.  1034,  1161, 
29  L.  ed.  331,  332;  Sloane  v.  Ander- 
son, 117  U.  S.  275,  6  Sup.  Ct. 
730,  29  L.  ed.  899;  Little  v.  Giles, 
118  U.  S.  596,  600,  601,  7  Sup.  Ct. 
32,  30  L.  ed.  269-271;  Louisville 
&c.  R.  Co.  v.  Wangelin,  -132 
U.  S.  599,  10  Sup.  Ct.  203,  33  L.  ed. 
474;   Torrence  v.    Shedd,    144   U.    S. 

527,  530,  12  Sup.  Ct.  726,  26  L.  ed. 

528,  531 ;  Connell  v.  Smiley,  156  U.  S. 
335,  340,  15  Sup.  Ct.  353,  39  L.  ed. 
443,  444.  It  is  also  said  that  the 
fact  that  by  answer  the  defendant 
may  show  that  the  liability  is  several 
cannot  change  the  character  of  the 
case  made  by  the  plaintiff  in  his 
pleading  so  as  to  affect  the  right  of 
removal.  It  is  to  be  remembered 
that  we  are  not  now  dealing  with 
joinders  which  are  shown  by  the  pe- 
tition for  removal,  or  othewise,  to 
be  attempts  to  sue  in  the  state  courts 


with  a  view  to  defeat  federal  juris- 
diction. In  such  cases  entirely  dif- 
ferent questions  arise,  and  the  fed- 
eral courts  may  and  should  take  such 
action  as  will  defeat  attempts  to 
wrongfully  deprive  parties  entitled 
to  sue  in  the  federal  courts  of  the 
protection  of  their  rights  in  those 
tribunals.  *  *  *  Does  this 
become  a  separal)le  controversy  with- 
in the  meaning  of  the  act  of  con- 
gress because  the  plaintiff  has  mis- 
conceived his  cause  of  action,  and 
had  no  right  to  prosecute  the  defen- 
dants jointly?  We  think,  in  the 
light  of  the  adjudications  above 
cited  from  this  court,  it  does  not. 
Upon  the  face  of  the  complaint — the 
only  pleading  filed  in  the  case — the 
action  is  joint.  It  may  be  that  the 
state  court  will  hold  it  not  to  be  so. 
It  may  be  (which  we  are  not  called 
upon  to  decide  now)  that  this  court 
would  so  determine  if  the  matter 
shall  be  presented  in  a  case  of  which 
it  has  jurisdiction.  But  this  does 
not  change  the  character  of  the  ac- 
tion which  the  plaintiff  has  seen  fit 
to  bring,  nor  change  an  alleged  joint 
cause  of  action  into  a  separable  con- 
troversy for  the  purpose  of  removal. 
The  case  cannot  be  removed  unless 
it  is  one  which  presents  a  separable 
controversy  wholl}'  between  citizens 
of  different  states.  In  determining 
this  question  the  law  looks  to  the 
case  made  in  the  pleadings,  and  de- 
termines whether  the  state  court 
shall  be  required  to  surrender  its 
jurisdiction     to     the     federal     court. 


95 


REMOVAL    OF    CAUSES 


§752 


the  ground  of  prejudice  or  local  influence.'^  The  act  of  March  3, 
1887,  as  corrected  by  the  act  of  August  13,  1888,  unlike  the  earlier 
acts,  gave  the  plaintiff  no  right  of  removal  upon  the  ground  of 
prejvidice  or  local  influence,  but  it  permitted  one  of  several  defend- 
ants, where  the  requirements  as  to  citizenship  and  the  amount  in 
controversy  were  satisfied,  to  obtain  a  removal,'''^  whereas  the  act 
of  1867  required  all  the  defendants  to  join  in  the  petition.  He 
must,  however,  be  a  citizen  of  a  dift'ercnt  state  from  that  in  which 
the  suit  is  brought, '^^  and  it  has  been  held  that  the  plaintiffs  must 
all  be  citizens  of  the  state  in  which  the  suit  is  brought.'*^  A  de- 
fendant who  is  a  citizen  of  the  same  state  as  some  of  the  plaintiffs 
cannot  have  the  suit  removed  merely  upon  the  ground  of  prej- 
udice or  local  influence  as  between  himself  and  other  defend- 
ants,'' nor  can  a  non-resident  defendant,  joined  with  another 
defendant  who  is  a  citizen  of  the  same  state  as  the  plaintiff, 
remove  the  cause  on  the  ground  of  prejudice  or  local  influence.''* 


*  *  *  The  fact  thaat  the  state 
court  may  take  a  different  view 
from  the  courts  of  the  United  States 
of  the  common  law  as  to  the  char- 
acter of  such  actions,  and  the  right 
to  prosecute  them  in  form  joint  as 
well  as  several,  affords  no  ground  of 
removal."  See  also  Cincinnati  &c. 
R.  Co.  V.  Bohon,  200  U.  S.  221,  26 
Sup.  Ct.  166,  50  L.  ed.  448. 

"^3  Jefferson  v.  Driver,  117  U.  S. 
272,  6  Sup.  Ct.  729,  29  L.  ed.  897; 
Young  V.  Parker,  132  U.  S.  267,  10 
Sup.  Ct.  75,  33  L.  ed.  352. 

"4  Haire  v.  Rome  R.  Co.,  57  Fed. 
321;  Fisk  v.  Henarie,  32  Fed.  417; 
Whelan  v.  New  York  &c.  R.  Co.,  35 
Fed.  849.  See  also  Campbell  v.  Col- 
lins, 62  Fed.  849.  It  makes  no  dif- 
ference that  some  of  the  other  de- 
fendants are  residents  of  the  state  in 
which  the  suit  is  brought.  Jackson 
&c.  Co.  V.  Pearson,  60  Fed.  113. 

"i-^  The  clause  authorizing  a  re- 
moval upon  the  ground  of  prejudice 


or  local  influence  does  not  apply 
where  one  party  is  an  alien.  Cohn 
V.  Louisville  &c.  R.  Co.,  39  Fed.  227; 
Grand  Trunk  R.  Co.  v.  Twitchell,  59 
Fed.  727. 

"'^  Thouron  v.  East  Tenn.  &c.  R. 
Co.,  38  Fed.  673;  Niblock  v.  Alex- 
ander, 44  Fed.  306;  Rike  v.  Floyd, 
42  Fed.  247.  This  is  true  at  least 
where  the  plaintiffs  are  all  jointly 
interested  against  the  non-resident 
defendant  who  seeks  the  removal. 
Young  V.  Parker,  132  U.  S.  267,  10 
Sup.  Ct.  75,  33  L.  ed.  352 ;  Gann  v. 
Northeastern    R.    Co.,    57    Fed.    417. 

77  Hanrick  v.  Hanrick,  153  U.  S. 
192,  14  Sup.  Ct.  835,  38  L.  ed.  685. 

7S  Cochran  v.  Montgomery  Coun- 
ty, 199  U.  S.  260,  26  Sup.  Ct.  58.  50 
L.  ed.  182 ;  Armstrong  v.  Kansas 
City  &c.  R.  Co.,  192  Fed.  608.  Cases 
removable  on  this  ground  "are  con- 
fined to  those  in  which  there  is  a 
controversy  between  a  citizen  or 
citizens    of    the    .slate    in    which    the 


§75: 


RAH. ROADS 


96 


It  is  now  settled,  after  some  eontlict  anionj:^"  the  authorities,  that 
the  value  of  the  matter  in  dispute,  exclusi\e  of  interest  and  costs, 
must  exceed  two  thousand  dollars."'-'  The  aj^plication  should  be 
made  to  the  proper  circuit  court  of  the  Tnited  States  and  not 
to  the  state  court. """  'ilie  act  ])rovided  for  a  remoxal  to  the  proper 
circuit  court  by  a  defendant  "when  it  shall  be  made  to  a])i'):'ar  to 
said  circuit  court  that  from  prejudice  or  local  inHuence  he  will  not 
be  able  to  obtain  justice  in  the  state  court  in  which  the  suit  is 
pending-,  or  in  any  other  state  court  to  which  the  said  defendant 
may  under  the  laws  of  the  state,  have  the  right,  on  account  of 
such  prejudice  or  local  influence,  to  remo\e  it;"  btit  it  did  not 
prescribe  the  method  for  making  this  appear  to  the  circuit  court. 
This  is  usually  accomplished  by  the  affidavit  of  the  party  seeking 
the  removal.  It  is  the  better  and  safer  practice  to  state  the  tacts 
showing  the  ])rejiulice  or  local  influence, ^^  but  in  a  few  of  the 
circuits  it  has  been  held  sui^cient  to  follow  the  language  of  the 
statute.'*^-  It  is  also  held  in  some  circuits  that  the  defendant's 
affidavit  is  conclusive  and  cannot  be  controverted, ^^^  but  we  think 


suit  is  brouglit  and  a  citizen  or  citi- 
zens of  another  or  other  states,  and 
do  not  include  cases  wherein  the 
controversy  is  between  citizens  of 
the  same  state."  Southern  R.  Co.  v. 
Thomason,  146  Fed.  972;  Cleveland 
V.  Cleveland  &c.  R.  Co.,  147  Fed. 
171. 

"'J  Pennsylvania  Co.,  Ex  parte,  137 
U.  S.  451.  11  Sup.  Ct.  141,  34  L.  ed. 
738;  Malone  v.  Richmond  &c.  R.  C" 
35  Fed.  625 ;  Carson  &c.  Lumber  Co. 
v.  Holtzclaw,  39  Fed.  57<S;  Rora- 
back  V.  Pennsylvania  Co.,  42  Fed. 
420. 

S"  Williams  v.  Southern  &c.  R.  Co., 
116  N.  Car.  558,  21  S.  E.  298;  South- 
worth  V.  Reid,  36  Fed.  451  ;  Huskins 
V.  Cincinnati  &c.  R.  Co.,  Z7  Fed. 
504;  Rome  &c.  R.  Co.  v.  Smith.  84 
Ga.  238,  !:>  S.  E.  728;  Beyer  v.  Sop- 


Lumber  Co.,  76  Wis.  145,  44  X.  W. 
750,  833.  But  see  Short  v.  Chicago. 
&c.  R.  Co.,  34  Fed.  225. 

■^1  Pennsylvania  Co.,  Ex  parte,  137 
U.  S.  451,  11  Sup.  Ct.  141,  34  L.  ed. 
738;  Amy  v.  Manning,  38  Fed.  536; 
Goldworthy  v.  Chicago  &c.  R.  Co., 
38  Fed.  769;  Schwenk  &  Co.  v. 
Strang.  59  Fed.  209.  It  is  insuf- 
ficient to  state  that  affiant  believes  and 
has  reason  to  believe  that  prejudice 
and  local  influence  exist.  Collins  v. 
Campl)ell,  62  Fed.  850;  Short  v.  Chi- 
cago &c.  R.  Co.,  ZZ  Fed.  114.  See 
also  Niblock  v.  Alexander,  44  Fed. 
306. 

S2  Whelan  v.  New  York  &c.  R.  Co., 
35  Fed.  849 ;  Cooper  v.  Richmond 
&c.  R.   Co.,  42  Fed.  697. 

•■*■■'  Cases  cited  in  last  note,  supra ; 
Huskins  v.  Cincinnati  &c.  R.  Co.,  37 


97  REMOVAL    OF    CAUSES  §  753 

the  better  rule  is  that  the  court  may  receive  counter-affidavits 
or  other  evidence  as  to  the  existence  of  prejudice  or  local  in- 
fluence.^^ 

§  753  (652),  Removal  where  federal  question  is  involved. — 
As  we  have  seen,  provision  is  made  for  the  removal  of  suits  "of 
a  civil  nature,  at  law  or  in  equity,  arising  under  the  constitution 
or  laws  of  the  United  States,  or  treaties  made  under  their  author- 
ity." It  is  net  always  easy,  however,  to  determine  when  a  suit 
is  one  arising"  under  the  constitution  or  laws  of  the  United  States. 
It  was  said  by  Chief  Justice  Marshall  that  "a.  case  in  law  or 
equity  consists  of  the  right  of  the  one  party  as  well  as  the  other, 
and  may  truly  be  said  to  arise  under  the  constitution  or  a  law 
of  the  United  States  whenever  its  correct  decision  depends  on 
the  right  construction  of  either."^^  But  the  suit  must  actually 
arise  out  of  the  operation,  construction  or  application  of  some 
provision  of  the  constitution  or  laws  of  the  United  States,  and 
it  is  not  sufficient  that  during  its  progress  a  construction  of  the 
constitution  or  some  law  of  the  United  States  may  become  neces- 
sary.^^ If  the  only  right  claimed  by  the  plaintiff  is  under  a  state 
law,  a  mere  suggestion  in  his  bill  that  the  defendant  will  claim 
that  such  law  is  void  because  in  contravention  of  the  constitu- 
tion of  the  United  States  will  not  entitle  the  defendant  to  remove 

Fed.  504;  Hills  v.  Richmond  &c.  R.  Mississippi,  102  U.  S.  135.  26  L.  ed. 

Co.,  33  Fed.  81;  Brodhead  v.  Shoe-  96. 

maker,  44  Fed.  518.  86  Gold   &c.   Water   Co.   v.    Keyes, 

84  Short  V.  Chicago  &c.  R.  Co.,  34  96  U.  S.  199,  24  L.  ed.  656 ;  Starin 
Fed.  225;  Malone  v.  Richmond  &c.  v.  New  York,  115  U.  S.  248.  6  Sup. 
R.  Co.,  35  Fed.  625;  Robison  v.  Har-  Ct.  28,  29  L.  ed.  388;  Carson  v.  Dun- 
dy, 38  Fed.  49;  Carson  &c.  Lumber  ham,  121  U.  S.  421,  7  Sup.  Ct.  1030. 
Co.  V.  Holtzclaw,  39  Fed.  578.  See  30  L.  ed.  992 ;  Dowell  v.  Griswold,  5 
also  Walcott  V.  Watson,  46  Fed.  529 :  Sawy.  (U.  S.)  39,  Fed.  Cas.  No. 
Pennsylvania  Co.,  Ex  parte,  137  U.  4041 ;  Iowa  v.  Chicago  &c.  R.  Co.,  33 
S.  457.  11  Sup.  St.  143,  34  L.  ed.  Fed.  391;  Fitzgerald  v.  Missouri 
741.  Pac.  R.  Co..  45  Fed.  812;  Leggett  v. 

85  Cohens  v.  Virginia,  6  Wheat.  Great  Northern  R.  Co.,  180  Fed.  314; 
(U.  S.)  264,  379,  5  L.  ed.  257.  See  Illinois  Central  R.  Co.  v.  Chicago 
also  Germania  Ins.  Co.  v.  Wisconsin,  &c.  R.  Co.,  122  111.  473,  13  N.  E. 
119  U.  S.  473,  7  Sup.  Ct.  260,  30  L.  140;  Schuyler  v.  Southern  Pac.  Co., 
ed.  461 ;  New  Orleans  &c.  R.  Co.  v.  37  Utah  581,  109  Pac.  458. 


§753 


RAILROADS 


98 


the  suit  upon  the  ground  that  a  federal  question  is  involved.''' 
Among  the  suits  that  have  been  held  removable  as  arising  under 
the  constitution  or  laws  of  the  United  States  are  those  in  which 
the  question  as  to  whether  a  state  law  impairs  the  obligation  of 
a  contract  is  involved,^^  suits  by  or  against  a  corporation  created 
by  congress  f^  suits  against  receivers  appointed  by  a  federal 
court  ;^"  and  suits  against  interstate  carriers  of  goods  for  unjust 
discrimination  and  excessive  charges  contrar\-  to  the  interstate 
commerce  law.^^  On  the  other  hand,  an  application,  by  a  com- 
missioner appointed  to  abolish  grade  crossings,  for  a  mandamus 
to  compel  a  railroad  company  to  obey  its  order  changing  the 
location  of  the  company's  tracks  has  been  held  not  to  be  remov- 
able on  the  ground  that  a  federal  question  was  involved.^^     Sq^ 


87  Tennessee  v.  Union  &c.  Bank, 
152  U.  S.  454,  14  Sup.  Ct.  654,  38  L. 
ed.  511. 

88  Smith  V.  Greenhow.  109  U.  S. 
669.  3  Sup.  Ct.  421,  27  L.  ed.  1080; 
People  V.  Chicago  &c.  R.  Co.,  16 
Fed.  706 ;  Illinois  v.  Illinois  Cent. 
R.  Co.,  33  Fed.  721;  State  v.  Port 
Royal  &c.  R.  Co.,  56  Fed.  333.  But 
see  Hamilton  Gaslight  &c.  Co.  v. 
Hamilton,  146  U.  S.  258,  13  Sup.  Ct. 
90.  36  L.  ed.  963;  Stein  v.  Bienville 
Water  Co.,  141  U.  S.  67,  11  Sup.  Ct. 
892.  35  L.  ed.  622. 

89  Pacific  Railroad  Removal  Cases, 
115  U.  S.  1,  5  Sup.  Ct.  1113,  29  L. 
ed.  319;  Ames  v.  Kansas.  Ill  U.  S. 
449,  4  Sup.  Ct.  437.  28  L.  ed.  330; 
Union  Pac.  R.  v.  McComb,  1  Fed. 
799.  See  also  Martin  v.  St.  Louis  &c. 
R.  Co.,  134  Fed.  134. 

90  Texas  &c.  R.  Co.  v.  Cox.  145 
U.  S.  593,  12  Sup.  Ct.  905,  36  L.  ed. 
829;  Jewett  v.  Whitcomb,  69  Fed. 
417;  Evans  v.  Dillingham,  43  Fed. 
177;  Central  Trust  Co.  v.  East  Ten- 
nessee &c.  R.  Co.,  59  Fed.  523 ;  Hard- 
wick  v.  Kean,  95  Ky.  563,  26  S.  W. 


589.  But  the  mere  fact  that  the  re- 
ceiver was  appointed  by  a  federal 
court  does  not  necessarily  make  all 
actions  against  him  removable  under 
this  provision.  Gableman  v.  Peoria 
&c.  R.  Co.,  179  U.  S.  335,  21  Sup.  Ct. 
171,  45  L.  ed.  220. 

91  Lowry  v.  Chicago  &c.  R.  Co.,  46 
Fed.  83.  See  also  State  v.  Port 
Royal  &c.  R.  Co.,  56  Fed.  333;  Len- 
non.  Ex  parte,  64  Fed.  320.  For 
other  cases  removable  on  this 
ground,  see  Kansas  Pac.  R.  Co.  v. 
Atchison  R.  Co.,  112  U.  S.  414,  5 
Sup.  Ct.  208,  28  L.  ed.  794;  South- 
ern Pac.  R.  Co.  V.  California,  118  U. 
S.  109,  6  Sup.  Ct.  993,  30  L.  ed.  103 ; 
Smith  v.  Atchison  &c.  R.  Co.,  210 
Fed.  988. 

92  Woodruff  v.  New  York  Ike.  R. 
Co..  59  Conn.  63,  20  Atl.  17;  Dey  v. 
Chicago  &c.  R.  Co..  45  Fed.  82.  See 
also  Western  Un.  Tel  Co.  v.  South- 
east &c.  R.  Co.,  208  Fed.  266;  State 
v.  Louisville  &c.  R.  Co.,  104  Miss 
413.  61  So.  425;  North  Carolina 
Corp.  Com.  v.  Southern  R.  Co.,  151 
N.   Car.  447,  66  S.  E.  427.     But  see 


99  REMOVAL    OF    CAUSES  §  753 

a  suit  does  not  arise  under  the  constitution  or  laws  of  the  United 
States,  and  is  not  removable  on  that  ground,  merely  because  it 
requires  the  statutes  of  one  state  to  be  construed  by  a  court  of 
another  statc.'*^  Nor  does  a  bill  in  equity  to  set  aside  a  lease 
by  a  corporation  of  one  state  to  a  corporation  of  another  state 
as  ultra  vires  and  void  and  obtain  an  accounting,  assert  or  raise 
any  federal  question.^''  It  has  also  been  held  that  a  proceeding 
to  prevent  a  bridge  company  from  using  a  franchise  to  operate 
a  railroad  in  a  public  street  does  not  involve  a  federal  question.^^ 
A  suit  is  not  removable  as  arising  under  the  lav^s  of  the  United 
States  merely  because  the  supreme  court  or  some  other  federal 
court  has,  in  another  case,  decided  the  questions  of  law  in- 
volved ;  96  but,  on  the  other  hand,  it  has  been  held  that  a  propo- 
sition of  law  which  has  once  been  decided  by  the  supreme  court 
of  the  United  States  can  no  longer  be  treated  as  a  federal  ques- 
tion.9^  The  fact  that  a  federal  question  is  involved  must  ap- 
pear from  the  plaintiff's  own  statement  of  his  claim,  and  where 
it  is  not  so  made  to  appear  it  cannot  be  supplied  by  any  allega- 
tion in  the  petition  for  removal  or  the  subsequent  pleadings.^^ 

where  proceeding  was  to  compel  States.  But  see  Arkansas  v.  Choc- 
company  to  replace  bridge  over  a  taw  &c.  R.  Co.,  134  Fed.  106,  follow- 
navigable  river.  State  v.  White  ing  the  case  first  cited  in  this  note 
River  Val.  R.  Co.,  27  S.  Dak.  65,  and  citing  other  cases  which  have 
129  N.  W.  1034.  followed  it,  so  that  the  question  now 

93  Chicago  &c.  R.  Co.  v.  Wiggins  seems  to  be  settled.  Compare,  how- 
Ferry  Co.,  108  U.  S.  18,  1  Sup.  Ct.  ever,  Cornue  v.  IngersoU,  174  Fed. 
614,  27  L.  ed.  636.  666. 

94  Central  R.  Co.  v.  Mills,  113  U.  98  Tennessee  v.  Union  &c.  Bank, 
S.  249,  5  Sup.  Ct.  456,  28  L.  ed.  949.  152  U.  S.  454,  14  Sup.  Ct.  654,  38  L. 

95  Commonwealth  v.  Louisville  ed.  511;  Chappell  v.  Waterworth,  155 
Bridge  Co.,  42  Fed.  241.  U.  S.  102,  15  Sup.  Ct.  34,  39  L.  ed. 

96  Leather  Manufacturers'  Nat.  85;  East  Lake  Land  Co.  v.  Brown, 
Bank  V.  Cooper,  120  U.  S.  778,  7  155  U.  S.  488,  15  Sup.  Ct.  357,  39  L. 
Sup.  Ct.  m.  30  L.  ed.  816.  ed.  233;  Postal  Tel.  &c.  Co.  v.  Ala- 

97  Kansas  v.  Bradley,  26  Fed.  289.  bama,  155  U.  S.  482,  15  Sup.  Ct.  192, 
This  decision,  however,  seems  to  us  39  L.  ed.  231 ;  Oregon  Short  Line  R. 
to  be  questionable  and  in  conflict  Co.  v.  Shotlowe,  162  U.  S.  490,  16 
with  the  case  cited  in  the  last  pre-  Sup.  Ct.  869,  40  L.  ed.  1048;  Haggin 
ceding  note.  The  federal  courts  do  v.  Lewis,  66  Fed.  199;  Caples  v. 
not    make    the    laws    of   the    United  Texas  &c.  R.  Co.,  67  Fed.  9 ;  Mitchell 


§754 


RAILROADS 


100 


§  754  (653).  Time  and  manner  of  making  application  for 
removal. — Under  the  act  of  March  3,  1887,  as  corrected  by  the 
act  of  August  13,  1888.  the  application  for  removal  upon  any 
other  ground  than  that  of  prejudice  or  local  influence  should  he 
made  by  filing  a  petition  in  the  state  court  "before  the  defendant 
is  required  by  laws  of  the  state  or  the  rule  of  the  state  court  In 
which  such  suit  is  brought  to  answer  or  plead  to  the  declaration 
or  complaint  of  the  plaintiff."  If  no  application  is  fxled  within 
that  time  the  right  of  removal  is  lost.^'^  But  it  is  held  that  the 
petitioner  has  the  full  time  allowed  the  defendant  in  which  to 
answer  or  plead,  although  the  latter  may  demur  or  answer  be- 
fore it  is  expired,^  and  that  where  an  amended  complaint  is  filed 
which  states  an  entirely  different  cause  of  action  in  which  the 
original  suit  is  merged  the  time  begins  to  run  from  the  filing  of 


&c  Co.  V.  Worthington,  140  Fed. 
947;  Leggett  v.  Great  Northern  R. 
Co.,  180  Fed.  314;  Clarke  v.  South- 
ern Pac.  Co.,  175  Fed.  122.  But  see, 
where  the  corporation  is  a  federal 
corporation  and  the  question  is  as 
to  diverse  citizenship.  Texas  &c.  R. 
Co.  V.  Cody,  166  U.  S.  606,  17  Sup. 
Ct.  763,  41  L.  ed.  1132.  See  gener- 
allj-  Galveston  R.  v.  Texas,  170  U. 
S.  226,  18  Sup.  Ct.  603.  42  L. 
ed.  1017;  Boston  &c.  Co.  v.  Montana 
&c.  Co.,  188  U.  S.  632.  23  Sup.  Ct. 
434,  47  L.  ed.  626. 

99  Price  v.  Lehigh  &c.  R.  Co.,~65 
Fed.  825;  Woolf  v.  Chisholm,  30 
Fed.  881;  Font  v.  Gulf  &c.  Co.,  47 
La.  Ann.  272,  16  So.  828;  Williams 
v.  Southern  &c.,  116  N.  Car.  558,  21 
S.  E.  298 ;  Beyer  v.  Soper  Lumber  Co.. 
76  Wis.  145,  44  N.  W.  750,  833.  See 
also  Houston  &c.  R.  Co.  v.  Shirlej'. 
Ill  U.  S.  358,  4  Sup.  Ct.  472.  28  L. 
ed.  455;  Fletcher  v.  Hamlet,  116  U. 
S.  408,  6  Sup.  Ct.  426,  29  L.  ed.  679 ; 
Kelley  v.  Virginia  Bridge  &c.  Co.,  203 
Fed.  566;  Lesh  v.  Bailey.  49  Ind.  App. 


254,  95  N.  E.  341;  Chicago  &c.  R. 
Co.  v.  Little  Larkio  Drainage  Dist., 
237  Mo.  86,  139  S.  W.  572.  For  con- 
struction of  statute  and  rule  of  court 
held  to  govern,  see  First  Nat.  Bank 
V.  A.  E.  Appleyard  &  Co.,  138  Fed. 
939.  As  to  sufficiency  of  petition  as 
to  statement  that  time  to  plead  had 
not  arrived,  see  Remington  v.  Cen- 
tral Par.  R.  Co.,  198  U.  S.  95.  25 
Sup.  Ct.  577,  49  L.  ed.  959.  See,  as 
to  right  to  remove  by  acting  prompt- 
ly after  amendment  of  complaint 
making  a  non-removable  case  a  re- 
movable one,  Myrtle  v.  Nevada  &c. 
R.  Co.,  137  Fed.  193;  and  by  re- 
newing application  after  it  appears 
that  a  party  was  fraudulently  joined 
and  no  cause  of  action  is  proved 
against  him.  Dudley  v.  Illinois 
Cent.  R.  Co.  (Ky.),  96  S.  W.  835; 
White  V.  Chicago  &c.  R.  Co.  (Ky.), 
96  S.  W.  911. 

1  Tennessee  &c.  Co.  v.  Waller,  27 
Fed.  545 ;  Gavin  v.  Vance,  ZZ  Fed. 
84;  Conner  v.  Skagit  &c.  Coal  Co., 
45  Fed.  802. 


101  REMOVAL    OF    CAUSES  §  754 

such  amended  complaint.-  The  application  comes  too  late,  how- 
ever, if  not  filed  before  the  time  at  which  the  defendant  is  re- 
quired to  plead  to  the  jurisdiction  or  in  abatement,  even  though 
it  is  filed  before  the  time  at  which  he  is  required  to  plead  to  the 
merits.^  A  defendant  who  makes  no  application  for  removal 
himself  cannot  assign  as  error  the  action  of  the  court  in  denying 
a  removal  upon  the  application  of  other  defendants.-*  So,  on  the 
other  hand,  it  is  held  that  objection  to  the  jurisdiction  of  a  United 
States  circuit  court  over  a  suit,  otherwise  removable,  because 
the  application  for  removal  was  not  made  in  time,  is  waived 
where  it  is  not  made  until  the  case  is  taken  to  the  supreme  court 
on  writ  of  error.^  The  application  for  removal  upon  the  ground 
of  prejudice  or  local  influence  may  be  made  at  any  time  before 
the  trial.  It  is  held,  however,  that  it  cannot  be  made  after  one 
trial  has  been  had  and  a  reversal  obtained,  and  it  is  intimated  that 
the  right  of  removal  must  be  exercised  before  or  at  the 
term  at  which  the  cause  "could  be  first  tried,  and  before  the  trial 
thereof,"  as  under  the  act  of  1875.^  Provision  is  also  made  in 
the  removal  act  for  the  filing  of  a  bond  in  certain  cases  and  a 
copy  of  the  record.^  It  has  been  held  that  the  petition  for  re- 
moval forms  part  of  the  record,  and  if  the  record,  including  the 
petition,  shows  that  the  case  is  one  of  federal  jurisdiction  it  is 
sufficient.^     But  it  is  said  that  an  additional  petition  presented 

2  Mattoon  v.  Reynolds,  62  Fed.  also  Lookout  Mountain  R.  Co.  v. 
417;  Evans  v.  Dillingham,  43  Fed.  Houston,  32  Fed.  711;  Davis  v.  Chi- 
177.  cage  &c.   R.   Co..  46  Fed.  307.     But 

3  Martin  v.  Baltimore  &c.  R.  Co..  compare  Huskins  v.  Cincinnati  &c.  R. 
151  U.  S.  673.  14  Sup.  Ct.  533,  38  L.  Co.,  Z7  Fed.  504 ;  Brodhead  v.  Shoe- 
ed.  311.  maker,  44   Fed.   518;    Slix  v.    Keith. 

4  Merchants   &c.   v.   Insurance   Co.,  90  Ala.  121,  7  So.  423. 

151  U.  S.  368.  14  Sup.  Ct.  367.  38  L.  7  1  Supp.  U.  S.  Rev.  Stat.  613.    See 

ed.  195;  Rand  v.  Walker,  117  U.  S.  Hayes  v.  Todd,  34  Fla.  233,   15   So. 

340,  6  Sup.  Ct.  769,  29  L.  ed.  907.  752;  Lucker  v.  Phoenix  &c.  Co.,  66 

5  Martin  v.  BaUimore  &c.  R.  Co.,  Fed.  161 ;  Waite  v.  Phoenix  Ins.  Co., 
151  U.  S.  673,  14  Sup.  Ct.  533,  38  L.  62  Fed.  769;  Austin  v.  Gagan,  39  Fed. 
ed.  311.  See  also  Tod  v.  Cleveland  626.  See  also  as  to  bond  and  ap- 
&c.  R.  Co.,  65  Fed.   145.  proval,  Groton  &c.  Co.  v.  American 

tiFisk  v.   Henarie.   142   U.    S.  459,       &c.  Co.,  137  Fed.  284. 
12  Sup.  Ct.  207.  35  L.  ed.  1080.     Set  ^  Supreme    Lodge    v.    Wilson.    66 


^755 


RAILROADS 


102 


to  the  federal  court  with  the  removal  papers,  alleging  facts  not 
presented  to  the  state  court,  will  not  confer  jurisdiction  on  the 
federal  court,''  although  a  petition  may  be  amended  in  the  latter 
court  so  as  to  more  fully  state  the  facts  which  appear  in  the 
record  or  upon  which  the  statements  in  the  original  petition  were 
based. ^^ 

§  755  (654).  Effect  of  application  on  jurisdiction  of  state  and 
federal  court. — When  a  proper  petition  and  bond  have  been  filed 
in  the  state  court,  it  is  the  duty  of  that  court  to  accept  the  same, 
and  all  further  proceedings  therein  are  coram  non  judice.^^  It 
has  been  held  tliat  the  filing  of  a  petition  for  removal,  without 
objecting  to  the  jurisdiction  of  the  state  court,  constitutes  a  gen- 
eral appearance  and  operates  as  a  waiver  of  defects  in  the  sum- 
mons or  service  thereof,^^  but  we  think  the  better  rule  is  that  a 


Fed.  785.  See  also  Security  Co.  v. 
Pratt,  65  Conn.  161.  32  Atl.  396;  Cre- 
hore  V.  Ohio  &c.  R.  Co.,  131  U.  S. 
240,  9  Sup.  Ct.  692,  33  L.  ed.  144. 

9  Waite  V.  Phoenix  Ins.  Co.,  62 
Fed.  769. 

10  Powers  v.  Chesapeake  &c.  R. 
Co.,  65  Fed.  129;  Carson  v.  Dunham, 
121  U.  S.  421,  7  Sup.  Ct.  1030,  30  L. 
ed.  992.  See  also  as  to  amending  pe- 
tition. Missouri  &c.  R.  Co.  v.  Chap- 
pell,  206  Fed.  688;  Kyle  v.  Chicago, 
&c.  R.  Co.,  173  Fed.  238.  Hard- 
wick  V.  Kean,  95  Ky.  563,  26  S.  W. 
589. 

11  Gordon  v.  Longest,  16  Pet.  (U. 
S.)  97,  10  L.  ed.  900;  National 
Steamship  Co.  v.  Tugman,  106  U.  S. 
118,  1  Sup.  Ct.  58,  27  L.  cd.  87; 
Hatch  V.  Chicago  &c.  R.  Co.,  6 
Blatchf.  (U.  S.  C.  C.)  105;  New  Or- 
leans &c.  R.  Co.  V.  Mississippi,  102 
U.  S.  135;  Stevens  v.  Phoenix  Ins. 
Co,.  41  N.  Y.  149;  Southern  Pac.  R. 
Co.  V.  Harrison,  73  Tex.  103,  US. 
W.  168;   Parker  v.  Clarkson,  39  W. 


Va.  184,  19  S.  E.  431 ;  Northern  Pac. 
R.  Co.  v.  McMullcn,  86  Wis.  501,  56 
N.  W.  629.  Sec  also  Chesapeake  &c. 
R.  Co.  v.  Cockrell,  232  U.  S.  146,  34 
Sup.  Ct.  278,  58  L.  ed.  544;  Steven- 
son v.  Illinois  Cent.  R.  Co..  192  Fed. 
956;  Mannington  v.  Hocking  Val. 
R.  Co.,  183  Fed.  133.  Participating 
in  proceeding  in  the  state  court 
which  persists  in  detaining  jurisdic- 
tion after  removal,  is  not  necessarily 
a  waiver  of  the  removal.  Home  &c. 
Ins.  Co.  V.  Dunn,  19  Wall.  (U.  S.) 
214;  McMullen  v.  Northern  Pac.  R. 
Co.,  57  Fed.  16;  Waite  v.  Phoenix 
Ins.  Co.,  62  Fed.  769;  Little  Rock 
&c.  R.  Co.  V.  Iredell,  50  Ark.  388,  8 
S.  W.  21  ;  Stanley  v.  Chicago  &c.  R. 
Co.,  62  Mo.  508;  Northern  Pac.  R. 
Co.  V.  McMullen,  86  Wis.  501,  56  N. 
W.  629. 

12  Wabash  Western  R.  Co.  v. 
Brow,  65  Fed.  941  (reversed,  how- 
ever, in  164  U.  S.  271.  17  Sup.  Ct. 
126)  ;  O'Donnell  v.  Atchison  &c.  R. 
Co.,  49  Fed.  689;  Farmer  v.  National 


103 


REMOVAL  OF  CAUSES 


§755 


special  appearance  for  the  purpose  of  obtaining  a  removal  does 
not  operate  as  a  general  appearance  and  w^aiver  of  such  defects. ^^ 
The  state  courts  have  generally  claimed  and  been  conceded  the 
right  to  examine  the  petition  and  record  and  determine  whether 
the  statutory  requirements  have  been  complied  with  ■,^'*  but  the 
federal  courts  are  the  final  judges  of  their  own  jurisdiction,  and 
the  decision  of  a  state  court  is  not  conclusive  as  to  such  juris- 
diction.^^ The  jurisdiction  of  the  federal  court  attaches  where 
the  suit  is  removable,  as  soon  as  the  statutory  requirements  are 
complied  with,  whether  the  state  court  makes  an  order  for  the 
removal  or  not.^^     An  order  for  the  removal  of  a  suit,  where  it 


&c.  Assn..  138  N.  Y.  265,  33  N.  E. 
1075. 

13  Goldey  v.  Morning  News,  156 
U.  S.  518,  15  Sup.  Ct.  559,  39  L.  ed. 
517;  Perkins  v.  Hendryx,  40  Fed. 
657;  Ahlhauser  v.  Butler,  50  Fed. 
705;  Garner  v.  Second  Nat.  Bank, 
66  Fed.  369;  2  Elliott  Gen.  Prac, 
§474.  Davis  v.  Cleveland  &c.  R. 
Co.,  146  Fed.  403,  holding  that  the 
removal  does  not  preclude  the  de- 
fendant from  challenging  in  the  fed- 
eral court  the  jurisdiction  of  the 
state  court  over  the  person  nor  from 
claiming  exemption  from  being  sued 
in  a  state  other  than  that  of  its  resi- 
dence. See  also  Wabash  &c.  R.  Co. 
v.  Brow.  164  U.  S.  271,  17  Sup.  Ct. 
126,  41  L.  ed.  431;  R.  J.  Darnell 
Inc.  V.  Illinois  Cent.  R.  Co.,  190  Fed. 
656;  Murray  v.  Wilcox,  122  Iowa 
188,  97  N.  W.  1087,  64  L.  R.  A.  534, 
101  Am.  St.  263. 

i^Burlington  &c.  R.  Co.  v.  Dunn, 
122  U.  S.  513,  7  Sup.  Ct.  1262,  30  L. 
ed.  1159;  Beadleston  v.  Harpending, 
32  Fed.  644 ;  Roberts  v.  Chicago  &c. 
R.  Co.,  45  Fed.  433 ;  Missouri  &c.  R. 
Co.  v.  Chappell,  206  Fed.  688;  Cars- 
well  V.  Schley,  59  Ga.  17;  Baltimore 
&c.  R.  Co.  V.  New  Albany  &c.  R.  Co., 
53  Ind.  597 ;  Burch  v.  Davenport  &c. 
R.    Co..   46   Iowa   449,   26  Am.   Rep. 


ISO;  Larson  v.  Cox,  39  Kans.  631, 
18  Pac.  892;  Broadway  Nat.  Bank 
V.  Adams,  130  Mass.  431 ;  Hurst  v. 
Southern  R.  Co..  162  N.  Car.  368. 
78  S.  E.  434. 

15  Barrow  v.  Hunton.  99  U.  S.  80, 
25  L.  ed.  407 ;  Baltimore  &c.  R.  Co.  v. 
Koontz,  104  U.  S.  5,  26  L.  ed.  643; 
Marshall  v.  Holmes,  141  U.  S.  589, 
12  Sup.  Ct.  62,  35  L.  ed.  870;  Home 
&c.  Ins.  Co.  V.  Dunn,  19  Wall.  (U. 
S.)  214;  Wilson  v.  Western  Union 
Tel.  Co.,  34  Fed.  561;  Knahtla  v. 
Oregon  &c.  R.  Co.,  21  Ore.  136,  27 
Pac.  91. 

16  Kern  v.  Huidekoper,  103  U.  S. 
485.  26  L.  ed.  354;  Fisk  v.  Union 
Pac.  R.  Co..  6  Blatchf.  (U.  S.  C.  C.) 
362 ;  Chattanooga  &c.  R.  Co.  v.  Cin- 
cinnati &c.  R.  Co..  44  Fed.  456;  Wills 
v.  Baltimore  &c.  R.  Co.,  65  Fed.  532 ; 
Shepherd  v.  Bradstreet  Co.,  65  Fed. 
142 ;  Mutual  L.  Ins.  Co.  v.  Langley, 
145  Fed.  415;  Hubbard  v.  Chicago 
&c.  R.  Co..  176  Fed.  241;  Hayes  v. 
Todd,  34  Fla.  233,  15  So.  752;  St. 
Anthony  &c.  Co.  v.  King  &c.  Co., 
23  Minn.  186,  23  Am.  Rep.  682 ;  State 
V.  Johnston.  234  Mo.  338,  137  S.  W. 
595 ;  McNeal  &c.  Co.  v.  Howland  &c. 
Co..  99  N.  Car.  202,  5  S.  E.  745,  6 
Am.   St.   513. 


§755 


RAILROADS 


104 


may  be  remanded,  merely  suspends  the  jurisdiction  ut  the  state 
court,  and,  if  the  federal  court  remands  the  case,  that  jurisdiction 
will  be  resumed.^''  The  general  subject  of  this  section  was 
under  consideration  by  the  Supreme  Court  of  the  United  States 
in  a  recent  case,  and  certain  ])ro])(isitions  were  said  to  be  well 
settled.  We  quote  from  the  decision  the  statement  of  the  pro- 
positions and  the  authorities  cited  in  the  note  below. ^^ 


17  Young  V.  Parker,  132  U.  S.  267, 
10  Sup.  Ct.  75,  33  L.  cd.  352;  South- 
ern Pac.  R.  Co.  V.  Superior  Court, 
63  Cal.  607 ;  Wright  v.  Giles,  60  Tex. 
Civ.  App.  550,  129  S.  W.  1163. 

18  The  case  to  which  we  refer  is 
Madisonville  Traction  Co.  v.  St. 
Bernard  &c.  Co.,  196  U.  S.  239,  25 
Sup..  Ct.  251,  253.  49  L.  ed.  462. 
where  the  court  says  that  the  fol- 
lowing propositions  are  well  settled : 
"1.  If  the  case  be  a  removable 
one ;  that  is,  if  the  suit,  in  its  na- 
ture, be  one  of  which  the  circuit 
court  could  rightfully  take  jurisdic- 
tion, then,  upon  the  fiing  of  a  peti- 
tion for  removal,  in  due  time,  with  a 
sufficient  bond,  the  case  is,  in  law, 
removed,  and  the  state  court  in 
which  it  is  pending  will  lose  juris- 
diction to  proceed  further,  and  all 
subsequent  proceedings  in  that  court 
will  be  void.  New  Orleans,  M.  &  F. 
R.  Co.  v.  Mississippi,  102  U.  S.  135, 
141,  26  L.  ed.  96,  98;  Baltimore  &c. 
R.  Co.  v.  Koontz,  104  U.  S.  5,  14, 
26  L.  ed.  643,  645 ;  National  S.  S.  Co. 
v.  Tugman.  106  U.  S.  118,  122,  1 
Sup.  Ct.  58,  27  L.  ed.  87.  89;  St. 
Paul  &c.  R.  Co.  v.  McLean,  108  U. 
S.  212,  216,  2  Sup.  Ct.  498,  27  L.  ed. 
703,  704;  Crehore  v.  Ohio  &c.  R. 
Co.,  131  U.  S.     240,  243,  9  Sup.  Ct. 


692,  797,  33  L.  cd.  354,  357:  Marshall 
V.  Holmes,  141  U.  S.  589.  595,  12  Sup. 
Ct.  62,  35  L.  ed.  870.  872.     2.  After 
the  presentation  of  a  sufficient  peti- 
tion and  bond  to  the  state  court  in  a 
removable   case,   it   is   competent   for 
the  circuit  court,  by  a  proceeding  an- 
cillary  in   its   nature — without  violat- 
ing   §  720    of    the    Revised    Statutes 
(U.  S.  Comp.  Stat.  1901,  p.  581)   for- 
bidding a  court  of  the  United  States 
from     enjoining     proceedings     in     a 
state    court — to     restrain    the     party 
against  whom  a  cause  has  been  legal- 
ly    removed     from     taking     further 
steps  in  the  state  court.     French  v. 
Hay,  22  Wall.  (U.  S.)  252,  22  L.  ed. 
857;  Dietzsch  v.  Huidekoper.  103  U. 
S.  494,  496,  497,  26  L.  ed.  497,  498; 
Moran    v.    Sturgess,    154   U.    S.   256, 
270,  14  Sup.  Ct.  1019,  38  L.  ed.  981, 
985.      See    also    Sargent    v.    Helton, 
115  U.  S.  352,  6  Sup.  Ct.  78,  29  L.  ed. 
413;    Harkrader   v.    Wadley,    172    U. 
S.  165,  19  Sup.  Ct.  119,  43  L.  ed.  405; 
Gates  v.  Bucki,  12  U.  S.  69,  53  Fed. 
969;  Texas  &c.  R.   Co.  v.  Kuteman, 
13  U.  S.  99,  54  Fed.  551 ;  Wbitelaw, 
Re,  71  Fed.  733,  738;  Iron  Mountain 
R.    Co.    V.    Memphis,    96    Fed    131; 
James  v.  Central  Trust  Co.,  98  Fed. 
489.       3.  It    is    well    settled    that    if, 
upon  tlio   face  of  the  record,  includ- 


105 


REMOVAL  OF  CAUSES 


§756 


§  756  (655).  Remanding  and  dismissing  cause, — The  last  re- 
moval act  specifically  provides  for  remanding  suits  removed  on 
the  ground  of  prejudice  or  local  influence  as  to  defendants  not 
affected  thereby,  where  such  suits  can  be  fully  and  justly  deter- 
mined as  to  them  in  the  state  court. ^^  It  is  also  provided  gener- 
ally that,  "if  in  any  suit  commenced  in  a  district  court, 
or  removed  from  a  state  court  to  a  district  court  of  the 
United  States,  it  shall  appear  to  the  satisfaction  of  the  said 
district  court,  at  any  time  after  such  suit  has  been  brought  or 
removed  thereto,  that  such  suit  does  not  really  and  substantially 
involve  a  dispute  or  controversy  properly  within  the  jurisdic- 
tion of  said  district  court,  or  that  the  parties  to  said  suit  have 
been  improperly  or  collusively  made  or  joined,  either  as  plaintiffs 
or  defendants,  for  the  purpose  of  creating  a  case  cognizable  or  re- 
movable under  this  chapter,  the  said  district  court  shall  proceed 
no  further  therein,  but  shall  dismiss  the  suit  or  remand  it  to  the 
court  from  Avhich  it  was  removed  as  justice  may  require,  and 
shall  make  such  order  as  to  costs  as  shall  be  just."20  Objections 
appearing  upon  the  face  of  the  record  should  be  taken  advan- 


ing  the  petition  for  removal,  a  suit 
does  not  appear  to  be  a  removable 
one,  then  the  state  court  is  not  bound 
to  surrender  its  jurisdiction,  and  may 
proceed  as  if  no  application  for  re- 
moval had  been  made.  Stone  v. 
South  Carolina,  117  U.  S.  430,  432,  6 
Sup.  Ct.  799,  29  L.  ed  962,  963 ;  Car- 
son V.  Hiatt.  118  U.  S.  279,  281,  6 
Sup.  Ct.  1050,  30  L.  ed.  167,  168; 
Burlington  &c.  R.  Co.  v.  Dunn,  122 
U.  S.  513,  515,  7  Sup.  Ct.  1262,  30 
L.  ed.  1159,  1160." 

iSBarnes'  Fed.  Code,  §  790. 

20 Barnes"  Fed.  Code  §  799.  See  also 
Williams  v.  Nottawa,  104  U.  S.  209, 
26  L.  ed.  719;  Ayers  v.  Wis  wall,  112 
U.  S.  187,  5  Sup.  Ct.  90,  28  L.  ed. 
694 ;  Graves  v.  Corbin,  132  U.  S.  571, 
10  Sup.  Ct.  196,  33  L.  ed.  462 ;  Penn- 
sylvania R.  Co.  v.  Allegheny  &c.  R. 


Co.,  25  Fed.  113;  Hablin  v.  Chicago 
&c.  R.  Co.,  43  Fed.  401 ;  Shepherd  v. 
Bradstreet,  65  Fed.  142.  The  court 
may  also  remand  the  suit  for  failure 
to  file  a  transcript  of  the  record  in 
time,  but  this  seems  to  be  largely 
discretionary  with  the  court.  St. 
Paul  &c.  R.  Co.  V.  McLean,  108  U.  S. 
212,  2  Sup.  Ct.  498,  27  L.  ed.  703; 
Jackson  v.  Mutual  L.  Ins.  Co.,  3 
Woods  cU.  S.)  413;  Lucker  v. 
Phoenix  &c.  Co.,  66  Fed.  161 ;  Texas 
&c.  Co.  V.  Seeligson,  122  U.  S.  519, 
7  Sup.  Ct.  1261,  30  L.  ed.  1150;  Re- 
moval Cases,  100  U.  S.  457,  25  L.  ed. 
593.  See  generally  as  to  when  the 
case  should  be  remanded,  Dishon  v. 
Cincinnati  &c.  R.  Co.,  133  Fed.  471; 
Mystic  Milling  Co.  v.  Chicago  &c. 
R.  Co.,  132  Fed.  289. 


§756 


RAILROADS 


106 


tage  of  by  motion  to  remand,2i  and  a  party  by  going  to  trial 

without  objection,  or  even  ])y  undue  delay,  must  waive  his  right 
to  have  the  cause  remanded  on  accdunt  of  mere  irregularities, 
such  as  the  failure  to  file  the  petition  for  removal  in  time,  or  the 
like.--  lUit  it  is  said  that  when  the  record  on  its  face  shows 
that  the  court  has  jurisdiction,  the  want  of  jurisdiction  should  be 
shown  by  plea  in  abatement.--^  The  court,  of  its  own  motion, 
should  remand  the  cause  where  it  appears  that  it  has  no  juris- 
diction because  the  case  is  not  one  of  federal  cognizance,  and 
this  objection,  unlike  that  based  upon  a  mere  irregularity,  is 
not,  therefore,  waived  by  the  failure  to  make  it  in  the  first 
instance-^-i     It  has  been  held  that  a  case  which  has  been  properly 


21  Martin  v.  Baltimore  &c.  R.  Co., 
151  U.  S.  673,  14  Sup.  Ct.  533,  38  L. 
ed.  311;  Hoyt  v.  Wright,  4  Fed.  168; 
Newman  v.  Schwcrin,  61  Fed.  865 ; 
Tod  V.  Cleveland  &c.  R.  Co.,  65  Fed. 
145.  See  also  Armstrong  v.  Kansas 
City  &c.  R.  Co.,  192  Fed.  608. 

22  French  v.  Hay,  22  Wall.  (U. 
S.)  238,  22  L.  ed.  801;  Ayres  v. 
Watson,  113  U.  S.  594,  5  Sup.  Ct. 
641,  28  L.  ed.  1093;  Carrington  v. 
Florida  &c.  R.  Co.,  9  Blatchf.  (U.  S.) 
467;  Baltimore  &c.  R.  Co.  v.  Ford, 
35  Fed.  170;  Wyly  v.  Richmond  &c. 
R.  Co.,  63  Fed.  487;  Martin  v.  Bal- 
timore &c.  R.  Co..  151  U.  S.  673,  14 
Sup.  Ct.  533,  38  L.  cd.  311.  See  also 
Hagerla  v.  Mississippi  River  Power 
Co.,  202  Fed.  776. 

23  Hoyt  V.  Wright,  1  McCrary  (U. 
S.)  130;  Clarkhufif  v.  Wisconsin  &c. 
R.  Co.,  26  Fed.  465 ;  Rumsey  v.  Call, 
28  Fed.  769.  Sec  also  Coal  Co.  v. 
Blatchford,  11  Wall.  (U.  S.)  172, 
20  L.  ed.  179.  The  burden  of  proof 
is  upon  the  petitioner,  and  if  it  does 
not  clearly  appear  that  the  federal 
court  has  jurisdiction,  the  cause 
should  be  remanded.     Carson  v.  Dur- 


ham, 121  U.  S.  421,  7  Sup.  Ct.  1030, 
30  L.  cd.  992;  Fitzgerald  v.  Missouri 
Pac.  R.  Co.,  45  Fed.  812;  Wolflf  v. 
Archibald,    14   Fed.   369. 

24  Mansfield  &c.  R.  Co.  v.  Swan, 
111  U.  S.  379,  4  Sup.  Ct.  510,  28  L. 
ed.  462 ;  Cameron  v.  Hodges,  127  U. 
S.  322,  8  Sup.  Ct.  1154,  1156,  32  L. 
ed.  132;  Jackson  v.  Allen,  132  U.  S. 
27,  10  Sup.  Ct.  9,  Zi  L.  ed.  249; 
Bronson  v.  St.  Croi.N;  Lumber  Co.,  35 
Fed.  634;  Ferguson  v.  Ross,  38  Fed. 
161 ;  Frisbie  v.  Chesapeake  &c.  R. 
Co.,  57  Fed.  1 ;  Brice  v.  Sommers,  8 
Chicago  Leg.  News  290.  See  also 
Crane  Co.  v.  Guanica  Centrale,  132 
Fed.  713.  The  Supreme  Court  on 
reversal  of  a  suit  because  tlie  cir- 
cuit court  did  not  have  jurisdiction 
on  removal,  will  direct  the  circuit 
court  to  remand  it  to  the  state 
court,  without  allowing  any  amend- 
ment of  the  petition  for  removal  in 
the  circuit  court.  Crehore  v.  Ohio 
&c.  R.  Co.,  131  U.  S.  240,  9  Sup. 
Ct.  692,  Zi  L.  ed.  144;  Hancock  v. 
Holbrook,  112  U.  S.  229,  5  Sup.  Ct. 
115,  28  L.  ed  714;  Jackson  v.  Allen, 
132  U.  S.  27,  10  Sup.  Ct.  9,  2,3  L.  ed. 
249. 


107  REMOVAL    OF    CAUSES  §  757 

removed  cannot  be  remanded  by  consent.-^  The  state  court  can- 
not review  the  action  of  the  federal  court  in  remanding  the  suit,-^ 
and  no  appeal  or  writ  of  error  lies  from  the  order  of  the  circuit 
court  remanding-  the  suit.^'^ 

§757  (655a).  Remanding — Amendment — Waiver. — Where  a 
cause  has  been  removed  from  a  state  court  to  a  federal  court  on 
the  ground  of  diverse  citizenship  and  a  motion  to  remand  is  made 
on  the  ground  that  the  plaintiff  sues  as  an  assignee  of  a  chose 
in  action  and  that  the  petition  for  removal  does  not  show  the 
citizenship  of  the  assignor,  the  court  may  permit  such  petition 
to  be  amended  so  as  to  show,  in  accordance  with  the  fact,  that 
the  citizenship  of  the  assignors  was  such  as  to  give  jurisdic- 
tion.-§  Defects  in  the  petition  for  removal  in  matter  of  form 
may  sometimes  be  waived  by  appearing  and  making  an  issue 
without  objection  on  that  ground.  Thus,  it  is  held  in  a  recent 
case  that  merely  formal  defects,  such  as  that  the  petition  is 
signed  by  attorneys  of  another  state  and  not  by  attorneys  ad- 
mitted to  practice  in  the  court  in  which  it  is  filed,  are  waived  by 
appearing  in  the  federal  court  and  moving  to  remand  on  another 
ground,  namely,  that  the  alleged  cause  for  removal  does  not 
exist.-'J  So  it  has  been  held  that  distinct  and  unambiguous  al- 
legations in  the  petition  for  removal,  not  denied  in  any  pleading 

25Lawton   v.    Blitch,    30   Fed.   641.  ed.    212;    Richmond    &c.    R.    Co.    v. 

But    see    Southwestern    Tel.    &c.    Co.  Thouron,   134  U.   S.  45,   10  Sup.   Ct. 

V.   Shirley    (Tex.   Civ.  App.),   155   S.  517,    33    L.     ed.    871;    Birdseye    v. 

W.   663;   Wadleigh   v.    Standard   &c.  Schaefifer,  140  U.  S.  117,  11  Sup.  Ct. 

Ins.  Co.,  76  Wis.  439,  45  N.  W.  109.  885,  35  L.  ed.  402 ;  May  v.  State  Nat. 

26Tilley    V.    Cobb,    56    Minn.    295,  Bank.    59    Ark.    614,    28    S.    W.   431. 

57    N.    W.    799 ;    Fitzgerald    v.    Fitz-  2S  Muller    v.    Chicago    &c.   R.    Co., 

gerald  &c.   Co.,  44  Nebr.  463,  62  N.  149  Fed.  939. 

W.  899.     See  also  Queen  Ins.  Co.  v.  29  Tomson     v.     Iowa     &c.     Assn. 

Peters.    10    Ga.    App.    289,    11    S.    E.  (Nebr.),    110   N.   W.   997.     See    also 

535  Gerling  v.  Baltimore  &c.  R.  Co.,  151 

27  Morey   v.    Lockhart,    123    U.    S.  U.  S.  673,  14  Sup.  Ct.  533,  38  L.  ed. 

56,  8  Sup.  Ct.  65,  31  L.  ed.  68;  Bur-  311;    Ayres    v.    Watson,    113    U.    S. 

lington  &c.  R.  Co.  v.  Dunn,   122  U.  594,  5   Sup.  Ct.  641,  28  L.  ed.   1093; 

S.    513,    7    Sup.    Ct.    1262,    30   L.    ed.  Bryant    Bros.    Co.    v.    Robinson,    149 

1150;    Chicago    &c.    R.    Co.   v.    Gray,  Fed.  321. 
131  U.  S.  396,  9  Sup.  Ct.  793,  ZZ  L. 


§  758  KAILRO.\DS  108 

of  the  plaintiff  or  put  in  issue  by  him,  nor  contradicted  by  the 
record,  are  to  be  taken  as  true  on  a  motion  to  remand,  or  other 
proceeding  challenging  tiie  jurisdiction  of  the  federal  court."^" 
Where,  after  removal,  a  rule  was  granted  in  the  federal  court 
against  the  plaintiff  to  show  cause  why  the  case  should  not 
proceed,  it  was  held  that,  although  his  counsel  had  been  negli- 
gent, the  federal  court  was  not  authorized  to  enter  a  non-suit 
and  dismissal  and  judgment  and  execution  for  costs,  but  could 
only  dismiss  the  proceedings  and  remand  to  the  state  court. ^^ 
As  a  general  rule,  where  the  jurisdiction  of  the  federal  court  is 
doubtful,  and  that  of  the  state  court  is  unquestionable,  the 
federal  court  will  remand  the  case.^^  Mandamus,  rather  than 
prohibition,  has  been  held  to  be  the  proper  remedy  where  the 
federal  circuit  court  refused  to  remand  to  the  state  court  a  case 
over  which  such  federal  court  had  no  jurisdiction.'"'  but  the 
broad  doctrine  of  the  case  cited  has  lately  been  qualified  and 
limited  and  it  is  now  held  that  mandamus  is  not,  ordinarily,  the 
proper  remedy.^'* 

§  758  (656).  Pleading  and  practice  in  federal  court  after  re- 
moval.— It  is  not  necessary  to  file  new  pleadings  in  the  circuit 
court  after  removal,  if  the  pleadings  filed  in  the  state  court  are 
in  proper  condition  for  the  trial  of  the  issue  between  the  par- 
ties.25  The  general  rule  is  that  no  repleader  is  necessary  if  the 
action  is,  in  its  nature,  a  common-law  action  ;^^  but  if  'cgal  and 

30  Commonwealth    v.    Powers,    139  198;   Groel  v.  United  Elec.   Co.,   132 

Fed.  452  (reversed  on  other  grounds  Fed.   253,   265;   Nash   v.    McNamara, 

in  201  U.  S.  1,  26  Sup.  Ct.  387).    See  145   Fed.    541;    Western   Union   Tel. 

also  Phillips  v.  Western  Terra  Cotta  Co.  v.  Louisville  &c.  R.  Co..  201  Fed. 

Co.,  174  Fed.  873;  Dishon  v.  Cincin-  932. 

nati  &c.  R.  Co.,  133  Fed.  471  ;  Lane  3.->  Ex  parte  Wisner.  203  U.  S.  ^49. 

Bros.    Co.   V.    Rickard,    135    Ga.  650,  27  Sup.   Ct.   150,   51   L.   ed.   264. 

70  S.  E.  565.  Ann.  Cas.  1912A,  234.  3-t  Ex   parte    Harding,    219    U.    S. 

•31  Dawson     v.     Kinney,     144    Fed.  363,   31    Sup.   Ct.   150,  55   L.  ed.  252, 

710.  i7  L.  R.  A.   (N.   S.)   392. 

3-'  Kessinger  v.  VanNatta,  27  Fed  3.5Gridley  v.   Westbrook,  23   How. 

890;   Fitzgerald  v.   Missouri   Pac.   R.  ( U.  S.)  218,  3  Cent  L.  J.  13;  Detroit 

Co.,  45  Fed.  812,  820;  Ernst  v.  Am-  v.  Detroit  City  R.  Co.,   55  Fed.  569. 

erican   &c.   Co.,   114  Fed.  981;    Dod<l  •:•!  Thompson    v.    Railroad    Compa- 

v.   Louisville  &c.   Co.,   130  Fed.   186,  nies,  6  Wall.  (U.  S.)   134;  Partridge 


109 


REMOVAL    OF    CAUSES 


§758 


equitable  causes  of  action  or  defenses  are  united  under  the  state 
practice  a  suit  may  be  recast  or  separated  into  an  action  at  law 
and  a  suit  in  equity,^"  and  a  repleader  is  usually  necessary.^s 
The  rules  of  practice  in  the  federal  court  govern  the  case,  in 
general,  after  its  removal  ;3^  but  the  federal  district  courts,  on 
the  law  side,  are  bound  to  follow  the  state  practice  "as  near  as 
may  be"  in  most  respects,  and  it  has  been  held  that  where  a 
receiver-  appointed  by  a  federal  court,  on  being  sued  in  a  state 
court  as  authorized  by  the  recent  Act  of  Congress,  removes  the 
suit  to  the  feder-al  court,  the  plaintifif  is  entitled  to  a  trial  by  jury 
if  he  would  have  been  entitled  to  such  a  trial  in  the  state  court.'*'^ 
So,  as  a  general  rule,  the  federal  district  court  will  follow  the 
rulings  of  the  state  court  made  in  the  case  before  its  removal.'*^ 
Where  service  of  summons  has  been  set  aside  in  the  federal 
court  after  removal,  on  motion  of  the  defendant,  the  court  may 
permit  the  plaintifT  to  file  an  amended  petition  and  order  sum- 
mons to  issue  thereon  in  a  proper  case.^-    And  where  a  cause  is 


V.  Phoenix  &c.  Ins.  Co.,  15  Wall. 
(U.  S.)  573;  Dart  v.  McKinney,  9 
Blatchf.  (U.  S.  C.  C.)  359;  Bills  v. 
New  Orleans  &c.  R.  Co.,  13  Blatchf. 
(U.  S.)  227;  West  v.  Smith,  101  U. 
S.  263,  25  L.  ed.  809.  But  court  may 
permit  amended  pleading  to  be  filed. 
United  States  &c.  Co.  v.  Board,  145 
Fed.  144. 

37  Fisk  V.  Union  Pac.  R.  Co.,  8 
Blatchf.  (U.  S.  C.  C.)  299;  Perkins 
V.  Hendryx,  23  Fed.  418;  Lecroix  v. 
Lyons,  27  Fed.  403.  See  Northern 
Pac.  R.  Co.  V.  Paine,  119  U.  S.  561, 
7  Sup.  Ct.  323,  30  L.  ed.  513.  See 
also  Utah  &c.  Co.  v.  De  Lamar,  145 
Fed.  505. 

38  Hurt  V.  HolHngsworth,  100  U. 
S.  100,  25  L.  ed.  569;  Whittenton  &c. 
Co.  V.  Memphis  &c.  R.  Co.,  19  Fed.  ' 
273;  La  Mothe  &c.  Co.  v.  National 
Tube  Works,  15  Blatchf.  (U.  S.) 
432. 


39Henning  v.  Western  Union  Tel 
Co.,  40  Fed.  658;  Hitchings  v.  Co- 
balt &c.   Mines   Co.,   189  Fed.  241. 

40  Vany  v.  Receiver  of  Toledo  &c. 
R.  Co.,  67  Fed.  379.  See  also  North 
Alabama  &c.  Co.  v.  Orman,  55  Fed. 
18. 

41  Bryant  v.  Thompson,  27  Fed. 
881;  Davis  v.  St.  Louis  &c.  R.  Co., 
25  Fed.  786;  Duncan  v.  Gegan,  101 
U.  S.  810,  25  L.  ed.  875.  But  see 
Spring  Co.  v.  Knowlton,  103  U.  S. 
49,  26  L.  ed.  347.  It  may  act  on 
motions  pending  in  the  state  court 
at  time  of  removal.  Mannington  v. 
Hocking  Val.  R.   Co.,   183  Fed.   133. 

42  United  States  Fidelity  &c.  Co.  v. 
Board,  145  Fed.  144.  Denial  by  in- 
ferior state  court  of  motion  to  va- 
cate service  of  summons  is  not  res 
judicata  on  questions  of  validity  of 
the    service    when    raised    in    federal 


^759  RAILROADS  110 

removed  in  which  the  state  court  was  competent  to  grant  either 
egal  or  equitable  relief  the  plaintiff  may  elect  to  proceed  in  the 
federal  court  either  at  law  or  in  equity,  but  if  he  elects  to  proceed 
in  equity  and  no  case  for  equitable  relief  is  made  the  federal 
court  cannot  retain  and  try  the  case  as  an  action  at  law.^^ 

§  759  (656a).  Recent  cases — Miscellaneous. — A  suit  by  a  city 
to  restrain  a  telctiraph  company  from  doing  intrastate  business 
in  the  city  without  paying  a  license  tax  required  by  ordinance 
prescribing  a  fine  for  so  doing  has  been  held  not  to  be  a  suit  of 
a  cWil  nature  and  therefore  not  removable.'*'*  lUit  a  proceeding 
in  garnishment  after  judgment,  under  the  Washington  statute 
has  been  held  to  be  a  civil  suit  in  which  an  issue  of  fact  is,  or  may 
be,  joined  between  the  plaintiff  and  garnishee,  and  removable 
by  a  non-resident  garnishee,  where  the  jurisdictional  requisites 
appear,  although  the  parties  to  the  judgment  are  citizens  of  the 
same  state. ^^  As  already  stated,  the  general  rule  is  that  a  case 
not  depending  on  diversity  of  citizenship  cannot  be  removed  as 
arising  under  the  constitution  or  laws  of  the  United  States  unless 
the  same  appears  from  plaintiff's  statement  of  his  cause  of  ac- 
tion ;  and  where  the  petition  alleged  a  cause  of  action  both  under 
a  federal  statute  and  under  a  state  law  it  was  held  for  the  court 
to  determine  under  which  the  action  was  maintainable,  if  at 
all,  on  petition   to  remove   to  the  federal   court. ^*^      In   a   recent 

court   after   removal.     Remington   v.  construction    of    the    federal    statute 

Central    Pac.   R.    Co.,    198   U.    S.   95,  would  defeat  a  recovery  and  another 

25  Sup.  Ct.  577,  49  L.  ed.  959.     See  sustain  it,  under  that  statute,  the  ac- 

also    Mechanical    Appliance     Co.     v.  tion   would   be   one   arising   under   a 

Castleman,  215  U.  S.  437,  30  Sup.  Ct.  law  of  the  United  States,  and  there- 

125,  54  L.  ed.  272.  fore    of    federal    cognizance.      Citing 

43  Union  Stock  Yards  Co.  v.  Nash-  Starin  v.  New  York,  115  U.  S.  248, 
ville  Packing  Co.,  140  Fed.  701.  See  6  Sup.  Ct.  28,  29  L.  ed.  388;  Carson 
also  Thompson  v.  Railroad  Co.,  6  v.  Dunham,  121  U.  S.  421,  7  Sup. 
Wall.   (U.  S.)   134.  Ct.    1030,    30   L.    ed.   992.      See    also 

44  City  of  Montgomery  v.  Postal  that  right  must  appear  from  plain- 
Tel.  &c.,  218  Fed.  471,  tiff's    own    statement    in    his    hill    or 

4'''  Baker  v.   Dunwamish   Mill    Co.,  declaration.       Cella    v.     Rrown.     144 

149  Fed.  612.  Fed.  742;  Mitchell  &c.  Co.  v.  Worth- 

46  Hall  V.  Chicago  &c.  R.  Co.,  149  ington,  140  Fed.  947. 
Fed.    564,    also    holding    that    if    one 


Ill  REMOVAL    OF    CAUSES  §  759 

case  it  is  held  that  even  if  an  allegation  in  the  complaint  of  a 
switchman  against  a  railroad  company,  that  the  "cars  in  use  on 
defendant's  said  railway,  and  particularly  the  cars  on  which 
plaintiff  was  injured,  were  not  properly  equipped  with  auto- 
matic couplers,  as  required  by  law,"  necessarily  implied  a  reli- 
ance on  the  Act  of  Congress,  requiring  automatic  couplers,  still 
a  removable  case  is  not  made  out,  sections  1  and  2  of  the  act  of 
March  2,  1893,  in  regard  to  safety  appliances  showing  it  applies 
only  to  carriers  engaged  in  interstate  commerce,  and  neither  the 
complaint  in  the  case,  nor  the  petition  for  removal  showing  that 
defendant  was  so  engaged,  nor  that  the  cars  in  question 
were  being  used  in  such  commerce.^^  In  several  other  Texas 
cases  it  has  been  held  that  joint  petitions  of  defendants  would 
not  justify  a  removal  under  the  facts  shown.'*^  But  it  is  held 
in  a  recent  South  Carolina  case  that  both  defendants  must  join 
in  a  petition  to  remove  an  action  against  them  for  a  joint  tort 
on  the  ground  that  they  are  non-residents,  and  that  a  petition  by 
one  of  them,  on  the  ground  of  non-residence,  alleging  that  the 
other  defendant  is  a  sham  defendant,  joined  to  prevent  removal, 
is  insufficient.'*^     A  lessee  under  a  long  term  lease  of  a  railroad, 

4  7  International   &c.   R.    Co.  v.    El-  separable   controversy  and  as  to  the 

der,  44  Tex.  Civ.  App.  605,  99  S.  W.  right    of    removal    where    employer 

856.  and    employe    are    joined,    Louisville 

48  Texas  &c.  R.  Co.  v.  Huber,  100  &c.  R.  Co.  v.  Vincent,  116  Tenn.  317, 

Tex.    1,    92    S.    W.    832;    Eastin    v.  95   S.   W.   179;   Atlantic   Coast   Line 

Knox  &c.  R.  Co.    (Tex.),  92   S.  W.  R.  Co.  v.  Bailey,  151  Fed.  891;  Chi- 

838.  cago   &c.   R.   Co.  v   Stepp,   151   Fed. 

•iOBaber    v.    Southern  R.    Co.    (S.  908;  Southern  R.  Co.  v.  Grizzle,  124 

Car.),  56  S.  E.  540.     See  also  Black-  Ga.   735,   53   S.   E.   244;   Lanning  v. 

burn  V.  Blackburn.  142  Fed.  901.    But  Chicago  &c.  R.  Co.,  196  Mo.  647,  94 

see     Eastin    v.     Knox     &c.     R.     Co.  S.  W.  491.    For  an  action  by  an  em- 

(Tex.),  92  S.  W.  838;  Iowa  &c.  Co.  ploye  against   lessor  and  lessee   held 

V.   Bliss,   144  Fed.  446;   Slaughter  v.  removable,    see    Curtis    v.    Cleveland 

Nashville    &c.    R.    Co.    (Ky.),   91    S.  &c.   R.    Co.,    140   Fed.   W.   See   gen- 

W.  744.     In  the  Kentucky  case  just  erally  Chicago  &c.  R.  Co.  v.  Martin. 

cited   the   action   was  against   a   rail-  178  U.   S.  245,  20  Sup.   Ct.   1055,   44 

road    company    and    its    trainmaster,  L.  ed.  1055 ;  Cochran  v.  Montgomery 

but  a  good  cause  of  action  was  not  Count}',    199  U.   S.  260,   26   Sup.   Ct. 

stated     as     against     the     trainmaster.  58,   50  L.  ed.   182. 
See    also    as    to    whether    there   is    a 


§759 


RAILROADS 


112 


assuming-  all  llic  lessor's  obligations,  has  been  held  the  real  party 
to  a  suit  to  compel  a  grant  of  switch  connection  in  accordance 
with  a  stipulation  in  the  grant  of  the  right  of  way,  and  entitled 
to  intervene  and  remove  the  cause  to  the  federal  court  on  the 
ground  that  the  lessee  is  a  citizen  of  another  state. ^°  An  alien 
non-resident  cannot  successfully  claim  the  privilege  of  removing 
an  action  commenced  against  him  in  a  state  court.^^  The  amount 
in  controversy  must  be  sufficient  or  there  can  be  no  removal. ^- 
The  petition  for  removal  must  be  filed  in  due  time  r*^  but  it  is 
held  that  the  right  of  removal  arises  at  any  time,  during  the 
progress  of  a  case,  when,  by  a  change  in  the  pleadings  or  pro- 
ceedings, the  cause  is  first  rendered  removable.'-*  The  case  made 
by  the  plaintiffs  petition  or  complaint  as  it  stood  at  the  time  of 
the  petition  for  removal  is  usually,  however,  the  test  of  the 
right  to  remove. ^^    Questions  as  to  the  necessity  for  filing  bond 


50  Chase  v.  Beech  Creek  R.  Co., 
144  Fed.  571.  But  see  as  to  parties 
brought  in  by  cross-complaint  and 
succeeding  to  rights  of  plaintiff, 
Nash  V.  McNamara,  145  Fed.  541. 

51  O'Conor  v.  State,  202  U.  S.  501, 
26  Sup.  Ct.  726,  50  L.  ed.  1120.  See 
also  Adzenoska  v.  Erie  R.  Co.,  210 
Fed.  553;  Colosino  v.  Pittsburg  &c. 
R.  Co.,  210  Fed.  550.  But  compare 
Smellie  v.  So.  Pac.  Co.,  197  Fed. 
641 ;  Attleboro  Mfg.  Co.  v.  Frank- 
fort &c.  Ins.  Co.,  202  Fed.  293; 
Roner  v.  Katalla  Co.,  182  Fed.  946; 
Best  V.  Great  Northern  Ry.  Co.,  243 
Fed.  789.  (May  claim  removal  where 
he  lives  in  the  state.) 

52  Nashville  &c.  R.  Co.  v.  Hill,  146 
Ala.  240,  40  So.  612 ;  Barber  v.  Bos- 
ton &c.  R.  Co.,  145  Fed.  52;  Bara- 
taria  Canning  Co.  v.  Louisville  &c. 
R.  Co.,  143  Fed.  113.  But,  as  al- 
ready shown,  this  is  usually  to  be 
determined  from  the  complaint,  dec- 
laration, or  bill.  Ante,  §  748.  See 
also  Roessler-Hasslacher  &c.  Co.  v. 
Doyle,  142  Fed.  118;   City  of  Mem- 


phis v.  Postal  Tel.  &c.  Co.,  145  Fed. 
602 ;  South  Dakota  &c.  R.  Co.  v.  Chi- 
cago &c.  R.  Co.,  141  Fed.  578 ;  South- 
ern Cash  &c.  Co.  V.  National  &c.  Co. 
143  Fed.  659.  As  to  evidence  held 
sufficient  to  show  that  employe  was 
made  defendant  for  sole  purpose  of 
preventing  removal,  and  right  to  in- 
quire into  same,  see  Wecker  v.  Na- 
tional Enameling  &c.  Co.,  204  U.  S. 
176,  27  Sup.   Ct.  184,  51   L.  ed.   430. 

53  Bryson  v.  Southern  R.  Co.,  141 
N.  Car.  594,  54  S.  E.  434.  See  also 
ante,  §  754.  But  see  as  to  effect  of 
stipulation  granting  time,  Russel  v. 
Harriman  Land  Co.,  145  Fed.  745, 
and  see  Sanderlin  v.  People's  Bank, 
140  Fed.  191. 

54  Barber  v.  Boston  &c.  R.  Co.,  145 
Fed.  52.  See  also  Robert  v.  Pineland 
Club.  139  Fed.  1001  ;  Powers  v. 
Chesapeake  &c.  Ry.  Co.,  169  U.  S. 
92,  18  Sup.  Ct.  264,  42  L.  ed.  673. 

55  Bernheim  v.  Louisville  &c.  Co., 
221  Fed.  273;  Miller  v.  Soule,  221 
Fed.  493.  The  right  of  removal  gen- 
erally depends  upon  the  state  of  the 


113  REMOVAL    OF    CAUSES  §759 

in  the  state  court  and  a  copy  of  the  record  in  the  federal  court, 
and  as  to  the  transfer  of  jurisdiction,  and  the  like,  have  already- 
been  considered,  but  additional  recent  decisions  upon  these 
questions  are  cited  below. ^^  Several  recent  cases  upon  the  gen- 
eral subject  also  deserve  further  consideration.  In  one  of  them 
it  is  held  that  issues  of  fact  raised  by  a  petition  for  removal, 
affecting  the  question  of  removability,  are  cognizable  solely  by 
the  circuit  court  to  which  the  cause  is  sought  to  be  removed; 
that  the  refusal  of  a  state  court  to  grant  the  removal  does  not 
afifect  the  jurisdiction  of  the  federal  court  which  attaches  as 
matter  of  law  on  the  filing  of  a  sufficient  petition  and  bond  when 
the  cause  is  removable,  and  that  where  such  removal  has  been 
effected  under  the  law  by  the  filing  of  a  sufficient  petition  and 
bond,  the  federal  court  has  power,  on  a  bill  in  equity,  to  enjoin 
the  plaintiff  from  further  proceedings  in  the  cause  in  the  state 
court. ^"  In  another  it  is  likewise  held  that  where  the  cause  is 
properly  removed  from  the  state  court  into  the  federal  court 
and  the  plaintiff  undertakes  to  ignore  the  removal,  and  proceed 
with  the  prosecution  of  the  case  in  the  state  court,  the  federal 
court,  having  obtained  jurisdiction,  may  by  injunction  restrain 


pleadings    and    record    at    that    time.  36    Stat.    1087 — authorizing    removal 

West  Side  R.  Co.  v.  California  Pac.  by  defendant  "being  a  nonresident")  ; 

R.    Co.,    202    Fed.    331 ;    Munnss    v.  Johnson  v.  Computing  Scale  Co.,  139 

American    &c.    Co.,    216    Mass.    423,  Fed.    380;    Lebensberger   v.    Scofield, 

103   N.   E.   859.     Verification   of   pe-  139  Fed.   380;   Mays   v.   Newlin,    142 

tition    for    removal    slightly,   but    not  Fed.    574;    Preston   v.    McNeil   Lum- 

substantially       defective       may       be  ber    Co.,    143    Fed.    555 ;    Woodward 

amended  by  leave  of  court.     Murray  Lumber  Co.  v.  Vizard,  144  Fed.  982 ; 

V.   Southern   Bell  Tel.   Co.,  210   Fed.  Mutual    Life    Ins.    Co.    v.    Langley, 

925.  145  Fed.  415;  Atlantic  Coast  Line  R. 

56  Miller    v.    Soule,    221    Fed.    493  Co.  v.  Bailey,   151  Fed.  891 ;  City  of 

(ruling    on    practically    all    of    these  Montgomery  v.    Postal   Tel  &c.    Co., 

questions    and    also    holding   that   an  218  Fed.  471 ;  Buxton  v.  Penna.  Lum- 

averment    in    the    petition    that    de-  ber  Co.,  221  Fed.  718 ;  Cincinnati  &c. 

fendant  is  a  resident  of  another  state  R.  Co.  v.  Curd  (Ky.),  89  S.  W.  140. 

named  is  sufficient  under  the  Judicial  57  Atlantic    Coast    Line    R.    Co.    v. 

Code— Act    March    3,    1911,    ch.    231,  Bailey,  151  Fed.  891. 


§759 


RAILROADS 


114 


the  plaintiff  from  such  threatened  action. ^^  In  another  it  is  held 
that  the  removal  by  one  of  two  defendants  of  a  cause  which  was 
not  removable  because  of  the  absence  of  a  separable  controversy 
does  not  give  the  federal  court  jurisdiction,  otherwise  than  to 
remand,  and  that  it  should  be  remanded  at  any  staj^e,  either  at 
the  instance  of  a  party  or  on  the  court's  own  motion,  whenever 
such  fact  appears/''-*  As  a  general  rule  the  federal  courts  in  a 
case  removed  from  a  state  court  will  not  sit  in  review  of  any 
act  done  by  that  court  prior  to  the  removal.''"  l)Ut  in  a  recent 
case  it  is  held  that  where  the  state  court  acted  without  jurisdic- 
tion a  different  rule  applies,  and  that  a  motion  to  quash  the 
service  on  a  defendant  who  has  not  entered  a  general  appearance, 
which  involves  the  (piestion  of  jurisdiction  over  the  defendant, 
although  overrule<l  by  the  state  court,  may  be  renewed  after 
removal.^^     So,  in  still  later  cases  it  is  held  that  the  sufficiencv 


58  Chicago  &c.  R.  Co.  v.  Stepp,  151 
Fed.  908,  citing  Madisonville  Trac- 
tion Co.  V.  St.  Bernard  Mining  Co., 
196  U.  S.  239,  245,  25  Sup.  Ct.  251, 
49  L.  ed.  462;  Mutual  Life  Ins.  Co. 
V.  Langley,  145  Fed.  415. 

•''^  International  &c.  R.  Co.  v. 
Hoyle,  149  Fed.  180.  The  state 
court,  it  is  held,  after  remand  can- 
not question  the  correctness  of  the 
order  but  must  proceed  to  exercise 
jurisdiction.  Feeney  v.  Wabash  R. 
Co.,  123  Mo.  App.  420,  99  S.  W.  477. 

•"•"J  See  Bragdon  v.  Perkins  &c.  Co., 
82  Fed.  338;  Mutual  Reserve  Assn. 
V.  Phelps,  190  U.  S.  147,  23  Sup.  Ct. 
707,  47  L.  ed.  987. 

•>'  Lathrop  &c.  Co.  v.  Interior 
Const.  &c.  Co.,  150  Fed.  666.  wlicrc 
the  court  said :  "Beyond  doubt,  it 
is  a  general  rule  that  tlic  federal 
courts  in  a  case  removed  from  the 
state  court  will  not  sit  in  review  of 
any  act  done  by  that  court  prior  to 
the  removal,  and  comity  dictates  that 
what    was    done    by    a    court    of    co- 


ordinate jurisdiction  before  the  case 
was  removed  is  entitled  to  great  re- 
spect, and  the  decrees  of  such  court 
are  ordinarily  regarded  as  correct 
adjudications  of  the  questions  in- 
volved. Where,  however,  the  state 
court  acted  without  jurisdiction,  a 
different  rule  unquestionably  applies 
(Loomis  v.  Carrington  [C.  C]  18 
Fed.  97),  and  the  inaptitude  of  the 
doctrine  of  res  adjudicata  is  plainly 
apparent  in  a  case  such  as  this, 
where  the  defendant,  a  citizen  of  an- 
other state  having  withdrawn  its 
business  and  property  from  this 
state,  has  the  absolute  right  to  re- 
move an  action  brought  against  it 
to  tlie  federal  court.  Such  a  right 
unless  waived  by  general  appearance, 
or  otherwise  forfeited,  is  founded 
upon  the  defendant's  alienage  or 
citizenship  of  another  state  and  was 
granted  by  an  act  of  Congress.  Un- 
der such  circumstances  no  state  is 
permitted  l)y  its  action  to  abridg-j 
or   nullity    a   right    granted    pursuant 


115  REMOVAL   OF    CAUSES  §760 

of  process  by  which  the  suit  was  commenced  in  the  state  court 
may  be  raised  in  a  proper  manner  after  removal,**-  and  that  a 
federal  court. has  the  same  jurisdiction  to  modify  or  set  aside 
orders  or  rulings  previously  made  in  a  case  that  the  state  court 
would  have  had  if  tlie  cause  had  not  been  removed.'*^  It  has 
also  been  held  that  a  cause,  properly  removable,  on  being  re- 
moved will  not  be  remanded  because  of  irregularities  in  the 
removal  proceedings,  or  because  it  was  removed  under  the 
wrong  statute,  and  that  an  equity  suit,  after  such  removal,  must 
proceed  according  to  the  equity  rules  and  practice  of  the  federal 
court.^"* 

§  760.  Question  of  jurisdiction  where  neither  party  resides 
in  federal  district — Waiver. — It  is  a  general  rule  that  a  cause  is 
not  removable  unless  it  could  have  been  brought  originally  in 
the  federal  court  into  which  it  is  sought  to  be  removed/'^  Thus, 
where  an  action  is  brought  in  a  state  court  and  neither  party  is 
a  citizen  or  resident  of  the  state,  so  that  it  could  not  have  been 
instituted  originally  in  the  federal  court,  such  action  is  not  re- 
movable to  the  federal  court  of  the  district  in  which  the  state 
court  is  located  on  ground  of  diversity  of  citizenship  even 
though  it  is  instituted  by  a  citizen  of  one  state  against  a  citizen 
of  another.^^     So  it  has  been  held  that  an  action  brought  in  a 

to  constitutional  law.    Tortat  v.  Har-  585,  52  L.  ed.  904,  706,  14  Ann.  Cas. 

den  Min.   &  Mfg.   Co.    (C.    C),    111  1164;  Hall  v.  Great  Northern  R.  Co., 

Fed.   426."  197   Fed.   488;   Waterman  v.   Chesa- 

62  Fountain  v.  Detroit  &c.  R.  Co.,  peake  &c.  R.  Co.,  199  Fed.  667 ;  West- 
210  Fed.  982.  ern  Un.  Tel  Co.  v.  Southeast  &c.  R. 

63  Buxton  V.  Penna  &c.  Co.,  221  Co.,  208  Fed.  266;  Turk  v.  Illinois 
Fed.  718.  See  also  Remington  v.  Cent.  R.  Co.,  218  Fed.  315. 
Chicago  &c.  R.  Co.,  198  U.  S.  95,  25  66  Wisner,  Ex  parte,  203  U.  S. 
Sup.  Ct.  577,  49  L.  ed.  959.  But,  as  449,  27  Sup.  Ct.  150,  51  L.  ed.  644; 
already  shown,  the  court  ordinarily  Yellow  Aster  Min.  &c.  Co.  v.  Crane 
follows  the  state  court  rulings  al-  Co.,  150  Fed.  580.  But  compare 
ready   made    in   the    cause.  Louisville    &c.    R.    Co.    v.    Western 

64  Bryant  Bros.  v.  Robinson,  149  Union  Tel.  Co.,  218  Fed.  91,  refus- 
Fed.  321.  ing  to    follow    the   Wisner   case    and 

6^  Ex  parte  Wisner,  203  U.  S.  449,  holding  that  the  question  of  remova- 
27  Sup.  Ct.  150.  51  L.  ed.  264;  In  bility  does  not  depend  upon  whether 
re  Moore,  209  U.  S.  490,  28  Sup.  Ct.      the    suit   could   have   been   originally 


§  761  RAILROADS  116 

court  of  the  state  in  which  the  plaintiff  resides,  but  outside  the 
federal  district  of  his  residence,  cannot  be  removed  into  the 
federal  court  for  the  district  in  which  the  state  court  is  located.*" 
But  there  are  some  cases  that  an  action  pending  in  a  state  court 
may  be  removed  into  a  federal  court  outside  of  the  state.*^  And 
where  an  action  brought  in  a  court  of  a  state  in  which  neither 
partv  resides  has  been  removed  by  the  defendant  into  the  federal 
court  of  the  district  in  w^hich  the  state  court  is  located,  without 
obiection  by  the  plaintiff,  who  has  filed  pleadings  in  the  case 
in  the  federal  court,  he  will  be  deemed  to  have  waived  objection 
to  the  jurisdiction  of  the  federal  court/'^ 

§  761.  Right  to  proceed  in  state  court  after  dismissal  in  fed- 
eral court. — Tt  is  held  in  a  comparatively  recent  case  that  where 
a  cause  is  removed,  notwithstanding  the  refusal  of  the  state 
court  to  grant  the  application  for  removal,  and  the  party  resist- 
ing it  appears  and  submits  himself  to  the  jurisdiction  of  the  fed- 
eral court  and  takes  a  non-suit  and  consents  that  a  judgment  be 
entered  against  him,  although  he  had  asked  that  the  cause  be 
remanded,  he  cannot  thereafter  prosecute  the  same  suit  in  the 
state  court,  but,  if  entitled  to  proceed  in  the  state  court  at  all, 

brought  in  the  court  to  which   it   is  828.     See  also   St.  Louis  &c.   R.   Co. 

removed.     See  also  Southern  Pac.  R.  v.  Kiser  (Tex.  Civ.  App.),  136  S.  W. 

Co.  V.   Burch,  152  Fed.  168;   George  852;  St.  Louis  &c.  R.  Co.  v.  Cassel- 

V.  Tennessee  &c.  Co.,  184  Fed.  951;  berry    (Tex.   Civ.   App.),   139  S.  W. 

Pugct    Sound    &c.    Works    v.    Great  1161. 

Northern  R.  Co.,  195  Fed.  350.     See  cs  Stewart   v.    Cybur    Lumber    Co., 

also  M.  Hohenberg  &  Co.  v.  Mobile  211  Fed.  343;  Mattison  v.  Boston  &c. 

Liners,  245   Fed.   169.     Where  juris-  R.   Co.,  205   Fed.   821. 

diction   depends   on  the   case  arising  69  Re    Moore,    209    U.    S.    490,    28 

under  the  law  of   the  United   States  Sup.  Ct.  585,  52  L.  ed.  904,  14  Ann. 

it  cannot  be  removed  to  the  District  Cas.  1164  (overruling  Ex  parte  Wis- 

Court   for  a  district  other  than   that  ner,   203   U.    S.   449   on   this   point)  ; 

of  which  the  defendant  is  an  inhabi-  Kreigh  v.  Westinghouse  &c;  Co.,  214 

tant.     Orr  v.    Baltimore  &c.    R.   Co.,  U.  S.  249,  29  Sup.  Ct.  619,  53  L.  ed. 

242  Fed.  608.  984;    Shanberg    v.    Fidelity    &c.    Co., 

07  Shawnee  Nat.  Bank  v.  Missouri  158  Fed.  1,  19  L.  R.  A.  (N.  S.)   1206. 

&c.  R.   Co.,   175  Fed.  456;    St.  Louis  See    also    Moyer   v.    Cliicago   &c.    R. 

&c.   R.  Co.   V.   Kitchen,  98  Ark.   507.  Co.,  168  Fed.   105. 
136  S.  W.  970,  50  L.  R.  A.   (N.  S.) 


117 


KEMOVAL  OF  CAUSES 


§761 


he  must  institute  a  new  suit.''^'  As  a  g'eneral  rule,  however,  after 
the  transfer  to  a  federal  court,  the  plaintiff  may  dismiss,  without 
prejudice,  and  bring  a  new  action  in  the  state  court,"^  and  it  has 
been  held  that  it  is  immaterial  that  the  action  was  not  dismissed 
in  the  federal  court  until  after  the  new  action  had  been  com- 
menced in  the  state  court,  provided  there  was  sucii  a  dismissal 
before  the  trial  of  the  second  action."- 


70  Texas  &c.  R.  Co.  v.  Huber 
(Tex.  Civ.  App.),  95  S.  W.  568. 

71  Southern  R.  Co.  v.  Millar,  217 
U.  S.  209,  30  Sup.  Ct.  450,  54  L.  ed. 
732 ;  Louisville  &c.  R.  Co.  v.  New- 
man, 132  Ga.  523,  64  S.  E.  541,  26 
L.  R.  A.  (N.  S.)  969n;  Behen  v. 
Metropolitan  St.  R.  Co.,  85  Kans. 
491,  118  Pac.  IZ,  Ann.  Cas.  1913A. 
328;  Stevenson  a.  Illinois  Cent.  R. 
Co.,    117   Ky.  855,   79   S.  W.   767.  4 


Ann.  Cas.  890;  Baltimore  &c.  R.  Co. 
v.  Lanvill,  83  Ohio  St.  108,  93  N.  E. 
619,  34  L.  R.  A.  (N.  S.)  1195  (over- 
ruling Baltimore  &c.  R.  Co.  v.  Ful- 
ton, 59  Ohio  St.  575)  ;  McPherson 
V.  Swift,  27  S.  Dak.  296,  130  N.  W. 
768;  Holbrook  v.  Quinlan,  84  Vt. 
411,  80  Atl.  339. 

"2  S.  F.  Dana  &  Co.  v.  Blackburn 
121  Ky.  706,  90  S.  W.  237. 


CHAPTER  XXVII 


GOVERNMENT   CONTROL,   LOCATION   AND    CONSTRUCTION 


Sec. 

770.    Introductory. 

77L  Effect  of  the  commerce  clause 
of  the  federal  constitution 
upon  the  power  of  the 
states. 

111.  Legislative  power  over  pri- 
vate rights  of  railroad  com- 
panies— Nature  of. 

IIZ.    Constitutional   protection. 

774.  The  limits  of  legislative  power 

sometimes  unduly  extended. 

775.  Regulations  affecting  acts  and 

duties  of  a  public  nature — 
Relating  to  stations. 

ll(y.  Regulations  as  to  station  ac- 
commodations— Other  illus- 
trative cases.. 

111.  Corporate  rights  are  subject 
to  the  police  power. 

778.  The   police   power   is   fettered 

by  limitations. 

779.  Subject     must     be     one     over 

which  the  police  power 
extends  —  Cases  adjudging 
statutes   invalid. 


Sec. 

780.  Police  power — Legislative  and 

judicial  questions. 

781.  The    police     power    and     the 

commerce  clause  of  the  fed- 
eral  constitution. 

782.  Regulations    that    have    been 

held  valid — Miscellaneous. 

783.  Regulations   as   to   equipment 

held  valid. 

784.  Regulations     as      to     lighting 

tracks  held  valid. 

785.  The   power   to   impose   penal- 

tics  in  favor  of  private  per- 
sons —  Constitutional  ques- 
tions. 

786.  Regulating  speed  of  trains. 

787.  Stopping    trains     at    highway 

crossings. 

788.  Fencing  tracks. 

789.  Grade  crossings. 

790.  Grade  crossings  continued. 

791.  Requiring  services  and  deny- 

ing compensation. 

792.  Federal     corporation  —  State 

can  not  transform  into  a 
domestic  corporation. 


§  770  (657).  Introductory — The  question  as  to  the  limitations 
that  may  be  imposed  upon  railroad  corporations,  or  as  to  the 
burdens  which  may  be  laid  upon  them,  or  as  to  the  duties  ex- 
acted of  them,  by  legislative  enactments  passed  prior  to  the  or- 
ganization or  adopted  at  the  time  of  the  creation  of  the  corpora- 
tion, is  very  different  from  that  which  arises  where  the  legislative 
enactments  are  passed  subsequent  to  the  creation  of  the  cor- 
poration. The  familiar  doctrine,  heretofore  discussed  that  the 
charter  of  a  corporation  i-)rotects  it  because  the  charter  is  a  con- 


119 


CONTROL,    LOCATION   AND   CONSTRUCTION 


§771 


tract,  materially  limits  the  legislative  power,  but  it  does  not,  by 
any  means,  carry  corporations  beyond  the  domain  over  which 
that  power  extends.  The  legislature  may  effectively  prescribe 
many  regulations  for  the  government  of  railway  companies  al- 
though the  statutes  prescribing  the  regulations  may  be  enacted 
subsequent  to  the  organization  of  the  company.  It  is  our  purpose 
in  this  chapter  to  consider  the  nature  and  extent  of  the  legislative 
power  to  enact  such  statutes.  We  shall,  however,  treat  only  in- 
cidentally of  the  influence  of  the  commerce  clause  of  the  federal 
constitution,  and  of  regulations  operating  upon  railroads  in  their 
capacity  of  common  carriers  we  shall  do  little  else  than  make- 
mention.  The  subjects  just  named  will  be  considered  in  another 
part  of  our  work,  but  it  is  necessary  to  speak  of  them — inci- 
dentally, at  least — in  this  chapter,  since  in  some  phases  they  are 
intimately  connected  with  the  topics  to  the  discussion  of  which 
this  chapter  is  devoted. 

§  771  (658).  Effect  of  the  commerce  clause  of  the  federal  con- 
stitution upon  the  power  of  the  states. — It  is  not  our  purpose  at 
this  place  to  do  more  than  direct  attention  to  the  commerce  clause 
of  the  federal  constitution,  and,  in  general  terms,  to  say  that  it 
materially  limits  the  power  of  the  states.  A  state  cannot,  in  any 
form,  enact  a  statute  which  constitutes  a  regulation  of  interstate 
commerce,  but  it  ma}-  effectively  regulate  intrastate  commerce.^ 


^  Telegraph  Co.  v.  Texas,  105 
U.  S.  460,  26  L.  ed.  1067;  Wabash 
&c.  R.  Co.  V.  Illinois,  118  U.  S. 
557,  7  Sup.  Ct.  4,  30  L.  ed.  244; 
Robbins  v.  Shelby  Count}'  Ta.xing 
District,  120  U.  S.  489,  7  Sup.  Ct. 
592,  30  L.  ed.  694,  and  cases  cited; 
Western  Union  Tel.  Co.  v.  Pendle- 
ton, 122  U.  S.  347,  7  Sup.  Ct.  1126, 
30  L.  ed.  1187;  Norfolk  &c.  R.  Co. 
V.  Commonwealth,  136  U.  S.  114, 
10  Sup.  Ct.  958,  34  L.  ed.  394;  Mon- 
dou  V.  New  York  &c.  R.  Co..  223 
U.  S.  1,  32  Sup.  Ct.  169.  173,  56 
L.  ed.  327;  Simpson  v.  Shepard, 
230  U.  S.  402,  33  Sup.  Ct.  729.  741. 
57  L.  ed.  1511,  48  L.  R.  A.  (N.  S.) 


1151;  United  States  v.  Michigan 
&c.  R.  Co..  43  Fed.  26;  Swift  v. 
Philadelphia  &c.  R.  Co.,  58  Fed. 
858;  State  v.  Woodruff  &c.  Co.. 
114  Ind.  155,  15  N.  E.  814;  State  v. 
Indiana  &c.  Co..  120  Ind.  575,  22 
N.  E.  778,  6  L.  R.  A.  579;  Carton 
V.  Illinois  &c.  R.  Co.,  59  Iowa  148, 
13  N.  W.  67,  44  Am.  Rep.  672 r 
State  V.  Chicago  &c.  R.  Co.,  70> 
Iowa  262,  30  N.  W.  398;  Hardy  v. 
Atchison  &c.  R.  Co.,  32  Kans.  698,. 
5  Pac.  6;  Bangor  v.  Smith,  83 
Maine  422.  22  Atl.  379;  Common- 
wealth V.  Housatonic  &c.  R.  Co... 
143  Mass.  264,  9  N.  E.  547;  Fitz- 
gerald   V.    Fitzgerald    &c.    R.    Co., 


?;  " 


RATT.ROADS 


120 


There  can  be  no  doul)t  that  the  states  are  prohibited  from  regu- 
lating- interstate  commerce,  but  there  is  some  doubt  as  to  what 
shall  be  considered  a  regulation  of  commerce  between  the  states, 
for  it  is  not  every  legislative  enactment  which  bears  upon  the 
subject  that  can  be  regarded  as  a  regulation  of  interstate  com- 
merce. But  as  this  chapter  is  directed  to  a  consideration  of  the 
power  of  the  states,  and  the  purpose  is  to  only  touch  the  question 
of  the  rights  and  powers  of  the  federal  government,  we  do  not 
here,  except  incidentally,  consider  the  extent  or  scope  of  the 
national  power. 


41   Nebr.  374,   59  N.  W.  838.     See 
upon  the  general  subject.  Fargo  v. 
Michigan,  121  U.  S.  230,  30  L.  ed. 
888;  Leloup  v.  Port  of  Mobile,  127 
U.  S.  640,  8  Sup.  Ct.  1380,  ZZ  L.  ed. 
311;   Louisville  &c.  R.  Co.  v.  Ken- 
tucky. 183  U.  S.  503,  22  Sup.  Ct.  95, 
46    L.   ed.   298;    Louisville    &c.    Co. 
V.  Railroad  Commissioners,  19  Fed. 
679;    Illinois   &c.    R.    Co.   v.    Stone, 
20   Fed.   468.     In  the   case   of  Chi- 
cago   &c.    R.    Co.    V.    Wolcott,    141 
Ind.  267,  39  N.   R.  451.  50  Am.  St. 
320.  the  court  seems  to  make  the 
question  of  the  power  of  the  state 
to  legislate  turn  upon  the  question 
whether  the   statute   is   in   "conflict 
with  the  riglit  of  congress  to  legis- 
late    upon     interstate     commerce," 
i)ut  we  respectfully  affirm  that  this 
view    is    erroneous,    for    the    states 
have  no  power  at  all  to  enact  stat- 
utes  that   are   regulations   of  com- 
merce   between    the    states.      The 
conclusion    we    affirm    is    strongly 
supported  by   the   decision   in   Gulf 
&c.  R.  Co.  V.  Hefley,  158  U.  S.  98, 
15    Sup.   Ct.   802.  39   L.   ed.  910,   in 
whicli  it  was  held  that  a  provision 
of   a    state    statute    prohibiting   the 
collection    of    any    greater    rate    of 
freight    than    that    specified    in    the 
bill   of   lading   vas   in   cnntlict   with 


the  commerce  clause  of  the  federal 
Constitution  and  void.  The  court 
cited,  among  others,  the  cases  of 
Railroad  Co.  v.  Fuller,  17  Wall. 
(U.  S.)  560,  21  L.  ed.  710;  Wilson 
v.  Black  Bird  &c.  Co.,  2  Pet.  (U. 
S.)  245,  7  L.  cd.  412;  Cooley  v. 
Board,  12  How.  (U.  S.)  299,  13  L. 
ed.  996;  James  Gray  v.  John  Fra- 
ser,  21  How.  (U.  S.)  184,  16  L.  ed. 
106;  Gilman  v.  Philadelphia,  3 
Wall.  (U.  S.)  713,  18  L.  ed.  96; 
McNiel,  Ex  parte,  13  Wall.  (U.  S.) 
236.  20  L.  cd.  624:  Henderson  v. 
^layor,  92  U.  S.  259.  23  L.  ed.  543; 
Pound  V.  Turck,  95  U.  S.  459.  24 
L.  ed.  525;  Packet  Co.  v.  Catletts- 
burg,  105  U.  S.  559,  26  L.  ed.  1169; 
Escanaba  &c.  Co.  v.  Chicago.  107 
U.  S.  678,  2  Sup.  Ct.  185.  27  L.  ed. 
442;  Morgan's  &c.  Co.  v.  Louisiana 
&c.,  118  U.  S.  455,  6  Sup.  Ct.  1114, 
30  L.  ed.  237.  In  W.  W.  Cargill 
Co.  V.  Minnesota,  180  U.  S.  452.  21 
Sup.  Ct.  423,  45  L.  ed.  619,  it  is 
held  elevators  on  a  railroad  right 
of  way  may  be  classified  and  a  li- 
cense required  and  that  the  fact 
that  grain  is  there  stored  to  be 
shipped  out  of  the  state  does  not 
make  such  a  license  an  unlawful 
regulation   of  interstate   commerce. 


121  CONTROL,   LOCATION   AND   CONSTRUCTION  §  772 

§  772  (659).  Legislative  power  over  private  rights  of  railroad 
companies — Nature  of. — It  is  true  that  railroad  corporations  are 
in  a  sense  public  corporations,  but  this  is  true  only  in  a  qualified 
and  limited  sense. ^  They  are  not,  as  elsewhere  said,  govern- 
mental corporations  or  governmental  subdivisions,  and  the  power 
of  the  legislature  over  them  falls  far  short  of  that  which  it  has 
over  governmental  corporations.  But,  as  a  railroad  corporation 
is  in  a  sense  public,  the  legislative  power  over  it  is  greater  than 
its  power  over  strictly  private  corporations  or  individuals.  Yet, 
the  legislative  power  is  only  greater  in  so  far  as  a  railroad  cor- 
poration is  public,  and,  on  principle,  it  is  not  greater  over  private 
rights,  such,  for  instance,  as  contract  and  property  rights  not 
affecting  public  duties,  than  is  its  power  over  strictly  private  cor- 
porations or  natural  persons.  There  is  reason  for  affirming  that, 
in  so  far  as  a  railroad  corporation  is  public,  the  legislative  power 
is  much  greater  than  over  natural  persons  or  strictly  private  cor- 
porations, but  there  is  no  valid  reason  for  affirming  that,  as  to 
purely  private  rights,  the  legislative  power  is  greater  than  over 
strictly  private  corporations  or  individuals.  Thus,  for  illustra- 
tion, a  railroad  corporation,  in  so  far  as  concerns  its  rights  and 
duties  as  a  common  carrier,  is,  in  a  qualified  sense,  a  public  cor- 
poration, while  as  to  its  strictly  private  rights  and  duties  it  is  a 
private  corporation.  But  even  as  to  its  public  rights  the  legis- 
lative power  is  limited,  for  under  guise  of  controlling  such  rights 
the  legislature  cannot  destroy  private  corporate  rights.  For  in- 
stance, the  legislature  may  regulate  charges  for  transporting 
freight  and  passengers,  but  it  cannot  deprive  the  corporation  of 
the  right  to  compensation,  nor  can  it  fix  the  charges  at  such  a 
low  rate  that  the  corporation  cannot  make  a  fair  and  reasonable 
profit.^     The  element  of  private  right  is  so  strong  that  it  limits 

2  Ante,  §§  3,  43.  In  considering  841;  Chicago  &c.  R.  Co.  v.  I\Iinne- 
the  legal  status  of  a  railroad  cor-  sotav  134  U.  S.  418,  10  Sup.  Ct.  462, 
poration  we  have  discussed  ques-  702,  33  L.  ed.  970;  Chicago  &c.  R. 
lions  closely  allied  to  some  of  the  Co.  v.  Wellman,  143  U.  S.  .339,  12 
questions  of  which  this  chapter  .Sup.  Ct.  400,  36  L.  ed.  176;  Reagan 
treats.     Ante,  Chapter  III.  v.   Farmers'  Loan   &c.    Co.,   154  U. 

3  Chicago  &c.  R.  Co.  v.  Dey,  35  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed. 
Fed.  866;  Dow  v.  Beidelman,  125  1021;  St.  Louis  &c.  v.  Gill.  156 
U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  ed.  U.  S.  649,  15  Sup.  Ct.  484.  39  L.  ed. 


§  772  KAII.ROADS  122 

the  legislative  control  over  the  public  element  which  enters  into 
the  corporate  being'.  While  it  is  within  the  legislative  power  to 
regulate  public  rights  and  duties  it  is  beyond  that  power  to  make 
a  regulation  that  will  destroy  property  or  contract  rights  of  a 
private  nature.  In  other  words,  the  public  element  cannot  be 
used  as  a  weapon  to  destroy  vested  private  rights.  There  is,  as  it 
seems  to  us,  no  reason  to  doubt  that  the  nature  of  the  legislative 
power  over  railroad  companies,  in  so  far  as  their  private  rights 
are  concerned,  is  substantially  the  same  as  that  which  it  possesses 
over  similar  rights  possessed  by  private  corporations,  or,  indeed, 
individuals,  and  no  greater,  but  that  as  to  public  rights,  or 
matters  in  which  the  corporation  is  "affected  by  the  public  in- 
terest," its  legislative  power  is  much  more  extensive,  and  that, 
although  the  power  over  ])ublic  matters  is  the  greater,  it  is  not 
extensive  enough  to  justify  the  destruction  of  private  rights 
vested  in  the  corporation.* 

567;  Railroad  Commission  Cases,  Ct.  95,  46  L.  ed.  298;  Atlantic  Coast 
116  U.  S.  307,  6  Sup.  Ct.  334.  348.  Line  R.  Co.  v.  N.  Car.  Corp.  Com., 
349,  388,  391,  1191,  29  L.  ed.  636;  206  U.  S.  1,  27  Sup.  Ct.  584,  51  L. 
Chicago  &c.  R.  Co.  v.  Becker,  35  ed.  933.  Compare  also  Houston 
Fed.  883.  See,  also,  Smyth  v.  &c.  R.  Co.  v.  Mayes,  201  U.  S.  321. 
Ames,  169  U.  S.  466,  18  Sup.  Ct.  26  Sup.  Ct.  491,  50  L.  ed.  IIZ;  Mis- 
418,  42  L.  ed.  819;  Cotting  v.  Kan-  souri  Pac.  Ry.  Co.  v.  Nebraska. 
sas  City  &c.  Co.,  183  U.  S.  79.  22  217  U.  S.  196.  30  Sup.  Ct.  461.  54 
Sup.  Ct.  30,  46  L.  ed.  92;  East  Side  L.  ed.  727.  But  it  is  held  in  a  very 
Levee  &c.  Dist.  v.  East  St.  Louis  recent  case  that  a  statute  providing 
&c.  Ry.  Co.,  279  III.  123,  116  N.  E.  for  the  taking  over  of  an  elevated 
720,  723  (citing  text);  Public  Scrv-  interurban  railway  company  by  the 
ice  Com.  v.  Northern  Cent.  R.  Co.,  state  for  ten  years,  and  possibly 
122  Md.  355,  90  Atl.  105;  Seward  longer,  on  acceptance  by  a  major- 
V.  Denver  &c.  R.  Co.,  17  N.  Mex.  ity  of  the  stockholders,  is  constitu- 
557,  131  Pac.  980,  46  L.  R.  A.  (N.  tional  as  dealing  with  a  public  mat- 
S.)  242.  ter,  and  that  fares  might  then  be 
"*  See  generally  Wisconsin  &c.  R.  made  less  than  the  cost  of  opera- 
Co.  V.  Jacobson,  179  U.  S.  287,  21  tion  and  assessment  of  taxes  on 
Sup.  Ct.  115,  45  L.  ed.  194;  Lake  the  towns  and  cities  affected  of 
Shore  &c.  R.  Co.  v.  Smith.  173  enough  to  make  up  the  difference 
U.  S.  684.  19  Sup.  Ct.  565.  43  L.  and  pay  dividends.  In  re  Opinion 
ed.  858;  Louisville  &c.  R.  Co.  v.  of  Justices.  231  Mass.  603,  122  N. 
Kentucky.    183   U.   S.   503,  22   Sup.  E.  Idi. 


123 


CONTROI-i,    LOCATION    AXD   CONSTRUCTIOX 


§773 


§773  (660).  Constitutional  protection. — It  is  evident  from 
what  has  been  said  that,  so  far  as  concerns  property  or  contract 
rights,  railroad  corporations  are  protected  by  the  provisions  of 
the  state  and  federal  constitution.  The  legislature  cannot  take 
from  them  any  right  guaranteed  to  them  by  the  constitution, 
except  in  some  mode  not  forbidden  by  the  constitution.  The 
principle,  that  railroad  corporations  are  within  the  protection 
given  to  property,  property  rights  and  contract  rights,  is  recog- 
nized in  many  cases  and  in  a  variety  of  forms.  Thus,  it  is  held 
that  even  where  the  power  to  amend  or  repeal  the  charter  is 
reserved  the  legislature  cannot  authorize  a  seizure  of  the  property 
of  a  railroad  company  for  a  highway  without  compensation,  nor 
compel  it  to  devote  its  property  to  the  use  of  the  public  and  fit 
it  for  that  use.'^  So,  a  corporation  is  a  person,  and  entitled  to  pro- 
tection as  such  under  the  fourteenth  amendment  to  the  federal 
constitution.®  So,  also,  railroad  corporations  are  protected  by 
constitutional  provisions  against  unequal  or  double  taxation.  It 
is  not  within  the  legislative  power  to  pass  special  or  local  laws 
affecting  railroad  companies  where  the  constitution  prohibits  the 
enactment   of  such   laws.^     There   is,   in   truth,   no  diversity   of 


5  Miller  v.  New  York  &c.  R.  Co., 
21  Barb.  (N.  Y.)  513;  People  v. 
Lake  Shore  &c.  R.  Co.,  52  Mich. 
277,  17  N.  W.  841;  Detroit  v.  De- 
troit Plank  Road  Co.,  43  Mich.  140, 
5  N.  W.  275;  Chicago  &c.  R.  Co. 
V.  Hough,  61  Mich.  507,  21  N.  W. 
532.  But  see  Portland  &c.  R.  Co. 
V.  Deering,  78  Maine  61,  57  Am. 
Rep.  784;  Boston  &c.  R.  Co.  v. 
Commissioners,  79  Maine  386,  2 
Atl.  670;  Illinois  Central  &c.  R. 
Co.  V.  Willenborg,  117  111.  203,  7 
N.  E.  698,  57  Am.  Rep.  862;  Mont- 
clair  V.  New  York  &c.  R.  Co.,  45 
N.  J.  Eq.  436,  18  Atl.  242. 

6  Pembina  &c.  Co.  v.  Pennsylva- 
nia, 125  U.  S.  181,  8  Sup.  Ct.  12,1, 
31  L.  ed.  650;  Santa  Clara  Co.  v. 
Southern  Pacific  &c.  R.  Co.,  118 
U.  S.  394,  6  Sup.  Ct.  1132,  30  L.  ed. 


118,  24  Am,  &  Eng.  R.  Cas.  523; 
Minneapolis  &c.  Co.  v.  Beckwith, 
129  U.  S.  26,  9  Sup.  Ct.  207,  1>2  L. 
ed.  585:  Smyth  v.  Ames,  169  U.  S. 
466,  18  Sup.  Ct.  418,  424,  42  L.  ed. 
819;  McGuire  v.  Chicago  &c.  R. 
Co.,  131  Iowa  340,  108  N.  W.  902. 
"  Indiana  &c.  R.  Co.  v.  Gapen, 
10  Ind.  292:  South  &c.  R.  Co.  v. 
Morris,  65  Ala.  193;  Brown  v.  Ala- 
bama &c.  R.  Co.,  87  Ala.  370,  6 
So.  259;  Madison  &c.  R.  Co.  v. 
Whiteneck,  8  Ind.  217;  Wilder  v. 
Chicago  &c.  R.  Co.,  70  Mich.  382, 
384,  385,  38  N.  W.  289;  Chicago 
&c.  R.  Co.  V.  Moss,  60  Miss.  641. 
See  generally  LafFerty  v.  Chicago 
&c.  R.  Co.,  71  Mich.  35,  38  N.  W. 
660;  Zeigler  v.  South  and  N.  R. 
Co.,  58  Ala.  594;  South  &c.  R.  Co. 
V.    Morris,    65    Ala.    193;    Smith    v. 


§  774  .      ..   .  HAILKOADS  12-1: 

opinion  upon  the  general  question,  but  there  is  much  diversity  of 
opinion  in  the  application  of  the  principles  to  actual  cases. 

§  774  (661).  The  limits  of  legislative  power  sometimes  unduly 
extended. — Theoretically  all  the  courts  act  upon  the  principle  that 
railroad  corporations  as  to  similar  property  and  contract  rights 
are  entitled  to  substantially  the  same  constitutional  protection  as 
natural  persons,^  but  many  of  the  courts,  while  professing  to 
adopt  the  true  theory,  practically  deny  the  same  measure  of  pro- 
tection to  railroad  corporations  in  respect  to  such  rights  that  they 
yield  to  individual  citizens.  There  are  cases  w^herein  statutes 
directed  against  corporations  are  upheld  which  would  be  over- 
thrown if  the  persons  against  whom  the  statutes  are  directed 
were  natural  instead  of  artificial  persons.  The  tendency  is  to 
strip  corporations  of  constitutional  protection,  and,  as  it  seems 
to  us,  many  of  the  cases  go  too  far  in  that  direction.  Differences 
between  corporations  and  natural  persons  are  often  assumed  to 
exist  wdiich  are  purely  imaginary.  This  unjust  assumption  is 
made  for  the  purpose  of  sustaining  legislation  directed  against 
corporations,  which,  if  directed  against  individuals,  would  be 
promptly  condemned  as  unconstitutional.  Burdens  are  frequently 
imposed  U{)on  railroad  companies,  which,  in  effect,  constitute  a 
taking  of  propert}'  without  compensation.  This  course  is  gen- 
erally defended  upon  the  grcnmd  that  statutes  imposing  such 
burdens  are  enacted  in  the  exercise  of  the  police  power.  The  con- 
stitutional inhibitions  directed  against  local  and  special  legisla- 
tion are  sometimes  evaded  by  holding  that  the  peculiar  nature 
of  a  railroad  corporation  justifies  particular  legislation.  It  may 
be.  and  doubtless  is,  a  reasonable  basis  for  classification  in  some 
instances,  but  by  indirection  that  is  done  in  many  instances  which 
would  be  unhesitatingly  overthrown  if  done  directly.     So.  too, 

Louisville  &c.  R.  Co..  75  Ala.  44^^;  natural  persons.  Corporate  rights, 
Schut  V.  Chicago  &c.  R.  Co.,  70  as  elsewhere  said  and  as  is  well 
Mich.  433,  38  N.  W.  291;  Grand  known,  are  derivative,  and  are  liin- 
Rapids  &c.  R.  Co.  v.  Runnels,  77  ited  by  the  charter  of  the  corpora- 
Mich.  104,  43  N.  W.  1006.  tion.  But  as  to  contract  and  prop- 
8  We  do  not  mean,  of  course,  erty  rights  conferred  by  the  charter 
that  corporate  rights  are  as  free  the  constitutional  protection  ex- 
froni    limitation    as    the    rights    of  tends. 


125  CONTROL,   LOCATION    AND   CONSTRUCTION  §  775 

unconstitutional  statutes  are  frequently  so  disguised  by  the  form 
they  are  made  to  assume,  that,  although  in  their  practical  effect 
and  operation  they  invade  private  rights,  yet  the  courts,  misled 
by  form,  lose  sight  of  substance  and  sustain  them." 

§  775  (662).  Regulations  affecting  acts  and  duties  of  a  public 
nature — Relating  to  stations. — Some  of  the  cases  seem  to  place 
the  power  of  the  legislature  to  regulate  the  public  acts  and  duties 
of  railroad  companies  entirely  upon  the  police  power,  losing 
sight  of  the  fact  that  as  to  matters  wherein  corporate  property 
rights  and  duties  are  "aft'ected  by  a  public  interest"  the  legisla- 
ture possesses  the  power  to  enact  reasonable  regulations  for  the 
comfort,  welfare  and  safety  of  the  public,  although  such  regula- 
tions may  not  be  strictly  police  regulations.  Where  the  rights 
and  property  of  a  railroad  company  are  "affected  by  a  public 
interest,"  the  company,  in  accepting 'a  special  charter  or  availing 
itself  of  the  benefit  of  a  general  act  of  incorporation  submits  its 
rights  and  property  to  public  control,  and  this  control  extends 
far  beyond  that  to  which  private  property  is  subject. ^°  Where 
the  subject  of  the  legislation  is  the  public  part,  or  element,  of  a 
corporation,  the  legislative  authority  does  not,  as  we  have  else- 

9  East    Side    Levee    &c.    Dist.    v.  Hockett   v.    State,    105    Ind.   250,    5 

East  St.  Louis  &c.  Ry.  Co.,  279  111.  N.  E.  202,  55  Am.  Rep.  201;  Soiith- 

123,  116  N.  E.  720.  723  (citing  text).  ern    Indiana    R.    Co.    v.    Railroad 

loMunn  v.  Illinois,  94  U.  S.  113,  q^^^^   xil  Ind.   113.  87  N.   E.  966; 

24  L.  ed.  11;  Railroad  Co.  v.   Ful-  Rughville  v.  Rushville  &c.  Co..  132 

ler,  17  Wall.  (U.  S.)  560.  21  L.  ed.  ^^^    575^  28  N.  E.  853,  15  L.  R.  A. 


321;    Commonwealth   v.    Duane,   98 
Mass.    1;    Zanesville    v.    Zanesville 


710;  Chicago  &c.  R.  Co.  v.  Iowa 
94  U.  S.  155,  24  L.  ed.  94;  Chicago 
&c.  R.  Co.  V.  Ackley,  94  U.  S.  179, 

24  L.  ed.  99;  Winona   &c.   R.   Co.  ^^-  ^o.  47  Ohio  St.  1.  23  N.  E.  55: 

V.    Blake,  94  U.    S.    180,   24   L.   ed.  Sharpless  v.  Mayor,  21  Pa.  St.  147. 

99;   Railroad   Co.  v.   Richmond,  96  59  Am.  Dec.  759.     See  also  Atlantic 

U.   S.   521,  24   L.  ed.  734;    Ruggles  Coast  Line  R.  Co.  v.  Coachman,  59 

V.  Illinois,  108  U.  S.  526,  2  Sup.  Ct.  Fla.  130,  52  So.  lyll;  Railroad  Com. 

832,  27  L.  ed.  812;  Illinois  Central  v.    Louisville    &c.    R.    Co.,    140    Ga. 

R.    Co.   V.    People.    108   U.    S.   541,  817,  80  S.  E.  327,  L.   R.  A.  1915E, 

2  Sup.  Ct.  839,  27  L.  ed.  818,  1  Am.  902n,  Ann.  Cas.  1915A,  1018n;  Sea- 

&  Eng.  R.  Cas.  188;  New  York  &c.  board  Air  Line  R.  Co.  v.  Seegers. 

R.  Co.  V.  New  York,  165  U.  S.  628,  207  U.  S.  11,  28  Sup.  Ct.  28.  52  L. 

17    Sup.    Ct.    418,    41     L.    ed.    853;  ed.  108. 


%   it.) 


KAILHOADS 


126 


where  indicated,  rest  entirely  upon  the  police  power,  but  rather 
upon  the  right  to  regulate  the  acts,  business  and  duties  of  a  public 
corporation.  The  power  of  the  legislature  to  make  regulations 
concerning  the  public  rights,  duties  and  acts  of  railroad  com- 
panies is  analogous  to  that  which  it  possesses  over  municipal  or 
governmental  corporations,  but  is  by  no  means  so  broad  or  com- 
prehensive as  that  power.  It  is  to  be  observed  that,  as  hereto- 
fore shown,  no  state  regulation  can  be  valid,  whether  rested  on 
the  police  power  or  on  the  power  to  control  public  corporations, 
if  it  is,  in  fact,  a  regulation  of  commerce  between  the  states  in 
the  constitutional  sense  of  the  term.  Under  the  power  to  con- 
trol the  pu])lic  part,  or  element,  of  a  railroad  company,  many  im- 
portant duties  may  be  imposed  upon  it  and  many  requirements 
be  made  that  could  not  be  made  or  imposed  in  matters  of  strictly 
private  right.  ^°*  It  has  been  held  that  under  the  general  power 
to  control  matters  of  a  public  nature  the  state  may  require  rail- 
road companies  to  place  in  their  stations  blackboards,  and  note 
thereon  the  time  of  the  arrival  of  trains,  "and  if  late  how 
much."^^  There  are  also  decisions  correctly  adjudging  that  it  is 
competent  for  the  legislature  to  require  railroad  companies  to 
erect  and  maintain  suitable  stations  for  the  accommodation  of 
passengers,^-  and  to  provide  reasonable  facilities  for  the  inter- 


^°*  East  Side  Levee  &c.  Dist.  v. 
East  St.  Louis  Ry.  Co.,  279  111.  123, 
116  N.   E.  720,  723  (quoting  text). 

11  State  V.  Indiana  &c.  R.  Co.,  133 
Ind.  69,  32  N.  E.  817,  18  L.  R.  A. 
502.  The  questions  decided  in  the 
case  are  close  and  it  may  be  doubt- 
ed whether  there  is  not  error  in 
some  of  the  conclusions  asserted. 
In  the  course  of  the  opinion  the 
court  said:  "While  this  statute  may 
be  on  the  border  of  legislative  au- 
thority, yet  we  do  not  think  it  is 
an  attempt  to  regulate  commerce 
or  to  interfere  with  it."  In  State 
V.  Kentucky  &c.  R.  Co..  136  Ind. 
195,  35  N.   E.  991,  it  was  held  that 


the  statute  did  not  apply  to  cases 
where  the  time  occupied  in  run- 
ning over  the  entire  route  was  less 
than  twenty  minutes.  See  also 
Pennsylvania  &c.  Co.  v.  State,  142 
Ind.  428,  41  N.  E.  937. 

12  San  Antonio  &c.  R.  Co.  v. 
State,  79  Texas  264,  14  S.  W.  1063. 
See  also  Minneapolis  &c.  R.  Co. 
v.  Minnesota,  193  U.  S.  53,  24  Sup. 
Ct.  396,  48  L.  ed.  614;  Nashville 
&c.  R.  Co.  V.  State,  137  Ala.  439, 
34  So.  401;  Minneapolis  &c.  R.  Co. 
V.  Railroad  Com.,  136  Wis.  146, 
116  N.  W.  905,  17  L.  R.  A.  (N.  S.) 
821.  and  additional  authorities  there 
cited. 


127 


CONTROL,   LOCATION'   AND   CONSTRUCTION 


§776 


change  of  freight. ^^  But  it  has  also  been  held  that  such  a  statute, 
requiring  a  station  at  a  certain  point  may  be  reviewed  by  the 
courts  as  to  its  reasonableness  and  whether  there  is  a  real  public 
necessity.^* 

§  776.  Regulations  as  to  station  accommodations — Other  illus- 
trative cases. — Statutes  requiring  railroad  companies  to  provide 
station  agents  wath  certificates  of  authority,  and  requiring  such 
companies  to  redeem  unused  tickets,  have  been  adjudged  to  be 
valid. ^^  So,  a  statute  has  been  upheld  which  forbids  carriers  to 
receive  for  transportation  uninspected  hides,  though  consigned  to 
points  without  the  state. ^"^  It  is  held  competent  for  the  legisla- 
ture to  compel  railroad  companies  to  provide  waiting  rooms, ^^ 
to  properly  light  and  heat  them,^^  to  provide  water  closets,"  to 
require  rules  and  schedules  to  be  posted  in  stations  or  depots,-"  to 


13  State  V.  Kansas  City  &c.  R. 
Co.,  32  Fed.  722.  See  also  Wis- 
consin &c.  R.  Co.  V.  Jacobson,  179 
U.  S.  287,  21  Sup.  Ct.  115,  45  L.  ed. 
194. 

!■*  Louisiana  &c.  R.  Co.  v.  State, 
85  Ark.  12,  106  S.  W.  960. 

15  Burdick  v.  People,  149  III.  600, 
36  N.  E.  948,  24  L.  R.  A.  152,  41 
Am.  St.  329,  10  Am.  R.  &  Corp.  R. 
451;  Fry  v.  State,  63  Ind.  552,  30 
Am.  Rep.  238;  State  v.  Fry,  81  Ind. 
7;  State  v.  Corbett,  57  Minn.  345, 
59  N.  W.  317;  State  v.  Thompson, 
47  Ore.  492,  84  Pac.  476;  Common- 
wealth V.  Wilson,  14  Phila.  (Pa.) 
384,  56  Am.  &  Eng.  R.  Cas.  230. 
See  State  v.  Ray,  109  N.  Car.  736, 
14  S.  E.  83,  14  L.  R.  A.  529;  State 
V.  Clark,  109  N.  Car.  739,  14  S.  E. 
84. 

16  Territory  of  New  Mexico  v. 
Denver  &c.  R.  Co.,  203  U.  S.  38, 
27  Sup.  Ct.  1,  51  L.  ed.  78. 

1"  State   V.    St.    Paul    &c.    R.   Co., 


40  Minn.  353,  42  N.  W.  21;  State 
V.  Wabash  &c.  R.  Co.,  83  Mo.  144, 
25  Am.  &  Eng.  R.  Cas.  133;  San 
Antonio  &c.  R.  Co.  v.  State,  79 
Tex.  264,  14  S.  W.  1063,  45  Am. 
&  Eng.  R.  Cas.  586;  State  v.  Kan- 
sas City  &c.  R.  Co.,  32  Fed.  722. 
See  Kinealy  v.  St.  Louis  &c.  R. 
Co.,  69  Mo.  658;  Baltimore  &c.  R. 
Co.  V.  Compton,  2  Gill  (Md.)  20. 

18  Texas  &c.  R.  Co.  v.  Mayes 
(Texas),  White  &  W.  Civ.  Cas. 
Ct.  App.  §159,  15  S.  W.  43.  See 
State  V.  Cleveland  &c.  R.  Co.,  137 
Ind.  75,  36  N.  E.  713. 

19  Louisville  &c.  R.  Co.  v.  Com- 
monwealth, 97  Ky.  207,  30  S.  W. 
616.  See  also  State  v.  Southern 
Kans.  R,  Co.,  44  Tex.  Civ.  App. 
218,  99  S.  W.  167. 

20  Chicago  &c.  R.  Co.  v.  Fuller, 
17  Wall.  (U.  S.)  560.  21  L.  ed.  710; 
Fuller  V.  Chicago  &c.  R.  Co.,  31 
Iowa  187;  Thomp.  Com.  Neg.  (2d 
ed.)   $1528. 


§  777  RAILROADS  128 

station  flagman  and  maintain  gates  at  crossings,"^  to  require 
signals  by  trains  approaching  highway  crossings, ^^  and  to  require 
its  ticket  office  to  be  kept  open  a  specified  length  of  time  before 
the  departure  of  trains.*^  Some  of  the  cases  seem  to  hold  that, 
independent  of  statute,  there  is  an  absolute  duty  to  erect  and 
maintain  depots  or  stations,  which  performance  may  be  coerced 
by  mandamus,'^*  but  there  are  well-reasoned  cases  limiting  and 
qualifying  this  broad  doctrine. ^^ 

§  777  (663).  Corporate  rights  are  subject  to  the  police  power. — 
All  corporate  rights  are  taken  subject  to  the  great  power  reserved 

21  State  V.  St.  Paul  &c.  R.  Co.,  Jll.  175,  22  N.  E.  857;  North  Pacific 
98  Minn.  380,  108  N.  W.  261,  120  R.  Co.  v.  Territory,  3  Wash.  303, 
Am.  St.  581.  But  see  Pennsylva-  13  Pac.  604.  The  case  last  cited 
nia  R.  Co.,  In  re,  213   Pa,  St.  373,  was  reversed  on  appeal. 

62  Atl.  986,  holding  that  a  city  has  '  -■'  Northern  Pac.  R.  Co.  v.  Wash- 
no  power  to  compel  the  erection  of  ington  Territory,  142  U.  S.  492,  12 
safety  gates  at  the  expense  of  the  Sup.  Ct.  283,  35  L.  ed.  1092,  48  Am. 
railroad  company.  &  Eng.  R.  Cas.  475;  Page  v.  Louis- 

22  Galena  &c.  R.  Co.  v.  Appleby,  ville  &c.  R.  Co.,  129  Ala.  232,  29 
28  111.  283;  Galena  &c.  R.  Co.  v.  "  So.  676;  State  v.  Kansas  City  Ry. 
Loomis,  13  111.  548,  56  Am.  Dec.  Co.,  51  La.  Ann.  200,  25  So.  126; 
471.  See  also  Southern  R.  Co.  v.  Southeastern  Ry.  v.  Ry.  Comrs.,  50 
Grizzle,  131  Ga.  287,  62  S.  E.  177;  L.  J.  Q.  B.  201,  6  Q.  B.  D.  586. 
Seaboard  Air  Line  Ry.  v.  Black-  See  York  &c.  R.  Co.  v.  Regina,  1 
well,  143  Ga.  237,  84  S.  E.  472  (even  El.  &  B.  858;  Atchison  &c.  R.  Co. 
to  check  speed  on  approaching  v.  Denver,  110  U.  S.  667,  4  Sup.  Ct. 
crossings).  Compare  Southern  Ry.  185,  28  L.  ed.  291,  16  Am.  &  Eng. 
Co.  v.  King,  217  U.  S.  524,  30  Sup.  R.  Cas.  57;  Commonwealth  v. 
Ct.  594,  54  L.  ed.  868.  Fitchburg    &c.     R.     Co.,    12    Gray 

23  Brady  v.  State,  15  Lea  (Tenn.)  (ATass.)  180;  State  v.  Southern  &c. 
628.  R.  Co.,  18  Minn.  40;  People  v.  New 

24  State  V.  Republican  Valley  &c.  York  &c.  R.  Co.,  104  N.  Y.  58,  9 
R.  Co.,  17  Nebr.  647.  24  N.  W.  329,  N.  E.  856,  58  Am.  Rep.  484.  Com- 
52  Am.  Rep.  424;  Railroad  Com-  pare,  however,  Chicago  &c.  R.  Co. 
missioners  v.  Portland  &c.  R.  Co.,  v.  People,  152  111.  230,  38  N.  E.  562, 

63  Maine  269,  18  Am.  Rep.  208;  26  L.  R.  A.  224;  Ohio  &c.  R.  Co. 
State  v.  New  Haven  &c.  R.  Co.,  v.  People,  120  111.  200.  11  N.  E.  347; 
43  Conn.  351.  See  also  Florida  &c.  People  v.  Chicago  &c.  R.  Co.,  130 
R.  Co.  v.  State,  31  Fla.  482,  13  So.  III.  175,  22  N.  E.  857;  Mobile  &c. 
103,  20  L.  R.  A.  419.  34  Am.  St.  30;  R.  Co.  v.  People.  132  III.  559,  24 
People  V.  Chicago  &c.  R.   Co..   130  N.  E*.  643,  22  .\m.  St.  556. 


129 


CONTROL,   LOCATION   AND   CONSTRUCTION 


§777 


in  ever}'  state  and  commonly  known  as  the  police  power. -^  This 
])ower  is  governmental  in  the  strictest  sense  of  the  term,  and  can 
neither  be  surrendered  nor  bargained  away  by  contract.  All 
])roperty  is  subject  to  this  ])ower  whether  it  belongs  to  natural  or 
artificial  persons.  The  legislature  could  not.  if  it  would,  grant 
a  charter  which  would  place  corporate  rights  above  this  power. 
There  is  no  contrariety  of  opinion,  nor  can  there  be,  upon  the 
proposition  that  corporate  rights,  no  matter  what  their  nature, 
are  subject  to  the  ]M-oper  exercise  of  this  high  power,  but  there  is 
often  difficulty  in  determining  what  is  or  is  not  a  valid  exercise 
of  the  power.  Statutes  have  been  upheld  on  the  ground  that  in 
enacting  them  the  legislature  exercised  this  jwwer,  when,  in 
truth,  the  subject  of  the  statutes  was  not  a  subject  over  which 
the  police  power  extends.  So,  too,  statutes  have  been  upheld 
upon  the  theory  that  the  legislature  is  the  sole  judge  of  what 
subjects  are  or  are  not  wathin  the  police  power.  The  courts  have 
sometimes  surrendered  the  powder  it  w^as  their  clear  duty  to  exer- 
cise, and  assumed  without  just  reason  that  the  legislative  judg- 
ment was  conclusive  and  closed  all  inquiry  and  forbade  all  in- 


-^  The  principle  is  so  familiar  and 
so  firmly  established  that  it  is 
hardly  necessary  to  cite  authori- 
ties, but  we  cite  a  few  of  the  mul- 
titude of  cases:  Boston  &c.  Co.  v. 
Massachusetts,  97  U.  S.  25,  24  L. 
ed.  989;  Railroad  Co.  v.  Richmond, 
96  U.  S.  521,  24  L.  ed.  734;  Buckley 
V.  New  York  &c.  R.  Co.,  27  Conn 
479;  Toledo  &c.  R.  Co.  v.  Jackson- 
ville, 67  111.  Z7,  16  Am.  Rep.  611 
Indianapolis  &c.  R.  Co.  v.  Kerche 
val,  16  Ind.  84;  Jamieson  v.  Indi 
ana  &c.  Co.,  128  Ind.  555,  28  N.  E 
76,  12  L.  R.  A.  652;  Jones  v.  Ga- 
lena &c.  Co.,  16  Iowa  6;  Kansas 
Pacific  R.  Co.  V.  Mower,  16  Kans. 
573;  Wilder  v.  Maine  &c.  R.  Co., 
65  Maine  ZZ2,  20  Am.  Rep.  698; 
Boston  &c.  R.  Co.  v.  County  Com- 
missioners, 79  JNIaine  386,  10  Atl. 
113;    Sawyer    v.    Vermont    &c.    R. 


Co..  105  :\Iass.  196;  State  v.  Hos- 
kins,  58  Minn.  35,  59  N.  W.  545, 
25  L.  R.  A.  759,  61  Am.  &  Eng. 
R.  Cas.  571;  Sloan  v.  Pacific  R. 
Co.,  61  Ma.  24,  21  Am.  Rep.  397; 
Horn  V.  Atlantic  &c.  Co.,  35  N.  H. 
169;  Cincinnati  &c.  R.  Co.  v.  Cole. 
29  Ohio  St.  126,  23  Am.  Rep.  729; 
Pennsylvania  Co.  v.  Riblet,  66  Pa. 
St;  164,  5  Am.  Rep.  360;  Thorpe  v. 
Rutland  &c.  R.  Co.,  27  Vt.  140,  62 
Am.  Dec.  625.  See  also  New  York 
&c.  R.  Co.  V.  Bristol,  151  U.  S. 
556,  14  Sup.  Ct.  437,  38  L.  ed.  269; 
Louisville  &c.  R.  Co.  v.  Kentuck5% 
161  U.  S.  677,  16  Sup.  Ct.  714,  40 
L.  ed.  849;  Chicago  &c.  R.  Co.  v. 
McGuire,  219  U.  S.  549,  31  Sup.  Ct. 
259,  55  L.  ed.  328;  Chicago  &c.  R. 
Co.  V.  Anderson,  182  Ind.  140,  105 
N.  E.  49. 


§  778 


KAILKOADS 


130 


vestigation.  So  they  have  in  some  instances  adjndged  the  snh- 
ject  to  be  within  the  poHce  power  ^\•hcn  it  was  not,  and,  again,  in 
other  instances,  they  have  tacitly  conceded  that  the  poHce  ])ower 
is  without  Hmit.  These  unsound  theories  and  undue  assumptions 
have  led  to  luijust  results  and  have  given  force  to  unconstitu- 
tional measures  oppressive  and  tyrannical  in  their  nature  and 
effect. 

§  778  (664).  The  police  power  is  fettered  by  limitations. — 
There  are  limitations  upon  the  police  power.  The  legislative 
judgment  is  not  ahvays  conclusive.  The  cotu'ts  are  not  liound 
to  inactivity  because  the  legislature  assumes  to  decide  that  a  reg- 
ulation it  prescribes  is  a  valid  exercise  of  the  police  power,  nor 
are  the  courts  invariably  concluded  by  the  legislative  judgment 
that  the  subject  upon  which  it  legislates  is  one  which  falls  within 
the  scope  of  the  police  power.'-'      When  the  question  is  one  of 


-~  Dobbins  v.  Los  Angeles,  195 
U.  S.  223,  25  Sup.  Ct.  18,  49  L.  ed. 
169,  and  authorities  there  cited. 
The  doctrine  we  assert  is  illus- 
trated by  the  cases  which  declare 
and  enforce  the  rule  that  the  legis- 
lature can  not  make  that  a  nuisance 
which  is  not,  in  fact,  a  nuisance. 
Janesville  v.  Carpenter,  77  Wis. 
288,  46  N.  W.  128,  8  L.  R.  A.  808, 
20  Am.  St.  123;  Mutton  v.  Camden, 
10  Vroom  (N.  J.)  122,  23  Am.  Rep. 
203:  O'Leary,  Ex  parte,  65  JNIiss. 
180,  3  So.  144,  7  Am.  St.  640;  Coe 
v.  Schultz,  47  Barb.  (N.  Y.)  64. 
The  Court  of  Appeals  of  New 
York,  in  Matter  of  Jacobs,  98  N.  Y. 
98,  50  Am.  Rep.  6Z6,  643,  after  cit- 
ing many  cases,  said:  "These  cita- 
tions are  sufficient  to  show  that  the 
police  power  is  not  without  its 
limitations,  and  that  in  its  exercise 
the  legislature  must  respect  the 
great  fundamental  rights  guaran- 
teed by  the  constitution.  If  this 
were    otherwise,   the   power   of   the 


legislature  would  be  practically 
without  limitation.  In  the  assumed 
exercise  of  the  police  power  in  the 
interest  of  health,  the  welfare  or 
safety  of  the  public,  every  right  of 
the  citizen  might  be  invaded  and 
everj^  constitutional  barrier  swept 
away."  The  doctrine  asserted  in 
the  case  last  cited  was  approved 
and  enforced  in  People  v.  Gillson, 
109  N.  Y.  389,  17  N.  E.  343,  4  Am. 
St.  465.  In  the  case  of  Toledo  &c. 
R.  Co.  v.  Jacksonville,  67  111.  2>7, 
16  Am.  Rep.  611,  the  court  thus 
stated  the  rule:  "What  are  rea- 
sonable regulations,  and  what  are 
subjects  of  police  powers,  must 
necessarily  be  judicial  questions. 
The  law-making  power  is  the  sole 
judge  when  the  necessity  exists, 
and  when,  if  at  all,  it  will  exercise 
that  right  to  enact  such  laws.  Like 
other  powers  of  government,  there 
are  constitutional  limitations  to  its 
exercise.  It  is  not  within  the 
power    of    the     gener  il     assembly, 


181 


CONTROL,    LOCATION'    AND    CONSTRUCTION 


§778 


power  or  no  power,  as,  for  instance,  whether  the  subject  is  one 
over  which  the  poHce  power  extends,  or  whether  there  was  power 
to  enact  the  particular  statute,  the  question  is  a  judicial  one  and 
is  for  the  courts.  It  is  always  the  duty  of  the  courts  to  decide 
whether  the  statute  is  in  truth  a  police  regulation  or  an  invasion 
of  substantial  rights  under  the  guise  of  a  police  regulation.  An 
arbitrary  assumption  that  a  subject  is  one  over  which  the  police 
power  extends  or  that  the  regulation  is  valid  as  an  exercise  of 
that  power  will  not  remove  the  question  from  the  domain  of  the 
judiciary.-^  To  affirm  that  the  legislature  may  by  an  arbitrary 
decision  of  its  own  foreclose  controversy  upon  such  a  question 
is  to  affirm  that,  upon  questions  concerning  the  highest  rights  of 
property,  the  legislative  power  is  unlimited.     Such  a  doctrine  is 


under  the  pretense  oi  exercising 
the  police  power  of  the  State,  to 
enact  laws  not  necessary  to  the 
preservation  of  the  '  health  and 
safety  of  the  community  that  will 
be  oppressive  and  burdensome 
upon  the  citizen.  If  it  should  pro- 
hibit that  which  is  harmless  in  it- 
self, or  command  that  to  be  done 
which  does  not  tend  to  promote 
the  health,  safety  or  welfare  of 
society,  it  would  be  an  unauthor- 
ized exercise  of  power,  and  it 
would  be  the  duty  of  the  courts  to 
declare  such  legislation  void."  In 
the  case  of  Lake  View  v.  Rose  Hill 
Cemetery  Co.,  70  111.  191,  22  Am. 
Rep.  71,  it  was  said:  "As  a  general 
proposition,  it  may  be  stated,  it  is 
the  province  of  the  law-making- 
power  to  determine  when  the  exi- 
gency exists,  calling  into  exercise 
this  power.  What  are  the  subjects 
of  its  exercise  is  clearly  a  judicial 
question.  There  must  necessarily 
be  constitutional  limitations  upon 
this  power.  It  is  essential  that 
such   regulations   must   have   refer- 


ence to  the  comfort,  safety  or  wel- 
fare of  society,  and,  when  applied 
to  corporations,  they  must  not  be 
in  conflict  with  any  of  the  provi- 
sions of  the  charter.  It  is  not 
lawful,  under  the  pretense  of  police 
regulations,  to  take  from  a  corpo- 
ration any  of  the  essential  rights 
and  privileges  conferred  by  the 
charter." 

-s  Lawton  v.  Steele,  152  U.  S. 
133,  137,  14  Sup.  Ct.  499,  501,  38 
L.  ed.  385;  Dobbins  v.  Los  An- 
geles, 195  U.  S.  223,  25  Sup.  Ct. 
18,  20,  49  L.  ed.  169;  Connolly  v. 
Union  Sewer  Pipe  Co.,  184  U.  S. 
540,  558,  22  Sup.  Ct.  431,  438,  46 
L.  ed.  679.  In  the  Slaughter 
House  cases,  16  Wall.  (U.  S.) 
36,  87,  21  L.  ed.  394,  the 
court  said:  "But .  under  the  pre- 
tense of  prescribing  a  police  regu- 
lation, the  state  can  not  be  per- 
mitted to  encroach  upon  any  of 
the  just  rights  of  the  citizen  which 
the  constitution  intended  to  secure 
against  abridgment." 


§  779 


RAILKOADS 


132 


directly  opposed  to  the  foundation  theory  of  our  government.-® 
The  question  whether  there  is  a  reasonable  necessity  for  the 
exercise  of  the  police  power  or  not,^"  and  the  question  whether 
the  subject  is  one  within  the  field  of  the  police  power  are  judicial 
questions  or  else  the  system  of  distributed  power  and  checks  and 
balances  is  an  empty,  impotent  abstraction. 

§  779  (665).  Subject  must  be  one  over  which  the  police  power 
extends — Cases  adjudging  statutes  invalid. — A  statute  professing 
to  make  a  ])olice  regulation  and  assuming  to  be  based  upon  that 
power  is  invalid,  if  it  be  clear  that  the  subject  is  not  one  within 
the  scope  of  that  power.-' ^  In  an  Illinois  case  the  statute  as- 
sumed to  require  railroad  companies  to  bear  the  expense  of 
coroners'  inquests  held  upon  persons  who  died  on  their  trains, 
and  also  the  expense  of  the  burial  of  such  i^ersons,  but  the  court 


2''  Tn  the  case  of  Loan  Associa- 
tion V.  Topeka,  20  Wall.  ( U.  S.) 
655,  663,  22  L.  ed.  455.  it  was  said: 
"The  theory  of  our  governments, 
state  and  national,  is  opposed  to 
the  deposit  of  unlimited  power 
anj^where.  The  executive,  the  leg- 
islative, and  the  judicial  branches 
of  these  governments  arc  all  of 
limited  and  defined  powers.  There 
are  limitations  on  such  power 
which  grow  out  of  the  essential 
nature  of  all  free  governments." 
Cases  decided  by  some  of  the 
courts  tacitly  disregard  or  are  un- 
mindful of  this  fundamental  prin- 
ciple. Some  of  the  expressions  in 
State  V.  Tfoskins,  58  Minn.  35,  59 
N.  W.  545,  25  L.  R.  \.  759,  61  Am. 
&  Eng.  R.  Cas.  571,  are  opposed 
to  this  doctrine. 

'"  See  generall}-  Lake  Shore  &c. 
R.  Co.  V.  Smith,  173  U.  S.  684.  19 
Sup.  Ct.  565,  43  L.  ed.  858;  Wash- 
ington &c.  Co.  V.  State,  18  Conn. 
53:     Philadelphia     &c.     R.     Co.     v. 


Bowers.  4  Houst  (Del.)  506;  Bailey 
V.  Philadelphia  &c.  R.  Co.,  4  Harr. 
(Del.)  389,  44  Am.  Dec.  593;  State 
V.  Noyes,  47  Maine  189;  Mayor  v. 
Radecke,  49  Md.  217,  33  Am.  Rep. 
239;  People  v.  Jackson  &c.  Co.,  9 
Mich.  284;  Sloan  v.  Pacific  R.  Co., 
61  Mo.  24.  21  Am.  Rep.  397;  Com- 
monwealtli  v.  Pennsylvania  &c.  Co., 
66  Pa.  St.  41,  5  Am.  Rep.  329; 
White's  Creek  &c.  Co.  v.  Davidson 
County,  3  Tenn.  Ch.  396.  Hut  the 
courts  will  not  lightly  interfere 
with  the  legislature  in  such  mat- 
ters. Missouri  &c.  R.  Co.  v.  Maj-. 
194  U.  S.  267,  24  Sup.  Ct.  638,  48 
L.  ed.  971. 

31  East  Side  Levee  &c.  Dist.  v. 
East  St.  Louis  &c.  Ry.  Co.,  279  111. 
123,  116  N.  E.  720,  723  (quoting 
text).  The  authorities  referred  to  in 
a  preceding  section  sustain  the 
statement  of  the  text,  and  our  im- 
mediate ])urposc  is  to  show  the  ap- 
plication of  the  general  doctrine. 


i;« 


CONTROL,    LOCATION   AND    CONSTRUCTION 


§  779 


rightly  declared  the  statute  unconstitutional.^-  The  police  power 
will  not  authorize  the  enactment  of  a  statute  declaring  a  rail- 
way depot  or  the  like  to  be  a  nuisance, ^^  for  such  a  structure  of 
itself  is  not  injurious  to  the  public  welfare.  It  is  held  that  a 
statute  which  assumes  to  make  a  railroad  company  liable  for 
stock  killed  by  its  trains,  where  there  is  no  negligence  on  the  part 
of  the  company,  is  unconstitutional."^     It  was  held  in  a  well-rea- 


32  Ohio  &c.  R.  Co.  V.  Lackey,  78 
111.  55,  20  Am.  Rep.  259.  The  court, 
it  is  proper  to  say,  does  not  discuss 
the  question  whether  the  statute 
could  be  upheld  upon  the  ground 
that  it  was  a  valid  exercise  of  the 
police  power,  but  it  is  evident  that 
the  court  did  not  regard  the  sub- 
ject of  the  statute  as  within  the 
scope  of  that  power.  But  see  Gano 
V.  Minneapolis  Railroad.  114  Iowa 
713,  719,  87  X.  W.  714,  55  L.  R.  A. 
263,  89  Am.  St.  393;  Gee  v.  Gee, 
190  U.  S.  557,  23  Sup.  Ct.  854.  47 
L.  ed.  1183-1185. 

33  State  V.  Jersey  City.  29  N.  J. 
L.  170.  See  Yates  v.  ^Milwaukee, 
10  Wall.  (U.  S.)  497,  19  L.  ed.  984. 

3*  Schenck  v.  Union  Pacific  R. 
Co..  5  Wyo.  430.  40  Pac.  840.  In 
the  case  the  court  said:  "The  prin- 
ciples upon  which  such  statutes  are 
held  to  be  unconstitutional  have 
been  so  often  discussed  that  a  new 
consideration  of  them  would  be 
unprofitable  and  tedious."  The 
court  cited  Jensen  v.  Union  Pa- 
cific R.  Co..  6  Utah  253.  21  Pac. 
994.  4  L.  R.  A.  724:  Zciglcr  v. 
South  &c.  R.  Co.,  58  Ala.  594: 
Denver  &c.  Railway-  v.  Outcalt.  2 
Colo.  App.  395.  31  Pac.  177:  Par- 
sons V.  Russell.  11  Mich.  113,  83 
Am.  Dec.  728;  Atchison  &c.  R.  Co. 
V.  Baty,  6  Nebr.  Z7,  29  Am.  Rep. 
356:  Taylor  v.  Porter,  4  Hill.   (N. 


Y.)  140,  40  Am.  Dec.  274;  Oregon 
&c.  R.  Co.  V.  Smally,  1  Wash.  206, 
23  Pac.  108,  22  Am.  St.  145.  See 
also  Birmingham  &c.  R.  Co.  v. 
Parsons,  100  Ala.  662,  13  So.  602, 
27  L.  R.  A.  263,  46  Am.  St.  92; 
Cottrel  V.  Union  Pac.  R.  Co.,  2 
Idaho  540,  21  Pac.  416;  Bielenberg 
V.  Montana  &c.  R.  Co.,  8  Mont. 
271,  20  Pac.  314,  2  L.  R.  A.  813.  38 
Am.  &  Eng.  R.  Cas.  275:  East 
Kingston  v.  Towle,  48  N.  H.  57, 
97  Am.  Dec.  575;  People  v.  Tighe, 
9  Misc.  607.  30  N.  Y.  S.  368;  Sioux 
Falls  V.  Kirby.  6  S.  D.  62.  60  N.  W. 
156,  25  L.  R.  A.  621.  Some  of  the 
cases  cited  bear  directly  upon  the 
point  that  where  there  is  a  right 
to  notice,  a  statute  which  is  pro- 
fessedly enacted  in  the  exercise  of 
the  police  power  is  invalid,  if  it 
deprives  the  partj^  of  notice,  but 
they  serve  to  show  that  the  exer- 
cise of  the  police  power  is  not 
beyond  judicial  investigation  as 
well  as  to  show  that  a  police  regu- 
lation can  not  override  constitu- 
tional limitations.  It  seems  difii- 
cult  to  reconcile  the  cases  holding 
invalid  statutes  assuming  tu  make 
railroad  companies  absolutely  lia- 
ble with  ^lathews  v.  St.  Louis  &c. 
R.  Co.,  121  ^lo.  298,  24  S.  W.  591,. 
2S  L.  R.  A.  161:  Union  &c.  R.  Co. 
v.  De  Busk,  12  Colo.  294.  3  L:  R. 
\.  350,    13   Am.   St.   221;   Atchison 


^779 


RAIIjROADS 


184 


soned  case  that  a  statute  assuming'  to  compel  persons  and  cor- 
porations to  pay  employes  in  full  upon  discharging  them,  al- 
though such  employes  by  their  wrongful  acts  may  have  caused 
injury  to  the  employer,  is  not  a  valid  exercise  of  the  police 
powers,  and  is  unconstitutional  as  to  individuals,  but  is  valid  as 
to  corporations  under  the  reserved  power  to  amend,^^  and  this 


&c.  R.  Co.  V.  Mathews,  174  U.  S. 
96,  19  Sup.  Ct.  609,  43  L.  ed.  909; 
Missouri  &c.  R.  Co.  v.  Beckwith, 
129  U.  S.  26,  9  Sup.  Ct.  207,  32  L. 
ed.  585,  and  other  cases  in  which 
statutes  making  railroad  companies 
absolutely  liable  for  injuries  caused 
by  fires  from  their  locomotives 
were  upheld.  There  is,  we  venture 
to  say,  notwithstanding  the  array 
of  authority,  reason  for  affirming 
that  in  the  class  of  cases  just  re- 
ferred to  the  doctrine  has  been 
pressed  too  far.  In  authorizing  the 
construction  and  operation  of  rail- 
roads the  legislature  necessarily 
authorizes  the  use  of  fire,  and  we 
can  not  perceive  how  a  lawful  and 
proper  use  of  that  which  is  lawful 
can  be  made  the  basis  of  a  statute 
inflicting  a  penalty,  in  the  form  of 
damages  upon  a  party  whether  that 
party  be  a  corporation  or  a  citizen, 
for  doing  in  a  lawful  mode  what 
the  party  is  authorized  by  law  to 
do.     See  post,  §§  1746,  1747. 

^^  Leep  v.  St.  Louis  &c.  R.  Co., 
58  Ark.  407,  25  S.  W.  75,  41  Am. 
St.  109.  In  the  opinion  in  the  case 
cited  the  court  referred  with  ap- 
proval to  the  cases  of  Ramsey  v. 
People,  142  111.  380,  Z2  N.  E.  364, 
17  L.  R.  A.  853:  Braceville  &c.  Co. 
V.  People,  147  111.  66,  35  N.  E.  62, 
22  L.  R.  A.  340,  37  Am.  St.  206; 
Commonwealth  v.  Perr}^  155  Mass. 
117,  28  N.  E.  1126,  14  1..  R.  A.  325, 


31  Am.  St.  533:  State  v.  Loomis, 
115  Mo.  307,  22  S.  W.  350,  21  L.  R. 
A.  789;  Godcharles  v.  Wigeman, 
113  Pa.  St.  431,  6  Atl.  354;  San 
Antonio  &c.  R.  Co.  v.  Wilson 
(Tex.),  White  &  W.  Civ.  Cas.  Ct. 
App.  §  323,  19  S.  W.  910;  State  v. 
Goodwill,  ?>?,  W.  Va.  179,  10  S.  E. 
285,  6  L.  R.  A.  621,  25  Am.  St.  863: 
State  v.  Fore  Creek  &c.  Co.,  33 
W.  Va.  188,  10  S.  E.  285,  6  L.  R.  A. 
359,  25  Am.  St.  "891,  and  disap- 
proved the  cases  of  State  v.  Peel 
&c.  Co.,  36  W.  Va.  802,  15  S.  E. 
1000.  17  L.  R.  A.  385,  and  Hancock 
V.  Yaden,  121  Ind.  366,  23  N.  E. 
253,  6  L.  R.  A.  576.  16  Am-.  St.  396. 
The  court  justly  discriminated  the 
decision  in  Hancock  v.  Yaden,  and 
said  that  the  "statute  was  held  to 
be  constitutional"  on  the  ground 
that  "it  protected  and  maintained 
the  medium  of  payment  established 
by  the  sovereign  power  of  the  na- 
tion." The  holding  in  Hancock  v. 
Yaden  as  cited  in  Leep  v.  St.  Louis 
&c.  R.  Co.  supra,  proceeds  upon 
the  theory  that  the  state  may  pro- 
tect the  money  of  the  national  gov- 
ernment by  interdicting  parties 
from  contracting  in  advance  that 
some  other  thing  than  money  shall 
be  taken  as  payment.  See  gener- 
ally State  V.  Brown  &c.  Co.,  18 
R.  I.  16,  25  Atl.  246,  17  L.  R.  A. 
856.  Blacklisting  statutes  requiring 
corporations    to    give    a    clearance 


335  CONTUOL.    LOCATION    AND    COXSTIM   CTIOX  §  780 

view  as  to  corporations  was  also  taken  by  the  Supreme  Court  of 
the  United  States.'"'  A  statute  providing-  that,  upon  fding-  a  sworn 
statement  showing  that  the  company  is  indebted  for  work  and 
labor  performed  or  for  ser\ices  rendered  it,  the  court  should 
issue  an  injunction  restraining  the  coni])any  from  operating  its 
road,  was  held  unconstitutional  ui)on  the  ground  that  it  made  it 
obligatory  upon  the  courts  to  grant  the  injunction  and  deprived 
the  company  of  a  hearing,  and,  in  effect,  was  a  taking  of  the 
property  without  due  process  of  law/'^  And  a  statute  providing 
that,  in  an  action  against  a  railroad  company  for  personal  injury 
inflicted  in  another  state,  it  shall  not  be  competent  for  the  com- 
l)any  to  plead  or  prove  the  decisions  or  statute  of  such  other  state 
as  a  defense,  has  likewise  been  held  unconstitutional.-"'^ 

§780   (666).   Police  power — Legislative  and  judicial  questions. 

— It  is  clear  that  if  the  question  which  the  legislature  is  required 
to  decide  is  a  legislative  one,  the  decision  of  the  legislature  is  con- 
clusive."^ The  difficulty  is  to  determine  what  are  and  what  are 
not  legislative  questions.  So  far  as  concerns  matters  of  policy 
and  expediency  there  is  no  doubt  that  the  legislative  decision  is 
final. •*°  But  it  is  by  no  means  within  the  legislative  power  to 
shut  out  judicial  investigation  and  judgment.  It  is  true  that 
judicial  investigation  very  often  ends  with  the  discovery  that  the 
question  is  one  of  policy  or  expediency.     This  is  far  from  being 

card    stating    the    reason    of    dis-  Ind.  25,  62  N.  E.  488,  56  L.  R.  A. 

charge  of  a  servant  have  also  been  468,  92  Am.  St.  293.     See  also  Ho- 

held  invalid.    St.   Louis   S.   W.   Ry.  vey   v.    Elliott,    167   U.    S.    409,    17 

Co.  of  Tex.  V.  Griffin,  106  Tex.  477,  Sup.  Ct.  841,  42  L.  ed.  215. 

171    S.  W.  703.     See  also   Wallace  so  State  v.  Wiley,  109  Mo.  439,  19 

V.  Georgia  &c.  R.  Co.,  94  Ga.  732,  S.  W.  197;  Stockton  v.   Powell,  29 

22  S.  E.  579;  Atchison  &c.  R.  Co.  Fla.  1,  10  So.  688,  15  L.   R.  A.  42. 

v.    Brown,  80  Kans.   312,   102   Pac.  50.  Elliott  Gen.  Prac.  §  148. 

459,  23   L.   R.  A.    (N.    S.)   247,   133  "The  principle  is  a  familiar  one 

Am.  St.  213.  and  was  thus  stated  in  the  License 

36  St.  Louis  &c.  Co.  v.  Paul,  173  Tax  Cases.  5  Wall.  (U.  S.)  462: 
U.  S.  404,  19  Sup.  Ct.  419,  43  L.  ed.  -This  coin-t  can  know  nothing  of- 
746.  public  policy  except  from  the  con- 

37  Creech  v.  Pittsburgh  &c.  R.  stitution  and  the  laws,  and  the 
Co..  29  W.  L.  Bull.  112.  course  of  administration  and  deci- 

38  Baltimore  R.  Co.  v.  Reed,  158  sion.     It  has  no  legislative  powers. 


^  780 


RAILROADS 


136 


true,  h(i\vc\cr,  in  all  cases.  It  often  becomes  necessar\'  for  the 
cotirts  to  ascertain  and  decide  whether  a  constitutional  provision 
is  viohited  imdcr  the  ])retense  of  exercising  the  police  power.  The 
legfislature  cannctt  make  that  a  legislative  question  which  is  a 
judicial  one.  If,  for  instance,  a  trade  or  occupation  is  not  in- 
jurious to  the  community  the  les^islature  cannot  arbitrariK'  de- 
cide that  it  is  injurious,  and  by  that  decision  exclude  the  inter- 
ference of  the  judiciary."*'  If  the  case  is  one  wherein  due  process 
of  law  requires  notice,  then  the  legislature  cannot  arbitrarily 
decide,  without  ])ro\iding  for  notice,  that  an  act  shall  or  shall 
not  be  done."*-  "Due  ]H-ocess  of  law"  and  the  "law  of  the  land" 
are  terms  of  great  force,  and  the  requirements  made  by  such 
terms  are  not  satisfied  by  a  legislative  enactment  \\hich  denies  a 
hearing  where  a  hearing  is  re(|uired  b)-  the  organic  law.*'  The 
power  to  adjudicate  where  adjudication  is  necessary  is  judicial 
and  not  legislative.'*     If,  therefore,  an  adjudication  is  essential, 


It  can  not  modify  or  amcMid  any 
li'.i^isl.'itive  acts.  It  can  not  cxani- 
ino  anjr  questions  as  expedient  or 
inexpedient,  as  politic  or  impolitic. 
Considerations  of  that  sort  must 
be  addressed  to  the  legislature. 
Questions  of  policy  there  are  con- 
cluded here."  Sec  also  McGuire  v. 
Chicago  &c.  R.  Co.,  131  Iowa  340, 
108  N.  W.  902. 

41  State  V.  Moofe.  113  N.  Car. 
697,  18  S.  E.  342,  22  L.  R.  A.  472; 
Rertholf  v.  O'Reilly,  74  N.  Y.  509, 
30  Am.  Rep.  323;  People  v.  Marx, 
99  N.  Y.  Zn,  2  N.  E.  29,  52  Am. 
Rep.  34:  ante,  §  778. 

42Tlie  principle  considered  in  tiio 
text  is  illustrated  by  the  cases  which 
hold  that  although  the  legislature 
may  confer  authority  to  summarily 
seize  propertj^  it  can  not  authorize 
a  destruction  of  the  property  with- 
out giving  the  nwner  a  hearing. 
Lowrj-^  v.  Rainwater,  70  Mo.  152, 
35  Am.  Rep.  420;  .Vttorney-Gen.  v. 


Justices  &c..  103  :\rass.  456;  State 
V.  Rol)])ins,  124  Ind.  308,  24  X.  E. 
978,  8  L.  R.  A.  438.  See  Lincoln 
v.  Smith,  27  Vt.  328;  Wynehamer 
V.  People,  13  N.  Y.  378;  People  v. 
Haug,  68  ^lich.  549,  Z7  N.  \V.  21. 
See  also  authorities  cited  in  note  to 
the  preceding  section,  and  Chicago 
&c.  R.  Co.  V.  Kieth,  67  Ohio  St. 
279,  65  N.  E.  1020,  60  L.  R.  A.  525. 

43  Fletcher  v.  Peck,  6  Cranch 
(U.  S.)  87,  3  L.  ed.  162;  Goshen  v. 
Stonington,  4  Conn.  209,  10  Am. 
Dec.  121;  Trustee  &c.  v.  Bailey.  10 
Fla.  238;  Taylor  v.  Porter,  4  Hill 
(N.  Y.)  140,  40  Am.  Dec.  274;  Dash 
V.  ^^^:l  Kleeck,  7  Johns.  fN.  Y.) 
477,  5  Am.  Dec.  291;  Hoke  v.  Hen- 
derson, IS  N.  Car.  1,  25  Am.  Dec. 
677;  Ervine's  Appeal,  16  Pa.  St. 
256,  266,  55  Am.  Dec.  499;  Norman 
V.  Heist,  5  Watts  &  S.  (Pr.  St.) 
171. 

44  Taylor  v.  Place,  4  R.  I.  324; 
Merrill   v.  Sherburne,  1   N.  H.  199, 


I'M  CONTKOL,    LOCATION    AND    CONSTKl 'CTION  §781 

the  legislature,  while  it  may  prescril^e  resulations,  cannot  make 
an  adjudication,  that  is.  it  cannot  adjudicate  in  the  sense  that  a 
court  of  justice  (k)es  when  it  pronounces  judgment.  If  the  case 
he  one  in  which  the  organic  law  secures  to  the  party  a  hearing, 
then  the  legislature  cannot  abridge  that  right  by  arrogating  to 
itself  the  ])ower  to  decide  arbitrarily  and  conclusively.  The  duty 
of  the  courts  is  to  ascertain  if  the  case  is  one  in  which  the  party 
is  entitled  to  a  hearing,  and.  in  the  event  that  it  be  found  that  he 
is  entitled  to  a  hearing,  overthrow  the  statute  if  it  denies  the  right 
to  a  hearing.  So  it  is  often  necessary  for  the  courts  to  ascertain 
and  decide  whether,  under  the  pretense  of  a  police  regulation, 
there  is,  in  fact,  an  attempt  to  authorize  the  taking  of  property 
without  compensation.  It  has  been  adjudged  that  the  legislature 
cannot  arbitrarily  fix  the  value  of  animals  killed  by  the  trains  of 
a  railroad  company,  for  the  question  of  value  is  one  upon  which 
there  is  a  right  to  "a  day  in  court. "■*''  It  has  also  been  held  that 
the  legislature  cannot,  under  the  police  power,  authorize  a  rail- 
road company  to  utilize  a  public  highway  as  its  roadbed  in  ele- 
vating its  tracks  to  abolish  a  grade  crossing  without  niaking  com- 
]:)ensation  for  the  destruction  of  access  of  the  abutter  who  owns 
the  fee.*" 

§  781    (667).   The  police  power  and  the  commerce  clause  of  the 
federal  constitution. — The  police  powder  is  resident  in  the  states,"*^ 

203.    8    Am.    Dec.    52;     People    v.  only  after  trial." 

Board    of    Supervisors,    16    N.    Y.  *6  iMcKeon  v.   N.  Y.   &c.  R.   Co., 

424;  Cincinnati  &c.  R.  Co.  v.  Com-  75  Conn.  343,  53  Atl.  656,  61  L.  R. 

missioners,   1    Ohio   St.   77;   Green-  A.  730;   affirmed  in   189  U.   S.   508, 

ouoh  V.  Greenough,  11  Pa.  St.  489,  23  Sup.  Ct.  853. 

51  Am.  Dec.  567.  "7  Muglcr    v.    Kansas,    123    U.    S. 

45Wadsworth    v.    Union    P\acific  623,  8  Sup.Ct.  273,  31    L.  ed.  205: 

R.   Co..    18   Colo.   600,  33   Pac.  515,  Prigg  v.  Pennsylvania,  16  Pet.  (U. 

23   L.    R.   A.   812,   36   Am.    St.   309,  S.)  539,  10  L.  ed.  417;  United  States 

56   Am.    &    Eng.    R.    Cas.    145.     In  v.  De  Witt,  9  Wall.   (U.  S.)  41.  19 

the-    case     referred     to     the     court  L.  ed.  593;  Patterson  v.  Kentucky, 

quoted    the    well-known    statement  97  U.    S.    501.   24    L.    ed.    1115:    Ta- 

of    Webster:     "By    the    law    of   the  niieson  v.  Indiana  &c.  Co.,  128  Ind. 

land    is    most   clearly   intended   the  555,  28  N.   E.   76,  12  L.   R.  A.  652; 

general    law;    a    law    which    hears  Railroad  Com.  v.  Grand  Trunk  &c. 

bet'ore  it  condemns,  which  proceeds  R.  Co.,  179  Ind.  255,  100  N.  E.  852. 
ui>iin  inquirj^  and  renders  jiulgment 


§78]  KAIT.KOADS  138 

and  may  be  exercised  by  tliem  upon  interstate  raih-oads.  Ijut  not 
in  such  a  way  as  to  unlawfull}'  interfere  with  commerce  between 
the  states.'^  'I'he  commerce  clause  of  the  federal  constitution  is, 
as  we  have  seen,  a  limitation  upon  the  police  power  of  the  states, 
but  it  does  not  destroy  that  power.  Where,  however,  the  power 
of  the  federal  government  and  the  i)Ower  of  the  state  to  enact 
police  regulations  come  in  conllict,  the  federal  power  will  pre\'ail. 
It  follows  from  the  rule  just  stated  that  if,  under  pretense  of  pre- 
scribing a  ])olice  regulation,  the  legislature  in  fact  assumes  to 
regulate  interstate  commerce,  the  statute  will  be  void.'*"  But 
l)olice  regulations  may  be  valid  although  they  do  affect  inter- 
state commerce,  provided  they  are  not  in  fact  regulations  of  com- 
merce between  the  states.'^''     And  this  is  held  to  be  true  even 

■*8  Western    Union    Tel.     Co.    v.  967,   and    elaborate   note   reviewing 

Pendleton,    122   U.    S.    347,    7    Sup.  most  of  the  recent  cases  upon  the 

Ct.   1126,  30   L.   ed.   1187;   Bowman  subject. 

V.    Chicago    &c.    R.    Co.,    125   U.   S.  49  Chy  Lung  v.  Freeman.  92  U.  S. 

465,  8  Sup.  Ct.  689,  31   L.   ed.  700;  275,   23    L.   ed.    550;    Henderson    v. 

Chicago   &c.   R.   Co.  v.   Minnesota,  :\rayor  &c.  of  New  York,  92  U.  S. 

134    U.   S.  418,   10  Sup.   Ct.  462,  33  259,  23  L.  ed.  543;  Hannibal  &c.  R. 

L.    ed.    972;    Leisy   v.    Hardin,    135  Co.  v.   Husen,  95  U.  S.  465,  24  L. 

U.  S.  100,  10  Sup.  Ct.  681.  34  L.  ed.  ed.  527;  Kimmish  v.  Ball,  129  U.S. 

128;   Lyng  v.   Michigan,   135  U.   S.  217,  9  Sup.  Ct.  277,  32  L.  ed.  695; 

161,  10  Sup.  Ct.  725,  34  L.  ed.  150;  Minnesota  v.  Barber,  136  U.  S.  313, 

Wilkerson    v.    Rahrcr.    140    U.    S.  34  L.  ed.  455.     See  Telegrapli   Co. 

545,  11  Sup.  Ct.  865,  35  L.  cd.  572;  v.  Texas,  105  U.  S.  460,  10  Sup.  Ct. 

Plumley  v.  Commonwealth.  155  U.  862,  26  L.  ed.  1067;  Pensacola  Tel. 

S.   461,   15   Sup.    Ct.    154,   39   L.   ed.  Co.  v.  Western  Union  Tel.  Co.,  96 

223;    Kansas    City    So.    Ry.    Co.    v.  U.    S.    1,    24    L.    cd.    708:    Central 

Kaw    Valley    Drainage    Dist.,    233  Georgia   R.    Co.   v.   Grocsbeck,    175 

U.  S.  75,  34  Sup.  Ct.  564.  58  L.  ed.  Ala.  189,  57  So.  380. 

857,  and  cases  cited;  United  States  =«  Western     Union     Tel.     Co.    v. 

V.    Fiscus,   42    Fed.   395;    Beine,   In  Pendleton,  122  U.  S.  347,  7  Sup.  Ct. 

re,  42  Fed.  545;  American   &c.  Co.  1126,    30    L.    ed.    1187.      The    court 

V.   Board   &c.,  43   Fed.  609;   Spick-  said  in   the   case   cilod    that:    "Un- 

Icr,   In  re,  43   Fed.   653,  659;   State  doubtedly  under  the  reserved  pow- 

V.  Gooch,  44  Fed.  276;  Spellman  v.  ers  of  the   state,  which   are   des-ig- 

New  Orleans,  45  Fed.  3;  Scott,  Ex  nated  under  that  somewhat  ambig- 

parte,   66    h'ed.   45;    Cuban    &c.    Co.  uous   term   of  'police   powers,'   reg- 

V.  Fitzpatrick,  66  Fed.  63:  Seaboard  ulations  may  be  prescribed  for  the 

Air  Line  Ry.  v.  Blackwell,  143  Ga.  good   order,   peace,   and   protection 

237,  84  S.  K.  472,  Ann.  Cas.  1917A,  of   the    community."      In    Hannibal 


]  .'J!) 


CONTROL^   LOCATION    AND   CONSTRUCTION 


§781 


where  cono-ress  has  acted  upon  the  subject  when  there  is  no  re- 
pugnancy and  congress  has  shown  no  intention  to  cover  it.^^ 


&c.  R.  Co.  V.  ITuscn,  95  U.  S.  465, 
24  L.  ed.  527,  the  court  said:  "Many 
acts  of  a  state  may,  indeed,  affect 
commerce  without  amounting  to 
any  regulation  of  it  in  the  consti- 
tutional sense  of  the  term"  Simp- 
son V.  Shepard,  230  U.  S.  352, 
33  Sup.  Ct.  729,  57  L.  ed.  1511, 
48  L.  R.  A.  (N.  S.)  1151.  See 
Sherlock  v.  Ailing,  93  U.  S.  90. 
23  L.  ed.  819;  Siebold,  Ex  parte, 
100  U.  S.  371,  25  L.  ed.  717;  Wil- 
son V.  McNamee,  102  U.  S.  572,  26 
L.  ed.  234:  Smith  v.  Alabama  &c. 
R.  Co.,  124  U.  S.  465,  8  Sup.  Ct. 
564,  31  L.  ed.  509;  Nashville  &c.  R. 
Co.  V.  Alabama,  128  U.  S.  96,  9 
Sup.  Ct.  28,  32  L.  ed.  352;  Pitts- 
burg &c.  Coal  Co.  V.  Bates,  156 
U.  S.  577,  15  Sup.  Ct.  415.  39  L.  ed. 
538;  Seaboard  Air  Line  Ry.  Co.  v. 
Black-well,  143  Ga.  237,  84  S.  E. 
472,  Ann.  Cas.  1917A,  967;  McGuire 
V.  Chicago  &c.  R.  Co.,  131  Iowa 
340,  108  N.  W.  902;  State  v.  Penny, 
19  S.  Car.  218.  Many  authorities 
are  cited  and  reviewed  in  Railroad 
Com.  V.  Grand  Trunk  &c.  R.  Co., 
179  Ind.  255,  260,  100  N.  E.  852. 
See  also  upon  the  general  subject 
the  notes  in  7  Ann.  Cas.  5  and  13 
Ann.  Cas.  147,  and  Ann.  Cas. 
1917A,  972-997. 

siReid  V.  Colorado,  187  U.  S. 
137,  23  Sup.  Ct.  92,  47  L.  ed.  108; 
Missouri  &c.  Ry.  Co.  v.  Harris. 
234  U.  S.  412.  34  Sup.  Ct.  790,  58 
L.  ed.  1377.  But,  as  shown  by  the 
same  authorities,  when  Congress 
has  acted  and  occupied  the  field, 
within  its  jurisdiction,  such  exer- 
cise   of    its    authority    overrides    or 


supersedes  state  action  upon  the 
subject.  See  also  Northern  Pac.  R. 
Co.  V.  Washington,  222  U.  S.  370, 
32  Sup.  Ct.  160,  56  L.  ed.  237;  Erie 
R.  Co.  V.  New  York,  233  U.  S.  671, 
34  Sup.  Ct.  756,  760,  58  L.  ed.  1149, 
52  L.  R.  A.  (N.  S.)  266,  and  cases 
cited  in  note.  Many  additional  au- 
thorities are  reviewed  in  Staley  v. 
Illinois  Cent.  R.  Co.,  268  111.  356, 
109  N.  E.  342.  And  the  following 
propositions  upon  the  general  sub- 
ject are  stated  as  settled  in  South- 
ern R.  Co.  V.  Railroad  Com.,  179 
Ind.  23,  31-35,  100  N.  E.  ,337.  and 
numerous  authorities  are  there 
cited  in  support  of  each  one  of 
them:  1.  The  power  of  regulating 
commerce  "among  the  states"  is  in 
congress,  and  the  subject  of  exclu- 
sive federal  control.  2.  When  con- 
gress does  act,  and  its  action  cov- 
ers the  subject-matter,  its  action  is 
exclusive  as  to  interference.  3.  Un- 
til and  unless  congress  does  act, 
and  its  action  covers  the  subject- 
matter,  the  states  may  act.  4.  So 
long  as  the  action  of  the  states  is 
not  repugnant  to,  does  not  inter- 
fere with,  place  burdens  upon,  or 
undertake  to  regulate  interstate 
commerce,  or  is  mere  police  regu- 
lation, their  action,  though  in  aid 
of  interstate  commerce,  is  not  in- 
valid, unless  it  is  a  direct  inter- 
ference. 5.  It  is  not  enough  to 
render  the  state  law  invalid  that  it 
is  similar  to  the  federal  act  upon 
the  same  subject;  it  must  in  oper- 
ation interfere  directly  or  substan- 
tially with  interstate  commerce, 
and  not  lie  an  incidental  or  casual 


S  782 


RAILROADS 


140 


§782  (668).  Regulations  that  have  been  held  valid — Miscel- 
laneous.— It  is  now  lirnily  settled  that  statutes  requiring  railroad 
companies  to  fence  their  tracks  are  valid.''-  Railroad  companies 
may  be  compelled  to  conduct  examinations  to  ascertain  the  quali- 
tications  of  their  employes."''*  It  has  ])een  held  that  a  statute  pri)- 
hibiting-  railroad  companies  from  making  "flying"  or  "running 
switches,"  and  making  them  liable  to  a  person  injured,  although 


interference,  or  remotely  affect  it 
hurtfully.  6.  Where  both  the  acts 
of  congress  and  of  the  state  make 
a  defined  act  an  offense,  the  com- 
mission of  the  act  may  be  an  of- 
fense against  each  and  punishable 
by  each. 

52  The  decisions  upon  this  ques- 
tion are  very  numerous,  but  the 
rule  is  so  well  established  that  it 
is  only  necessary  to  cite  a  few  of 
the  many  cases:  Missouri  Pac.  R. 
Co.  V.  Humes,  115  U.  S.  512,  6  Sup. 
Ct.  110,  29  L.  ed.  463;  Bulkley  v. 
New  York  &c.  R.  Co.,  27  Conn. 
479;  Illinois  Central  R.  Co.  v.  Ar- 
nold, 47  111.  173;  New  Albany  &c. 
R.  Co.  V.  Tilton,  12  Ind.  3,  74  Am. 
Dec.  195;  Jones  v.  Galena  &c.  R. 
Co.,  16  Iowa  6;  Kansas  &c.  R.  Co. 
V.  Mower,  16  Kans.  573;  O'Bannon 
V.  Louisville  &c.  R.  Co.,  8  Bush 
(Ky.)  348;  Owensboro  &c.  R.  Co. 
V.  Todd,  91  Ky.  175,  15  S.  W.  56, 
11  L.  R.  A.  285;  Wilder  v.  Maine 
&c.  R.  Co.,  65  Maine  332;  Sawyer 
V.  Vermont  &c.  R.  Co.,  105  Mass. 
196;  Winona  &c.  R.  Co.  v.  Wal- 
dron,  11  Minn.  515,  88  Am.  Dec. 
100;  Gorman  v.  Pacific  &c.  R.  Co., 
26  Mo.  441,  72  Am.  Dec.  220;  Bur- 
lington &c.  R.  Co.  V.  Webb,  18 
Nebr.  215,  24  N.  W.  706.  53  Am. 
Rep.  809;  Horn  v.  Atlantic  &c.  R. 
Co.,  35  N.  H.  169;  Corwin  v.  New 
York    &c.    R.    Co.,    13    N.    Y.    42; 


Pennsylvania  Co.  v.  Riblct,  66  Pa. 
St.  164,  5  Am.  Rep.  360;  Thorpe  v. 
Rutland  &c.  R.  Co.,  27  Vt.  140,  62 
Am.  Dec.  625;  Quackenbush  v.  Wis- 
consin &c.  R.  Co.,  62  Wis.  411.  52 
N.  W.  519.  In  the  case  of  the 
Birmingham  &c.  R.  Co.  v.  Parsons, 
100  Ala.  662,  13  So.  602,  27  L.  R.  A. 
263,  46  Am.  St.  92,  a  different  view 
of  the  question  is  taken,  the  court 
holding  that  as  the  legislature  may 
make  the  duty  to  build  fences  ab- 
solute it  may  leave  the  question 
whether  a  fence  shall  be  built  to 
the  decision  of  the  land-owner.  In 
that  case  the  court  sanctions  the 
doctrine  that  land-owners  may  re- 
lease the  company  from  the  duty 
to  fence,  but  we  suppose  that  a 
release  by  a  land-owner  would  not 
avail  the  company  if  the  breach  of 
duty  to  fence  was  the  proximate 
cause  of  an  injury  to  a  passenger 
or  other  person  having  a  right  of 
action  against  the  damages  for  in- 
juries resulting  from  negligence. 

33  Nashville  &c.  R.  Co.  v.  State, 
83  Ala.  71,  3  So.  702;  Smith  v.  Ala- 
bama, 124  U.  S.  465,  8  Sup.  Ct.  564,' 
31  L.  ed.  508;  Nashville  &c.  R.  Co. 
V.  Alabama,  128  U.  S.  96,  9  Sup. 
Ct.  28,  32  L.  ed.  352;  McDonald  v. 
State,  81  Ala.  279,  2  So.  829.  In 
Nashville  &c.  R.  Co.  v.  Alabama, 
128  U.  S.  96,  9  Sup.  Ct.  28,  32  L. 
cd.  352,   it  was   said   in   the  course 


141 


CONTROL,  LOCATION  AND  CONSTRUCTION 


§782 


such  person  is  guilty  of  contributory  negligence,  is  a  valid  ex- 
ercise of  the  police  power. ''^  So,  too,  there  are  decisions  that  it  is 
competent  for  the  legislature  to  enact  a  law  applicable  exclu- 
sively to  railroad  companies,  prescribing  who  shall  and  who 
shall  not  be-  deemed  fellow  servants  of  a  common  master,^^  It 
has  been  held  that  a  statute  making  railroad  companies  abso- 
lutely liable  to  persons  injured  on  their  trains,  except  where  the 
injury  is  attributable  to  the  criminal  negligence  of  the  person 
injured  or  to  a  violation  of  a  rule  or  regulation  of  the  company, 
is  constitutional.""'  Statutes  requiring  trains  to  stop  at  crossings 
of  other  roads,  at  county  seats  and  the  like,  have  been  held 
valid. ^"     And   even   a   statute   requiring  railroad    companies    to 


of  the  opinion  that  the  company 
could  be  compelled  to  bear  the  ex- 
pense of  such  examinations.  Louis- 
ville &c.  R.  Co.  v.  Baldwin,  85  Ala. 
619,  5  So.  311,  7  L.  R.  A.  266,  38 
Am.  &  Eng.  R.  Cas.  5. 

5*  Jones  V.  Alabama  &c.  R.  Co., 
n  Miss.  32,  16  So.  379.  That  such 
a  statute  as  the  one  under  consid- 
eration in  the  case  cited  is  valid 
where  the  switches  are  made  en- 
tirely on  the  exclusive  private 
property  of  the  company  is  not  so 
clear  on  principle,  but  the  general 
trend  of  the  decisions  seems  to 
warrant  the  conclusion  that  such 
a  statute  is  valid,  although  there 
is  conflict  upon  the  general  ques- 
tion. 

^•'  Missouri  Pac.  R.  Co.  v.  Mackey, 
127  U.  S.  205,  8  Sup.  Ct.  1161,  Z2 
L.  ed.  107;  Georgia  R.  Co.  v.  Ivey. 
IZ  Ga.  499,  28  Am.  &  Eng.  R.  Cas. 
392;  Georgia  &c.  R.  Co.  v.  Miller. 
90  Ga.  571,  16  S.  E.  939;  Pittsburgh 
&c.  R.  Co.  V.  Montgomery,  152  Ind. 
1,  49  N.  E.  582,  69  L.  R.  A.  75,  71 
Am.  St.  300:  Pittsburgh  &c.  R.  Co. 
V.  Hosea,  152  Ind.  412,  53  N.  E. 
419;    Indianapolis  Union  R.   Co.   v. 


Houlihan,  157  Ind.  494,  60  N.  E. 
943,  54  L.  R.  A.  787;  Missouri  Pac. 
R.  Co.  V.  Mackey,  ZZ  Kans.  298,  6 
Pac.  291 ;  Herrick  v.  Minneapolis 
&c.  R.  Co.,  31  Minn.  11,  16  N.  W. 
413,  47  Am.  Rep.  771,  11  Am.  & 
Eng.  R.  Cas.  256;  Campbell  v. 
Cook,  86  Tex.  630,  26  S.  W.  486, 
.40  Am.  St.  878;  Austin  Rapid 
Transit  Co.  v.  Groethe,  88  Tex. 
262.  31  S.  W.  197.  See  generally 
as  to  regulation  of  the  relation 
of  master  and  servant.  Ten- 
Hour  Law,  In  re,  24  R.  I.  603, 
54  Atl.  602.  61  L.  R.  A.  612;  Atchi- 
son &c.  R.  Co.  V.  Matthews,  174 
U.  S.  96,  19  Sup.  Ct.  609,  43  L.  ed. 
909:  St.  Louis  &c.  R.  Co.  v.  Paul, 
173  U.  S.  404,  19  Sup.  Ct.  491,  43 
L.  ed.  746.  This  subject  is  more 
fully  considered  in  a  subsequent 
volume. 

"6  Union  Pacific  R.  Co.  v.  Porter, 
38  Nebr.  226,  56  N.  W.  808,  55  L. 
R.  A.  610.  See  also  McGuire  v. 
Chicago  &c.  R.  Co.,  131  Iowa  340, 
108  N.  W.  902. 

^"  Illinois  Central  R.  Co.  v.  Peo- 
ple, 143  111.  434.  2,1  N.  E.  173,  19 
L.    R.    A.    119    (reversed,    however, 


§782 


RAILROADS 


142 


stop  their  trains  for  five  minutes  at  each  station  on  the  line  of 
their  roads  has  been  upheld, ^^  but  it  seems  to  us  that  the  deci- 
sions upholding  the  statute  are  of  doubtful  soundness.  The 
Supreme  Court  of  Illinois  holds  that,  under  the  police  i)ower. 


in  163  U.  S.  142,  16  Sup.  Ct.  1096, 
41  L.  ed.  107);  People  v.  Louisville 
&c.  R.  Co.,  120  111.  48,  10  N.  E. 
657;  Chicago  &c.  R.  Co.  v.  Suffern, 
129  111.  274;  Chicago  &c.  R.  Co.  v. 
People,  105  111.  657;  Ohio  &c.  R. 
Co.  V.  People,  29  111.  App.  561.  See 
also  St.  Louis  &c.  R.  Co.  v. 
B'Shcars,  59  Ark.  237,  27  S.  W.  21, 
61  Am.  &  Eng.  R.  Cas.  556;  State 
V.  Chicago  &c.  R.  Co.,  239  Mo.  196, 
143  S.  W.  785;  Missouri  Pac.  R. 
Co.  V.  Kansas,  216  U.  S.  262,  30 
Sup.  Ct.  330,  54  L.  ed.  472;  Chicago 
&c.  R.  Co.  V.  Oglesby,  198  Fed. 
153.  The  question  as  to  whether  a 
state  may  require  interstate  trains 
to  stop  at  certain  stations  seems  to 
depend  largely  upon  the  purpose 
and  effect  of  the  law,  which  in 
turn  may  depend  largely  upon 
whether  the  station  has  adequate 
service.  If  it  has,  such  a  law  is 
held  invalid,  though  it  may  be 
.valid  where  there  is  no  other  ade- 
quate service  and  no  reasonable  fa- 
cilities are  furnished.  Herndon  v. 
Chicago  &c.  R.  Co.,  218  U.  S.  135, 
30  Sup.  Ct.  633,  54  L.  ed.  970;  Chi- 
cago &c.  R.  Co.  V.  Wisconsin  R. 
Com..  237  U.  S.  220,  35  Sup.  Ct.  560. 
59  L.  ed.  926;  St.  Louis  &c.  R.  Co. 
V.  Langer,  29  Okla.  691,  119  Pac. 
126,  44  L.  R.  A.  (N.  S.)  478;  Chi- 
cago &c.  R.  Co.  V.  Railroad  Com., 
152  Wis.  654,  140  N.  W.  296.  The 
English  cases  hold  that  an  agree- 
ment to  stop  trains  at  a  particular 
station  for  a  designated  length  of 
time  is  valid  and  enforceable.   Rigliy 


V.  Great  Western  &c.  R.  Co.,  14 
M.  &  W.  811.  See  Phillips  v.  Great 
Western  &c.  R.  Co.,  L.  R.  7  Ch. 
409;  Greene  V.  West  Cheshire  Lines 
&c.,  L.  R.  13  Eq.  44,  41  L.  J.  Ch. 
17;  Raphael  v.  Thames  Valley  &c. 
R.  Co.,  L.  R.  2  Ch.  147;  Turner  v. 
London  &  South  Western  &c.  R. 
Co.,  L.  R.  17  Eq.  561;  Burnett  v. 
Great  North  &c.  R.  Co.,  L.  R.  10 
App.  147;  Price  v.  Bala  &c.  R.  Co., 
50  L.  T.  R.  787;  Flood  v.  North 
Eastern  &c.  R.  Co.,  21  L.  T.  R.  258. 
As  the  first  and  highest  duty  of  a 
railroad  company  is  to  discharge 
its  duties  to  the  public  there  is,  at 
least,  fair  reason  for  the  conclu- 
sion that  such  contracts  must  yield 
to  the  public  necessity.  The  rapid 
progress  and  the  great  changes 
wrought  by  time  in  this  country 
must,  as  it  seems  to  us,  be  influen- 
tial considerations  in  cases  such  as 
are  here  under  immediate  mention, 
and  these  matters  must  be  regarded 
as  matters  of  which  parties  must 
take  notice  when  they  enter  into 
contracts.  A  statute  requiring  rail- 
road companies  to  stop  at  its  in- 
tersections or  crossings  of  other 
railroads  and  prescribing  a  penalty 
for  failure  to  do  so  has  also  been 
held  constitutional  in  State  v.  Chi- 
cago- &c.  R.  Co..  122  Iowa  22,  96 
X.  W.  904,  101  Am.  St.  254. 

•''*'  Galveston  &c.  R.  Co.  v.  La 
Gierse,  51  Tex.  189.  See  also  Lake 
Shore  &c.  R.  Co.  '  v.  State,  173 
U.  S.  285,  19  Sup.  Ct.  465,  43  L. 
ed.  702. 


14H 


CONTROL^   LOCATION   AND    CONSTRUCTION 


§782 


the  construction  of  farm  crossing's  may  be  compelled, ^^  but 
this  seems  to  us  a  great  stretch  of  the  police  power,  at  least 
as  to  cases  where  the  right  of  way  was  secured  prior  to  the 
enactment  of  the  statute ;  and  the  Illinois  statute  requiring  all 
regular  passenger  trains  to  stop  a  sufficient  time  at  all  railroad 
stations  and  county  seats  to  receive  and  discharge  passengers  has 
been  held  invalid  as  applied  to  a  fast  mail  train  engaged  in  inter- 
state commerce,  where  the  train  was  required  to  go  three  miles 
out  of  its  way  to  stop  at  a  station. '^°  In  Texas  it  is  correctly  held 
that,  where  the  right  of  way  was  obtained  prior  to  the  enactment 
of  the  statute,  there  is  no  power  to  compel  the  construction  of 
farm  crossings."^     The  speed  of  trains  through  towns  and  cities 


'^''  Illinois  Central  R.  Co.  v.  Wil- 
lonborg,  117  III.  203,  7  N.  E.  698, 
57  Am.  Rep.  862,  26  Am.  &  Eng. 
R.  Cas.  358, 

GO  Illinois  Cent.  R.  Co.  v.  State, 
163  U.  S.  142.  16  Sup.  Ct.  1096,  41 
L.  ed.  107. 

61  Gulf  &c.  R.  Co.  V.  Rowland, 
70  Te.x.  298.  35  Am.  &  Eng.  R. 
Cas.  286.  In  the  case  cited  the 
court  said:  "The  main  case  re- 
lied upon  by  the  appellee,  in  order 
to  sustain  the  constitutionality  of 
the  act  in  question,  is  Thorpe  v. 
Rutland  &c.  R.  Co.,  27  Vt.  140,  62 
Am.  Dec.  625.  That  case  main- 
tained the  validity  of  an  act  of  the 
legislature  requiring  railroad  com- 
panies to  put  in  cattle-guards  at 
farm  crossings.  It  seems  to  us 
tliat  requirements  for  fence  and 
cattle-guards  stand  upon  the  same 
principle.  They  are  necessary  for 
the  protection  of  such  domestic 
animals  as  are  likely  to  stray  upon 
the  track,  and  more  especially  for 
tlie  safety  of  passengers  and  em- 
ploj^es  of  the  railroad  companies. 
Farm  crossings  are  for  the  sole 
conveuience   of  the  owners  of  the 


land,  and  stand  upon  a  dififerent 
ground.  Besides  it  does  not  ap- 
pear in  that  case  that  the  owner 
of  the  farm  had  been  in  any  man- 
ner compensated  for  the  expense 
of  constructing  his  own  crossings 
or  cattle-guards.  That  decision, 
though  it  extends,  as  we  think,  the 
doctrine  of  the  police  power  to  its 
extreme  limits,  is  not  in  conflict 
with  the  views  expressed  in  this 
opinion.  We  tliink  it  would  have 
been  competent  for  the  legislature, 
in  providing  for  fences,  to  have 
required  the  companies  to  put  in 
farm  crossings,  as  a  regulation  of 
its  undoubted  power  to  require 
such  fences.  All  subsequent  rights 
of  way  would  be  presumed  to  have 
been  acquired  with  reference  to 
that  law,  and  the  land-owner 
would  not  have  been  presumed  to 
have  assumed  the  burden  of  their 
construction.  We,  therefore,  think 
that,  as  in  all  subsequent  acquisi- 
tion of  rights  of  way,  in  the  ab- 
sence of  some  express  or  implied 
agreement  to  the  contrary,  the 
railroad  companies  will  be  charged 
with  the  duty  imposed  by  the  stat- 


§782 


RAILROADS 


144 


may  1)e  reg-ulated.  The  authorities  are  agreed  that  where  the 
trains  move  upon  or  across  highways  their  speed  may  be  regu- 
hited,  but  there  is  a  contrariety  of  opinion  as  to  whether  the  sjjced 
of  trains  o])erating  exclusively  upon  the  private  property  of  the 
company  can  be  limited.'"-  Jt  is  competent  for  the  legislature  to 
require  railroad  companies  to  keep  tracks   clear  of  weeds   and 


ute,  and  the  measure  of  the  com- 
pensation will  be  regulated  ac- 
cordingly; therefore,  as  to  such 
future  cases,  in  our  opinion,  the 
statute  should  be  constitutional  in 
so  far  as  it  applies  to  crossings 
without  enclosures.  Smith  v.  New 
York  &c.  Railroad  Co.,  63  N.  Y. 
58."  The  opinion  from  which  we 
have  quoted  justly  discriminates 
between  matters  affecting  public 
interest  and  matters  of  private 
concern.  The  distinction  drawn  in 
the  opinion  referred  to  is  often 
lost  sight  of,  and  the  result  of  los- 
ing sight  of  it  is  confusion  and 
error.  An  exercise  of  the  police 
power  for  purely  private  benefit 
can  no  more  be  defended  than  can 
the  exercise  of  the  right  of  emi- 
nent domain  for  a  private  purpose. 
But  railroad  commissioners  may  be 
authorized  to  compel  the  removal 
of  a  dangerous  grade  crossing. 
New  York  &c.  R.  Co.  v.  Bristol. 
151  U.  S.  556,  14  Sup.  Ct.  437,  38 
L.  ed.  269.  See  also  Erie  R.  Co. 
V.  Board,  89  N.  J.  57,  98  Atl.  13. 
But  compare  Kansas  City  So.  R. 
Co.  V.  Kaw  Valley  Drainage  Dist., 
233  U.  S.  75,  34  Sup.  Ct.  564,  58  L. 
ed.  857,  where  the  particular  order 
was  held  unreasonable;  and  frogs 
and  switches  may  be  required  to 
be  blocked.  St.  Louis  &c.  R.  Co. 
V.  :\IcNamarc,  91    Ark.  515,   122  S. 


W.  102;  and  a  block  system  in- 
stalled. Indiana  R.  Com.  v.  Grand 
Trunk  &c.  R.  Co.,  179  Ind.  255.  100 
N.  E.  852. 

"2  Gratiot  v.  ^^lissouri  Pacific  R. 
Co..  116  Mo.  450,  21  S.  W..  1094. 
16  S.  W.  384;  Toledo  &c.  R.  Co. 
V.  Deacon,  63  111.  91;  Chicago  &c. 
R.  Co.  V.  Reidy,  66  111.  43;  Whit- 
son  V.  City  of  Franklin,  34  Ind. 
392;  Cleveland  &c.  R.  Co.  v.  Har- 
rington, 131  Ind.  426;  Crowley  v. 
Burlington  &c.  R.  Co.,  65  Iowa 
658;  ^lobile  &c.  R.  Co.  v.  State, 
51  Miss.  157;  Merz  v.  Missouri 
Par.  R.  Co.,  88  Mo.  672;  State  v. 
Jersey  City,  29  N.  J.  L.  170;  Clark 
V.  Boston  &c.  R.  Co..  64  N.  H. 
323.  31  Am.  &  Eng.  R.  Cas.  548; 
Penna.  R.  Co.  v.  Lewis,  79  Pa.  St. 
33:  Horn  v.  Chicago  &c.  R.  Co.,  38 
Wis.  463;  Haas  v.  Chicago  &c.  R. 
Co..  41  Wis.  44.  The  speed  of  in- 
terstate trains  may  be  reasonably 
regulated  and  signals  and  checking 
of  speed  required  at  crossings. 
Southern  R.  Co.  v.  King,  217  U.  S. 
524.  30  Sup.  Ct.  594,  54  L.  ed.  868; 
Lasater  v.  St.  Louis  &c.  R.  Co., 
177  Mo.  App.  534,  160  S.  W.  818. 
But  an  ordinance  requiring  speed 
ti)  l)e  limited  to  six  miles  an  hour 
in  a  small  town  where  tracks  are 
i'raded  and  at  a  different  level  from 
tlie  street  has  been  held  unreason- 
able.    Lusk  V.  Dora,  224  Fed.  650. 


145  CONTROL,   LOCATION   AND   CONSTRITCTION  §  782 

Other  combustible  material,**^  and  a  statute  so  providing,  and 
making  the  company  liable,  in  case  of  neglect  to  comply  with  it. 
for  resulting  damages,  and  reasonable  attorney's  fees,  has  been 
upheld.'"'  But  a  statute  providing  that  railroad  companies  fail- 
ing to  pay  claims  less  than  a  certain  sum  for  labor,  overcharges 
on  freight,  or  for  stock  killed,  within  thirty  days  after  presenta- 
tion, shall  be  liable  for  attorney's  fees,  has  been  held  void  as 
depriving  the  companies  of  the  equal  protection  of  the  law.*'"' 
Railroad  companies  may  also  be  compelled  to  keej)  flagmen  at 
crossings  where  the  public  safety  or  welfare  requires  the  presence 
of  tiagmen.*"^  So.  an  ordinance  prohibiting  whistling  by  locomo- 
tives, except  when  necessary  for  brake  signals  or  to  prevent  in- 
juries to  persons  or  property,  and  prohibiting  the  escape  of  steam 
from  cylinder  cocks  when  the  engine  is  running  in  the  street. 
has  been  upheld  as  a  valid  exercise  of  the  police  power  of  the 
city.*"'^ 

63  Diamond  v.  Northern  Pac.  R.  1020,  60  L.  R.  A.  525.  And  corn- 
Co.,  6  ^lont.  580,  13  Pac.  Z67 .  Sec  pare  Chicago  &c.  R.  Co.  v.  Illinois, 
upon  the  general  subject,  Sioux  200  U.  S.  561,  26  Sup.  Ct.  341,  50 
City  St.   R.  Co.  V.  Sioux  City,   138  L.  ed.  596. 

U.  S.  98.  11  Sup.  Ct.  226.  34  L.  ed.  64  Cleveland  &c.  R.  Co.  v.  Ham- 

898;  City  &c.  R.  Co.  v.  ^layor  &c.  ilton,  200  III.  633,  66  N.  E.  389.    See 

of  Savannah,  77  Ga.  731,  4  Am.  St.  also  Peoria  &c.  R.  Co.  v.  Duggan, 

106;    State  v.    Nelson,   52   Ohio   St.  109  111.  537,  50  Am.  Rep.  619;  Atch- 

88.  39   N.    E.  22.  26   L.   R.   A.   317,  ison   &c.   R.    Co.   v.    Matthews.    174 

10  Lewis"  Am.  &  Corp.  771;   Pratt  U.  S.  96,  19  Sup.  Ct.  609.  43  L.  ed. 

V.    Atlantic    &c.    R.    Co.,   42    Maine  909.     But  compare  Wilder  v.  Rail- 

579;    State    v.    Hoskins,    58    }^linn.  way   Co.,   70   :^Iich.   382,  38   N.   W. 

35,  59  N.  VV.  545,  25  L.  R.  A.  759;  289;  Joliffe  v.  Brown,  14  Wash.  155, 

Kent  V.  New  York  Central  R.  Co.,  44  Pac.  149,  53  Am.  St.  868. 

12  N.  Y.  628:  Tombs  v.  Rochester  e.^  Gulf   &c.    R.    Co.   v.    Ellis,    165 

&c.   R.    Co..    18   Barb.    (N.  Y.)    583;  U.  S.  150.  17  Sup.  Ct.  255.  41  L.  ed. 

American  Rapid  Tel.  Co.  v.  Hess,  666. 

125  N.  Y.  641,  26  N.  E.  919.  13  L.  R.  ''O  Toledo  &c.  R.  Co.  v.  Jackson- 

A.  454,  21  Am.  St.  764,  4  Lewis' Am.  ville,  67   111.   37.   16  Am.   Rep.  611: 

R.    &    Corp.    199:    Branch    v.   Wil-  Lake   Shore   &c.   R.   Co.  v.   Cincin- 

mington,  77  N.  Car.  347;  Nelson  v.  nati   &c.    R.   Co.,  30   Ohio   St.   604; 

Vermont    &c.    R.    Co.,   26   Vt.   717;  Erie  v.  Erie  Canal  Co.,  59  Pa.  St. 

Ditberner   a-.    Chicago    &c.    R.    Co.,  174. 

47  Wis.  138,  2  N.  W.  69.     See  also  e-  Chicago    &c.    R.    Co.   v.    Stcck- 

as  to  drainage,  Chicago  &c.  R.  Co.  man.  224  111.  500,  79  N.  E.  602. 
V.  Keith,  67  Ohio  St.  279,  65  N.  E. 


^  783 


liAILKOAOS' 


146 


§  783.  Regulations  as  to  equipment  held  valid. — Many  and 
various  statutory  reg^ulations  as  to  equii)nicnt  have  been  held 
valid.  Thus  there  are  cases  affirming  that  railroad  companies 
may  be  C(Mn])clle(l  to  heat  their  cars  in  some  other  mode  tlian  1)v 
stoves."*  to  tise  headlii^hts  of  a  certain  character  on  their  locomo- 
tives :"''■'  and  to  equip  their  locomotives  with  automatic  bells  or 
bell  ringers,""  and  their  cars  with  g^rabirons.'^ 

§  784.  Regulations  as  to  lighting  tracks  held  valid. —  It  is  held 
by  the  Supreme  Court  of  Ohio  that  railroad  conq^anies  may  l)e 
compelled  to  light  their  tracks  situated  within  the  limits  of  in- 
corporated villages  and  cities,'-  and  if  this  decision  is  to  be  un- 
derstood as  holding  that  companies  may  be  compelled  to  light 
crossings  and  places  to  which  the  public  have  a  right  of  access 
we  think  it  is  correct,  but  if  it  is  to  be  understood  as  holding  that 
railroad  conq^anies  may  be  compelled  to  maintain  lights  at  places 
where  the  members  of  the  community  have  no  right  to  go,  that 
is,  places  owned  by  the  companies,  and  to  which  they  have  an 
exclusive  right,  we  cannot  regard  the  decision  as  sound,  for, 
while  we  believe  that  the  legislature  has  power  to  provide  for  the 
safety  and  welfare  of  the  public,  we  do  not  believe  that  the  power 


68  People  V.  New  York  &c.  R. 
Co.,  55  Hun  409,  8  N.  Y.  S.  672; 
People  V.  Clark,  14  N.  Y.  S.  642. 
See  also  New  York  &c.  R.  Co.  v. 
New  York,  165  U.  S.  628,  17  Sup. 
Ct.  418,  41  L.  ed.  853.  It  has  also 
been  held  that  a  railroad  company 
may  be  required  to  light  and  heat 
its  station  buildings.  Texas  &c.  R. 
Co.  V.  Mayes  (Tex.),  15  S.  W.  43. 

69  Atlantic  Coast  Line  R.  Co.  v. 
State,  135  Ga.  545,  69  S.  E.  725,  32 
L.  R.  A.  (N.  S.)  20,  affirmed  in  234 
U.  S.  285,  34  Sup.  Ct.  829,  43  L.  ed. 
702. 

^"  State  V.  Louisville  &c.  R.  Co., 
177  Tnd.  553,  96  N.  E.  340.  And  to 
use  an  automatic  block  system. 
Railroad  Com.  v.  Grand  Trunk  R. 
Co.,  179  Tnd.  255,  100  N.  E.  852. 


'1  Southern  R.  Co.  v.  Railroad 
Com.,  179  Ind.  23,  100  N.  E.  337. 
See  also  Pittsburgh  &c.  R.  Co.  v. 
State,  180  Ind.  245,  102  N.  E.  25. 

'<-  Cincinnati  &c.  R.  Co.  v.  Sulli- 
van, 32  Ohio  St.  152.  In  tlic  case 
cited  the  court  held  that  under  the 
police  power  railroad  companies 
may  be  compelled  to  light  their 
tracks  situated  within  the  limits  of 
incorporated  villages  and  cities,  and 
that  in  the  event  of  the  failure  of 
a  company  to  provide  lights  the 
municipality  might  do  so  at  the 
expense  of  the  company,  but  that 
the  expense  could  not  be  regarded 
as  an  assessment  or  a  tax,  but  must 
be  enforced  bj'  an  action  against 
tlie  company.  I'.ut  compare  Wash- 
ington Terminal  Co.  v.  Dist.  of 
Columbia,  265   Fed.  965. 


147  CONTROL,    LOCATION    AND    CONSTHTX'TION  §785 

extends  to  the  control  of  private  property,  where  no  rights  of  the 
public  are  involved,  although  it  is  owned  by  a  railroad  company, 
nor  do  we  believe  that  the  legislature  has  arbitrary  power  to  pre- 
scribe the  particular  or  specific  kind  of  light  that  shall  be  used/^ 

§  785  (669).  The  power  to  impose  penalties  in  favor  of  private 
persons — Constitutional  questions. — There  is  some  conflict  of  au- 
thoritv  upon  the  (juestion  of  the  power  of  the  legislature  to  im- 
pose penalties,  in  the  form  of  double  damages  and  the  like,  upon 
railroad  companies,  for  the  benefit  of  persons  who  have  a  cause  of 
action  against  such  companies.  Many  statutes  give  individuals 
a  right  to  double  damages  and  the  like  against  railroad  com- 
panies, and  in  so  doing  enact  a  law  that  can  only  apply  to  a  single 
class  and  a  particular  kind  of  actions,  namely,  civil  actions 
against  railroad  companies.  It  seems  to  us  that  many  of  the 
courts,  in  sustaining  such  statutes,  have  disregarded  the  con- 
stitutional provisions  prohibiting  special  and  local  legislation. 
Where  there  are  no  constitutional  provisions  inhibiting  the  enact- 
ment of  local  and  special  laws  there  is  less  difficulty  in  sustaining 
such  statutes,  but  where  there  are  such  prohibitions  it  seems  to 
us  that  statutes  making  special  rules  for  the  government  of  rail- 
road companies  cannot  be  upheld  except  where  the  subject  of  the 
statute  is  peculiar  to  railroad  companies.  It  has  been  held  by  the 
Supreme  Court  of  the  United  States  that  a  statute  which  gives  a 
landowner  a  right  of  action  against  railroad  companies  which  fail 
to  fence  their  roads,  for  consequential  damages,  does  not  conflict 
with  the  provisions  of  the   federal  constitution,   though   conse- 

■^3  To  hold  that  the  legislature  ture  may  not  provide  that  a  gen- 
may  arbitrarily  and  conclusively  eral  kind  of  light  may  be  used,  as, 
determine  exactly  what  kind  of  a  for  instance,  electric  lights  or  gas 
light  should  be  used  would  be  to  lights,  but  what  we  mean  is  that 
confer  upon  it  the  absolute  power  the  legislature  can  not  arbitrarily 
to  choose  between  diflfercnt  kinds  require  the  use  of  a  lamp  or  lamps 
of  light,  and  make  it  the  absolute  of  a  particular  pattern  or  descrip- 
arbiter  of  all  questions  of  fact,  such  tion,  regardless  of  circumstances, 
as  the  sufficiency  of  the  light,  its  This  general  subject,  however,  is 
suitableness  for  the  purpose  and  considered  elsewhere.  See  also  note 
like  questions,  thus  denying  a  hear-  to  Chicago  v.  Penna.  Co.  (252  111. 
ing  upon  such  questions.  We  do  185,  96  N.  E.  833),  in  .Ann.  Cas. 
not   mean  to   say  that  the   legisla-  1912D,  400,  407. 


§785 


RAILROADS 


148 


quential  damages  are  not  recoverable  under  the  laws  of  the  state 
against  any  other  persons  or  corporations  except  railway  com- 
panies."* The  weight  of  authority  is  that  legislation  directed 
against  railroad  companies,  and  not  against  any  other  corpora- 


"••  Minneapolis  &c.  R.  Co.  v.  Em- 
mons. 149  U.-  S.  364.  1.3  Sup.  Ct. 
870.  2,1  L.  cd.  769.  In  the  course 
of  the  opinion  the  court  answering 
the  contention  of  counsel  that  the 
statute  denied  to  railroad  compa- 
nies the  equal  protection  of  the 
laws,  said:  "The  answer  to  this  is 
that  there  is  no  inhibition  upon  a 
state  to  impose  such  penalties  for 
disregard  of  its  police  regulations 
as  will  insure  prompt  obedience  to 
their  requirements.  For  what  in- 
juries the  party  violating  their  re- 
quirements shall  be  liable,  whether 
immediate  or  remote,  is  a  matter 
of  legislative  discretion.  The  oper- 
ating of  railroads  without  fences 
and  cattle-guards  undoubtedly  in- 
creases the  danger  which  attends 
the  operation  of  all  railroads.  It 
is  only  by  such  fences  and  guards 
that  the  straying  of  cattle  running 
at  large  upon  tracks  can  be  pre- 
vented, and  security  had  against 
accidents  from  that  source;  and 
the  extent  of  the  penalties  which 
should  be  imposed  by  the  state  for 
any  disregard  of  its  legislation  in 
that  respect  is  a  matter  entirely 
within  its  control.  It  was  not  es- 
sential that  the  penalty  should  be 
confined  to  damages  for  the  actual 
loss  to  the  owner  of  cattle  injured 
by  the  want  of  fences  and  guards. 
It  was  entirely  competent  for  the 
legislature  to  subject  the  company 
to  any  incidental  or  consequential 
damages,  such  as  loss  of  rent,  the 
expenses  of  keeping  watch  to  guard 


cattle  from  straying  upon  the 
tracks,  or  anj-  other  expenditure  to 
which  the  adjoining  owner  was 
subjected  in  consequence  of  failure 
of  the  company  to  construct  the 
required  fences  and  cattle  guards. 
No  discrimination  is  made  against 
any  particular  railroad  companies 
or  corporations.  .\11  are  treated 
alike  and  required  to  perform  the 
same  duty:  and,  therefore,  no  in- 
vasion was  attempted  of  the  equal- 
ity of  protection  ordained  by  the 
fourteenth  amendment."  A  state 
may  require  a  railroad  to  furnish 
cars  within  a  reasonable  stipulat- 
ed time  for  intrastate  commerce 
not  burdening  interstate  commerce. 
Hampton  v.  St.  Louis  &c.  R.  Co., 
227  U.  S.  456,  2i  Sup.  Ct.  263,  57 
L.  cd.  596;  Oliver  v.  Chicago  &c. 
R.  Co.,  89  Ark.  466,  117  S.  W.  238. 
But  not,  ordinarily,  for  not  fur- 
nishing cars  to  a  shipper  of  inter- 
state freight.  St.  Louis  &c.  R.  Co. 
V.  Arkansas,  217  U.  S.  136,  54  L. 
ed.  698,  29  L.  R.  A.  (N.  S.)  802; 
Chicago  &c.  R.  Co.  v.  Hardwick 
T^'armers'  Elevator  Co.,  226  U.  S. 
426,  ZZ  Sup.  Ct.  174,  57  L.  ed.  284, 
46  L.  R.  A.  (N.  S.)  203.  And  since 
the  Carmack  amendment  a  state 
cannot  impose  a  penalty  for  failure 
to  pay  a  claim  in  time  where  the 
shipment  is  interstate.  Charleston 
&c.  R.  Co.  V.  Varnville  Furniture 
Co.,  237  U.  S.  597,  35  Sup.  Ct.  715, 
59  L.  cd.  1137,  Ann.  Cas.  1916D, 
7\'S'S,  and  note.  But  statutes  giving 
the   consignee   the   right   to  collect 


149  CONTROL,   LOCATION    AND   CONSTRUCTION  §  785 

tions  or  persons,  is  not  local  or  special,  but  on  this  point  there  is 
conflict  of  authority.'"'  The  reasoning  of  many  of  the  cases  is,  we 
venture  to  say,  not  entirely  satisfactory.  It  may  be  true  that,  as 
to  matters  peculiar  to  railroad  companies  which  are  not  char- 
acteristics of  any  other  corporation,  a  law  applying  to  such  com- 
panies exclusively  is  not  special,  but  surely  this  is  not  true  where 
the  matter  is  a  general  one  not  peculiar  to  railroad  companies. 
That  some  of  the  cases  go  too  far  is,  as  we  believe,  unquestion- 
ably true,  but  it  must  be  said  that  it  is  not  easy  to  draw  a  line 
between  general  and  special  statutes.  So  far  as  concerns  the 
public  duties  of  railroad  companies  there  can,  of  course,  be  no 
reasonable  controversy,  for  it  is  clear  that  as  to  such  matters  the 
legislature  has  power  to  enforce  police  regulations  by  imposing 
penalties  for  violations  of  law,  but  where  the  right  exercised  by 
railroad  companies  is  a  private  right,  and  in  its  general  character 
the  same  as  that  exercised  by  corporations  generally,  there  is-, 
very  great,  if  not  insurmountable,  difficulty  in  sustaining  statutes-, 
which  apply  exclusively  to  railroad  companies. 

3  11  attorney's  fee  on  a  claim  for  St.  Louis  &c.  R.  Co.,  103  Mo.  52, 
lost  or  damaged  freight  have  been  IS  S.  W.  320,  11  L.  R.  A.  426;  Illi- 
upheld.  Missouri  &c.  R.  Co.  v.  nois  Central  R.  Co.  v.  Crider,  91 
Harris,  234  U.  S.  412,  34  Sup.  Ct.  Tenn.  489,  19  S.  W.  618,  56  Am.  & 
790,  58  L.  ed.  1377,  L.  R.  A.  1915E,  Eng.  R.  Cas.  157;  Gulf  &c.  R.  Co. 
542.  V.  Ellis,  87  Tex.  19,  26  S.  W.  985, 
75  Affirming  the  validity  of  such  61  Am.  &  Eng.  R.  Cas.  357.  Deny- 
statutes,  Missouri  Pac.  R.  Co.  v.  ing  the  validity  of  such  statutes, 
Humes,  115  U.  S.  512,  6  Sup.  Ct.  Zeigler  v.  South  &c.  R.  Co.,  58 
110,  29  L.  ed.  463;  Dow  v.  Beidel-  Ala.  594;  South  &c.  R.  Co.  v.  Mer- 
man, 49  Ark.  455,  5  S.  W.  297,  31  ris,  65  Ala.  193;  Smith  v.  Louis- 
Am.  &  Eng.  R.  Cas.  14;  Jackson-  ville  &c.  R.  Co.,  75  Ala.  449;  St. 
ville  &c.  R.  Co.  V.  Prior,  34  Fla.  Louis  &c.  R.  Co.  v.  Williams,  49 
271,  15  So.  760;  Peoria  &c.  R.  Co.  Ark.  492;  Missouri  &c.  R.  Co.  v. 
V.  Duggan,  109  111.  537,  50  Am.  State,  92  Ark.  1,  121  S.  W.  930.  31 
Rep.  619,  20  Am.  &  Eng.  R.  Cas.  L.  R.  A.  (N.  S.)  861,  and  other 
489;  Burlington  &c.  R.  Co.  v.  Dey,  cases  there  cited  in  note;  ]Madison 
82  Iowa  312,  48  N.  W.  98,  112  L.  &c.  R.  Co.  v.  Whiteneck,  8  Ind. 
R.  A.  436,  31  Am.  St.  477,  45  Am.  217;  Indiana  &c.  R.  Co.  v.  Gapen. 
&  Eng.  R.  Cas.  391;  Kansas  Pac.  10  Ind.  292;  Wilder  v.  Chicago  &». 
R.  Co.  V.  Mower,  16  Kans.  573;  R.  Co.,  70  Mich.  382,  38  N.  W.  289; 
Wortman  v.  Kleinschmidt,  12  Schut  v.  Chicago  &c.  R.  Co.,  70 
Mont.  316,  30  Pac.  280;  Perkins  v.  Mich.  433,  38  N.  W.  291;   Chicago 


§  786  RAILROADS  150 

§786  (670).  Regulating  speed  of  trains. — There  is  no  doubt 
that  the  legislature  has  power  to  make  reasonable  regulations  as 
to  the  speed  at  which  railroad  trains  shall  run,  and  that  it  may 
confer  power  upon  the  municipalities  of  the  state  to  make  and 
enforce  such  regulations.  We  think  that  municipal  ordinances 
may  be  so  unreasonable  as  to  authorize  the  courts  to  adjudge 
them  ineffective.'^  Upon  the  same  principle  on  which  schedules 
of  rates  fixed  by  railroad  commissioners  are  held  unreasonable 
and  ineffective,  ordinances  of  municipal  corporations  may  be  ad- 
judged invalid  if  their  effect  is  clearly  and  surely  to  practically 
disable  a  railroad  company  from  properly  discharging  its  public 
duties.  But  many  ordinances  prescribing  a  very  low  rate  of 
speed  have  been  upheld. '^^ 

§  787  (670a).  Stopping  trains  at  highway  crossings. — Statutes 
and  municipal  ordinances  have  been  enacted  in  some  jurisdictions 
requiring  railroad  trains  to  be  brought  to  a  full  stop  on  approach- 
ing highway  crossings.  Of  such  enactments  it  has  been  said  by 
one  author :  "It  is  believed  that  these  statutes  and  ordinance's 
cannot  be  upheld  as  valid  police  regulations  unless  in  cases  of 
crossings  where  the  danger  is  exceptional.  Railway  trains  could 
not  be  run  at  any  considerable  rate  of  speed  if  they  were  obliged 
to  come  to  a  full  stop  at  every  highway  grade  crossing.  Such  a 
statutory  requirement,  unless  embodied  in  the  charter  of  the 
company  or  in  an  a])plicatory  statute  existing  at  the  time  of  its 
creation,  would  plainly  have  the  effect  of  impairing  the  obligation 
of  the  contract  created  between  the  corporation  and  the  state  by 

&c.  R.  Co.  V.  Moss,  60  i\Iiss.  641;  '^s  EvJson  v.  Chicago  &c.  R.  Co., 

State  V.  Divine,  98  N.  Car.  778,  4  45  Minn.  370,  48  N.  W.  6,  11  L.  R. 

S.  E.  477.     See  generally  Calder  v.  A.  434;   Meyers  v.  Chicago  &c.   R.' 

Bull,  3  Dall.  (U.  S.)  386,  388,  1  1..  Co.,  57  Iowa  555,  10  N.  W.  896,  42 

ed.  648;  Gordon  v.  Winchester,  12  Am.  Rep.  50,  7  Am.  &  Eng.  R.  Cas. 

Bush.  (Ky.)  110,  23  Am.  Rep.  713;  406;   Burg  v.   Chicago  &c.   R.   Co., 

Van     Zant    v.     Waddel,     2     Yerg.  90  Iowa  106,  57  N.  W.  680,  48  Am. 

(Tenn.)  260;  Wally's  Heirs  v.  Ken-  St.  419,  60  Am.  &  Eng.  R.  Cas.  159. 
nedy.  2  Yerg.  (Tenn.)  554,  24  Am.  77  See  ante  §  701,  last  note;  post 

Dec.  511;  Janes  v.  Reynolds,  2  Tex.  §    1431.     See   also   generally   as   to 

250;    Bull   V.    Conroe,   13   Wis.   233,  power  of  municipality  to  pass  such 

244;  Durkee  v.  Janesville,  28  Wis.  ordinances    implied    from    general 

464,  9  .\in.  Rep.  500.  provisions.     Cincinnati  &c.  Ry.  Co. 


151  COXTKOb,    LOCATION   AND   CONSTKUCTION  §  788 

the  grant  of  its  franchises  by  the  state  and  their  acceptance  bv 
the  corporators.  It  would  be  destructive  of  its  lousiness,  and,  as 
^business  is  pro])ert}-,  it  would  hence  operate  to  deprive  it  of  its 
property  without  due  i)rocess  of  law.  As  applied  to  interstate 
rains,  it  would  constitute  such  an  embargo  upon  interstate  com- 
merce as  the  commerce  clause  of  the  Constitution  of  the  United 
States,  according  to  its  interpretation  by  the  Supreme  Court  of 
the  United  vStates,  has  placed  outside  the  power  of  the  states. 
Aside  from  this,  it  would  be  an  intolerable  burden  upon  the 
public  entitled  to  the  l)enefit  of  rapid  transit.  Such  provisions 
are  more  apt  to  be  found  in  local  municipal  ordinances,  whose 
authorities,  in  enacting  them,  look  primarily  to  the  protection  of 
the  inhabitants  of  the  particular  municipalit}-  than  in  general 
statutes  enacted  by  legislatures  which  may  be  supposed  to  have 
some  regard  to  the  general  public  interest."'^  In  one  case  an 
ordinance  requiring  railroad  companies  crossing  specified  streets 
of  the  city  to  first  come  to  a  full  stop  was  held  to  operate  unrea- 
sonably against  a-  particular  company,  where  its  road  w^as  the 
only  one  crossing  these  streets,  and  there  were  other  streets  more 
frequented  by  travelers  which  were  crossed  by  the  roads  of  other 
companies,  and  no  similar  restriction  w'as  placed  on  such  roads. '^^ 
r>ut  statutes  requiring  speed  to  be  checked  on  approaching  a 
crossing  have  been  upheld.®'* 

§788   (670b).     Fencing  tracks. — The  cases  show  that  railroad 
companies  have  frequently  sought  to  avoid  the  additional  burden 

V.     Commonwealth,     126    K3^     712,  crossing  or  intersection  of  another 

104  S.  W.  771,  17  L.  R.  A.  (N.  S.)  road,  State  v.  Chicago  &c.  R.  Co.. 

561,  and  cases  there  cited  in  note.  122    Iowa    22,    96    N.    W.    904,    101 

And   see    as   to   private    action   for  Am.  St.  254. 

violation    of    statute    or    ordinance  "^  Buffalo    v.    New    York    Sec.    R. 

as    to    speed,    Leathers    v.    Black-  Co.,    152   X.   Y.  276,   46   N.   E.  496. 

well's  &c.  Co.,  144  N.  Car.  330,  57  Sec  also  Staal  v.  Grand  Rapids  &c. 

S.   E.   11,  9   L.   R.  A.    (N.   S.)   349,  R.  Co.,  57  ^lich.  239,  23  N.  W.  795. 

and  cases  there  cited  in  note;   Slu-  -^"^  Seaboard   Air   Line   Rj'.   Co.  v. 

del-   v.    St.    Louis    Transit   Co..    189  Blackwell,    143    Ga.    237,    84    S.    E. 

.Mo.  107,  88  S.  W.  648,  5  L.  R.  A.  473,  Ann.  Cas.  1917A,  967.  and  note. 

(N.   S.)    186   and  cases   there   cited  Compare  Southern  Ry.  Co.  v.  King, 

in  note.  217  U.   S.   524,  30  Sup.   Ct.   594,   54 

"8  2     Thomp.     Neg.      (2nd     ed.)  L.  cd.  868. 
§  1899.     But  see  as  to  stopping  at 


§  788  RAILROADS  152 

imposed  upon  thcni  by  statutes  coiiii^elling-  them  to  fence  tlieir 
tracks,  on  the  ground  that  their  charters  were  contracts,  the  ob- 
ligation of  which  the  state  legislature  had  no  power  to  impair, 
unless  the  right  to  alter  and  amend  was  reserved.  The  courts 
ha\e  universally  decided  against  this  theory.  .Vs  these  statutes 
are  in  the  nature  of  police  regidations  designed  for  the  protection 
of  the  lives  and  prt)perty  of  the  traveling  public,  there  is  no  rea- 
son why  an  artilicial  ])erson  should  not  be  subject  to  such  an 
exercise  of  the  police  power  of  the  sovereignty  as  well  as  natural 
persons. ^^  Thus  it  was  held  in  New  York  that  a  statute  requir- 
ing railroad  com])anies  to  construct  and  maintain  fences  with 
necessary  and  suitable  gates  at  farm  crossings  was  not  incon- 
sistent with  the  prior  enactments  of  the  charter  of  a  company 
requiring  it  to  fence  its  road,  and  ])ermitting  the  adjoining  land- 
owner to  erect  gates  at  proper  and  convenient  places,  etc.,  and 
]:)roviding  that  they  should  "be  kept  in  repair  by  the  persons 
using  the  same ;"  and  that,  notwithstanding  such  charter,  the 
comj)any   was   liable   for   injuries   consequent   upon    a   defective 

^1  Missouri   &c.    R.    Co.   v.    State,  App.  196,  78  N.  E.  207  (citing  text 

92  Ark.  1,  121  S.  W.  930,  31  L.  R.  and  3  Elliott  R.  R.  §§  1219,  1220); 

A.   ex.  S.)   861,  and  other  authori-  Kansas    &c.    R.    Co.   v.    Mower,    16 

ties  there  cited  in  note;  Minneapo-  Kans.  573;  Gilmore  v.  European  R. 

lis  &c.  R.  Co.  V.  Emmons,  149  U.  S.  Co.,  60  IMaine  237;  Wilder  v.  Maine 

364,  13  Sup.  Ct.  870.  37  L.  ed.  769;  &c.  R.  Co.,  65  Maine  333;  Whittier 

Bernardi  v.   Northern   Pac.  R.   Co.,  v.    Chicago    &c.    R.    Co.,   24    Minn. 

18   Idaho  76,  27   L.    R.  A.    (N.   S.)  394;    Gillam    v.    Sioux    City    &c.    R. 

796,  108  Pac.  542;  Ohio  &c.  v.  Mc-  Co.,  26  Minn.  268;  Gorman  v.  Pa- 

Clclland,  25  111.  140;  Galena  &c.  R.  cific  &c.  R.  Co.,  26  Mo.  441,  72  Am. 

Co.  V.  Crawford,  25  111.  529;  Cairo  Dec.  220;  Clark  v.  Hannibal  &c.  R. 

&c.    R.    Co.   V.    Peoples,   92    111.   97.  Co.,  36  Mo.  203;    Rhodes  v.   Utica 

34  Am.  Rep.  112;  Cairo  &c.  R.  Co.  &c.    R.    Co.,    5    Hun    (N.    Y.)    344: 

V.  Warrington,  92  III.  157;    Indian-  Suydam  v.  Moore,  8  Barb.  (N.  Y.) 

apolis  &c.  R.  Co.  v.  Townsend,  10  358;  Waldron  v.  Rensselaer  &c.  R. 

Tnd.   38;    Jeffersonville    &c.    R.    Co.  Co.,  8  Barb.  (N.  Y.)  390;  Staats  v. 

V.  Applegate.  10  Ind.  49;  New  Al-  Hudson  River  R.  Co.,  4  Abb.  App. 

bany  &c.  R.  Co.  v.  Tilton,  12  Ind.  Dec.    (N.   Y.)   287;   Nelson  v.  Ver- 

3,   74   Am.   Dec.    195;    New   Albany  mont    &c.    R.    Co.,    26   Vt.    717,    62 

&c.  R.   Co.  V.  Maiden,   12  Ind.   10;  Am.   Dec.  614;  Thorpe  v.    Rutland 

Indianapolis  &c.  R.  Co.  v.  McKin-  &c.  R.   Co.,  27  Vt.   141;   McCall  v. 

ney,  24  Ind.  283;   Indianapolis  &c.  Chamberlain.  13  Wis.  640;  Blair  v. 

R.  Co.  V.  Parker,  29  Ind.  471;  Chi-  Milwaukee  &c.  R.  Co.,  20  Wis.  254. 
cago  &c.  Ry.  Co.  v.  Irons,  38  Ind. 


153 


COX'l'l^-OL,    I.OC'ATION    AND    CONSTRUCTION 


§789 


maintenance  of  the  gates.®-  Courts  generally  construe  these 
statutes  to  apply  to  corporations  existing  prior  to  their  passage 
and  as  not  objectionable  as  retrospective  legislation  affecting 
vested  rights.  In  Massachusetts  a  statute  clearly  prospective  in 
its  terms  has  been  held  to  apply  only  to  roads  thereafter  to  be 
constructed,  and  not  to  a  road  which  had  been  located  and 
partially  graded  before  the  passage  of  the  act.®^ 

§789  (671).  Grade  crossings. — 'riie  legislature  of  a  state,  in 
the  exercise  of  the  police  pcnver,  may  compel  a  railroad  company 
to  change  a  grade  crossing.*'*  It  has  been  adjudged  that  a  crossing 


52  Staats  V.  Hudson  River  R.  Co., 
4  Abb.  App.  Dec.  (N.  Y.)  287. 

53  Sterns  v.  Old  Colony  &c.  R. 
Co.,  1  Allen  (Mass.)  493;  Baxter 
V.  Boston  &c.  R.  Co.,  102  Mass. 
3S3. 

84  New  York  &c.  R.  Co.  v.  Bris- 
tol, 151  U.  S.  556,  14  Sup.  Ct.  437, 
38  L.  ed.  269,  citing  Woodrufif  v. 
Catlin,  54  Conn.  277,  6  Atl.  849; 
Westbrook's  Appeal,  57  Conn.  95, 
17  Atl.  368;  Woodruff  v.  New  York 
&c.  R.  Co.,  59  Conn.  63,  20  Atl.  17; 
Doolittle  V.  Selectmen,  59  Conn. 
402,  22  Atl.  336;  New  Y^ork  &c.  R. 
Co.  V.  Waterbury,  60  Conn.  1,  22 
Atl.  439;  Middletown  v.  New  York 
&c.  R.  Co.,  62  Conn.  492,  27  Atl. 
119.  In  the  first  of  the  cases  cited 
the  court  said:  "It  is  likewise  thor- 
oughly established  in  this  court 
that  the  inhibitions  of  the  consti- 
tution of  the  United  States  upon 
the  impairment  of  the  obligation  of 
contracts,  or  the  deprivation  of 
property  without  due  process  of 
law,  or  of  the  equal  protection  of 
the  laws,  by  the  states,  are  not 
violated  by  the  legitimate  exercise 
of  legislative  power  in  securing  the 
public    safety,    health    and    morals. 


The  governmental  power  of  self- 
protection  can  not  be  contracted 
away,  nor  can  the  e.Kercise  of  rights 
granted,  nor  the  use  of  property  be 
withdrawn  from  the  implied  gov- 
ernmental regulation  in  particulars 
essential  to  the  preservation  of  the 
community  from  injury.  Beer  Co. 
V.  Massachusetts,  97  U.  S.  25,  24 
L.  ed.  989:  Fertilizing  Co.  v.  Hyde 
Park,  97  U.  S.  659,  24  L.  ed.  1036; 
Barbier  v.  Connolly,  113  U.  S.  27, 
5  Sup.  Ct.  357,  28  L.  ed.  923;  New 
Orleans  Gas  Co.  v.  Louisiana  Light 
Co.,  115  U.  S.  650,  6  Sup.  Ct.  252, 
29  L.  ed.  516;  Budd  v.  New  York, 
143  U.  S.  517,  12  Sup.  Ct.  468,  36 
L.  ed.  247."  See  also  upon  the 
subject  of  the  power  to  compel 
change  of  crossings,'  Wabash  R. 
Co.  V.  Defiance,  167  U.  S.  88,  17 
Sup.  Ct.  748,  42  L.  ed.  87;  Chicago 
&c.  R.  Co.  V.  Nebraska,  170  U.  S. 
57,  18  Sup.  Ct.  513,  42  L.  ed.  948; 
Boston  &c.  Co.  V.  County  Com- 
missioners, 79  Maine  386,  10  Atl. 
113;  Commonwealth  v.  Eastern  R. 
Co.,  103  Mass.  254,  4  Am.  Rep.  555; 
Alayor  &c.  of  Worcester  v.  Nor- 
wich   &c.    R.    Co.,    109    ]\Iass.    103; 


§   /DO  RAILROADS  154 

at  grade  may  l)e  deemed  a  nuisance,  and  as  such  be  subject  to 
change  or  remoN'al/'*''  The  cases  to  which  we  refer  hiy  down  the 
doctrine  in  very  l)road  terms,  but  we  suppose  that,  as  it  was  not 
necessary  in  those  cases  to  determine  what  limitations  there  are 
upon  the  power,  these  cases  cannot  be  regarded  as  adjudging  that 
the  legislative  judgment  is  conclusive  in  all  cases,  and  entireh' 
])recludes  the  courts  from  deciding  upon  the  validity  of  the 
statutc^ry  requirement. 

§  790  (671a).  Grade  crossings,  continued. — It  might  seem,  at 
first  blush,  that  a  statute  requiring  a  railroad  company  to  erect 
and  maintain,  at  its  own  expense,  a  crossing,  whenever  a  new 
highway  shall  be  established  across  its  tracks,  would  lay  a 
burden  ui)on  the  franchises  conferred  upon  it  for  the  j^ublic 
benefit  without  compensation,  and  hence  impair  the  obligation  of 
the  contract  created  by  the  grant  of  its  charter  and  its  acceptance, 
and  deprive  it  of  its  ])roperty  without  due  process  of  the  law.  In 
conformity  with  this  view,  decisions  are  encountered  to  the  eflect 
that  such  statutes  are  not  to  be  construed  as  applying  to  existing 
lines  of  road  unless  their  language  renders  such  a  construction 
unavoidable;*"  and  there  are  decisions  to  the  efifqct  that,  where  a 
highway  is  laid  out  so  as  to  cross  a  railway  already  built,  the 
railway  company  is  entitled  to  damages  for  the  taking  of  so  much 
of  its  land,  consisting  of  its  right  of  way,  for  that  public  purpose, 
just  as  any  other  landlord  would,  under  like  circumstances,  be 
entitled  to  damages.^"  But  in  Massachusetts  and  some  other 
states  a  railroad  company  is  not  entitled  to  damages  for  the  cost 
of  operating  the  gates  rendered  necessary  by  a  new  crossing.*® 

Northampton,  In  re,  158  Mass.  299,  Co.,  39  Minn.  219,  39  N.  W.  153; 
33  N.  E.  568,  55  Am.  &  Eng.  R.  Tyler  v.  St.  Joseph  &c.  R.  Co.,  43 
Cas.  31;  Roxbury  v.  Boston  &c.  R.  Ivans.  543,  23  Pac.  585.  See  also 
Co.,  6  Cush.  (Mass.)  424;  State  v.  Perry  Co.  v.  Fink,  65  Ark.  492,  47 
Wabash  &c.  R.  Co.,  83  Mo.  144,  S.  W.  301.  But  see  post  §  1570. 
25  Am.  &  Eng.  R.  Cas.  133;  Erie  "Chicago  &c.  R.  Co.  v.  Chau- 
X.  Co.  V.  Board  of  Fire  Comrs.,  tauqua  Co.,  49  Kans.  763,  31  Pac. 
89  N.  J.  L.  57,  98  At).  13.  736;  Boston  &c.  R.  Co.  v.  Cani- 
^■'  New  York  &c.  R.  Co.'s  Ap-  bridge,  159  Mass.  283,  34  N.  E.  382. 
peal.  58  Conn.  532,  20  Atl.  670.  ss  Boston  &c.  R.  Co.  v.  Cam- 
s''State    V.     Minneapolis     &c.     R.  bridge,  159  Mass.  283,  34  N.  E.  382. 


155 


CONTROL,   LOCATION    AND    CONSTRUCTION 


§791 


Opposed  to  the  (l(K"trine  first  stated  is  a  class  of  decisions  holdin^j: 
that  the  legislature  may  provide  that  an  existing-  railroad  com- 
pany shall  maintain  so  much  of  a  highway,  crossing  its  track  at 
grade,  as  comes  within  its  limits;"''  or  that  existing  railroad  com- 
panies shall  construct  and  keep  in  repair  suitable  highway  cross- 
ings ;  and  this  is  not  deemed  unconstitutional  as  imposing  a 
burden  on  the  railway  company  that  did  not  exist  at  its  incor- 
poration.■'°  Under  statutes  requiring  railroad  companies  to  con- 
struct and  keep  in  repair  suitable  highway  crossings,  it  has  been 
held  the  duty  of  the  company  to  make  such  crossings  with  ap- 
proaches, notwithstanding  the  highway  was  laid  out  after  the 
railroad  was  built. ''^ 

§  791    (672),     Requiring  services  and  denying  compensation. — 

It  is  quite  clear  that  the  legislature  cannot  compel  a  railroad  com- 
pany to  render  services  without  compensation.  This  is  decided 
in  the  Railroad  Commission  cases  and  other  cases  referred  to  in 
the  preceding  section.  The  conclusion  we  affirm  rests  on  ele- 
mentary principles  of  constitutional  law  and  is  strongly  fortified 
by  decisions  of  analogous  cases.°-     So,  it  has  been  held  that  a 


S9  Boston  &c.  R.  Co.  v.  County 
Comrs.,  79  Maine  386,  10  Atl.  113. 

90  State  V.  Chicago  &c.  R.  Co., 
29  Nebr.  412,  45  N.  W.  469. 

91  State  V.  Chicago  &c.  R.  Co., 
29  Nebr.  412,  45  N.  W.  469.  Chi- 
cago &c.  R.  Co.  V.  Taylor  (Okla.), 
192  Pac.  349.  See  also  the  chap- 
ter on  Highway  Crossings,  where 
many  other  authorities  are  cited 
to  the  same  effect,  especially  post 
§  1570,  et  seq.  As  to  power  of 
municipalities  to  require  change 
of  grade,  see  Houston  &c.  R.  Co. 
V.  Dallas,  98  Tex.  396,  84  S.  W. 
648,  70  L.  R.  A.  850,  and  note;  also, 
post  chapter  on  Railroads  in 
Streets. 

92  Georgia  &c.  R.  Co.  v.  Smith, 
128  U.  S.  174,  9  Sup.  Ct.  47.  2,2  L. 
ed.  Zyj;  Ruggles  v.  Illinois.  108 
U.  S.  526,  2  Sup.  Ct.  832,  27  L.  cd. 


812;  Roberts  v.  Northern  Pacific  R. 
Co.,  158  U.  S.  1,  15  Sup.  Ct.  756, 
39  L.  ed.  873;  Northern  Pac.  R. 
Co.  V.  North  Dakota,  236  U.  S. 
585,  35  Sup.  Ct.  429,  59  L.  ed.  735. 
Ann.  Cas.  1916A,  1;  Mercantile 
Trust  Co.  V.  Texas  &c.  R.  Co.,  51 
Fed.  529;  Connecticut  &c.  R.  Co.  v. 
County  Comrs.,  127  Mass.  50,  34 
Am.  Rep.  338;  Drury  v.  Midland 
&c.  R.  Co.,  127  Mass.  571;  Wyne- 
hamer  v.  People,  13  N.  Y.  378.  See 
Rippe  V.  Becker,  56  Minn.  100,  57 
N.  W.  331,  22  L.  R.  A.  857;  Van- 
horne  v.  Dorrance,  2  Dall.  (U.  S.) 
304,  1  L.  ed.  391;  State  v.  Beackmo, 
8  Blackf.  (Ind.)  246;  Evison  v.  Chi- 
cago &c.  R.  Co.,  45  Minn.  370,  48 
N.  W.  6,  11  L.  R.  A.  434;  State  v. 
Billings,  55  Minn.  467,  57  N.  W. 
206.  794,  43  Am.  St.  524;   Eaton  v. 


§792 


RAILROADS 


156 


statute  requirinj;"  railroad  companies  to  furnish  free  transporta- 
tion to  shippers  of  livestock,  without  any  compensation  therefor, 
is  void  as  a  deprivation  of  property  without  due  process  of  law, 
and  as  a  denial  of  tlie  equal  protection  of  the  laws.^''  Under  the 
form  of  regulatini^-  the  compensation  for  transportini^  frei.^ht  and 
passengers  the  legislature  cannot  compel  a  railroad  corporation 
to  carry  freight  and  passengers  unless  compensation  is  ade- 
c|uately  provided.  In  our  opinion  the  legislature  has  no  power  to 
require  a  railroad  company  to  carry  freight  or  passengers  without 
compensation  in  money,  and  cannot  substitute  for  money  prop- 
erty or  claims  against  some  other  company  or  person.''*  There 
may  be,  and  probably  is,  an  exception  to  the  general  rule  that 
compensation  must  be  made  in  money,  and  that  is  where  the 
sovereign  requires  the  services,  for  there  is  authority  for  holding 
that,  where  the  sovereign  takes  property,  it  need  not  pay  the 
compensation  at  the  time. 

§  792  (673).  Federal  corporation — State  cannot  transform  into 
a  domestic  corporation. — It  is  beyond  the  power  of  a  state  to 
transform  a  corporation  created  by  the  federal  congress  into  a 
state  corporation.''"'  In  the  cases  referred  to  in  the  note,  the  state 


Boston  &c.  R.  Co.,  51  N.  H.  504, 
12  Am.  Rep.  147;  Thompson  v. 
Androscoggin  &c.  R.  Co.,  54  N.  H. 
545;  State  v.  Ravine  &c.  Com.,  39 
X.  J.  L.  665. 

03  Atchison  &c.  R.  Co.  v.  Camp- 
bell, 61  Kans.  439,  59  Pac.  1051,  48 
L.  R.  A.  251.  7<S  Am.  St.  328;  At- 
lantic &c.  Ry.  Co.  v.  United  States, 
76  Fed.  186  ("land  grant"  railroad). 
See  also  as  to  invalidity  of  statute 
compelling  company  to  carry  mili- 
tia at  the  rate  of  one  cent  a  mile. 
In  re  Gardner,  84  Kans.  264,  113 
Pac.  1054,  33  P.  R.  A.  (N.  S.)  956. 
P.nt  compare  State  v.  Chicago  &c. 
Ry.  Co.,  118  Minn.  380,  137  N.  W. 
2,  41  L.  R.  A.  (N.  S.)  524;  State  v. 
Missouri  &c.  Ry.  Co.,  262  Mo.  507. 
172  S.  W.  35. 


^*  The  conclusion  we  affirm  is 
full}'  sustained  by  the  reasoning  in 
-Xttorney-General  v.  Old  Colony  R. 
Co.,  160  Mass.  62,  35  N.  E.  252,  22 
L.  R.  A.  112.  It  certainly  rests  on 
solid  principle  The  decision  in  the 
case  of  Reagan  v.  Farmers'  Loan 
&c.  Co..  154  U.  S.  362,  14  Sup.  Ct. 
1047,  38  L.  ed.  1014,  as  it  seems 
to  us,  declares  the  principle  which 
we  have  asserted.  In  the  case  last 
cited  the  court  adjudged  that  the 
decision  in  Budd  v.  New  York,  143 
U.  S.  517,  12  Sup.  Ct.  468,  36  L.  ed. 
247,  did  not  assert  a  contrary  doc- 
trine. 

"■^  Roberts  v.  Northern  Pacific  R. 
Co..  158  U.  S.  1,  15  Sup.  Ct.  766,  39 
L.  ed.  873. 


157  CONTROL,   LOCATION   AND    CONSTRL'CTKJN  §  792 

of  Wisconsin  had  given  its  consent  to  a  railroad  company  created 
by  the  United  States  to  enter  its  territory,  and  it  was  held  that 
the  state  had  no  power  to  enact  a  statute  making  the  corporation 
a  domestic  one,  and  take  away  its  status  as  a  federal  corporation, 
and  that,  notwithstanding  such  a  statute,  it  remained  a  federal 
corporation,  and.  as  such,  derived  its  rights  from  the  general 
government/"'  The  Supreme  Court  of  the  United  States,  while 
professing  to  distinguish  the  decisions  of  the  state  court,  prac- 
tically denied  their  authority."' 

o«See    Pacific    Railroad   Removal  Pac.  R.  Co..  11  Wis.  114,  45  N.  W. 

Cases,  115  U.  S.  1,  5  Sup.  Ct.  1113,  811.  was  practically  overruled.     So 

29  L.  ed.  319;  Olcott  v.  Supervisors,  also    was    Whiting    v.    Sheboygan 

16  Wall.  (U.  S.)  678,  21  L.  ed.  382;  &c.    Railroad    Co.,   25    Wis.    167,   3 

Osbnrn  v.  Bank,  9  Wheat.   (U.  S.)  Am.   Rep.  30.     And  see  further  as 

738.  817,  6  L.  ed.  204;  Cromwell  v.  to  exemption  of  such  corporations 

County  of  Sac,  94  U.  S.  351.  24  L.  from    state    control;    California    v. 

ed.    195;  Johnson   Co.  v.   Wharton,  Cent.    Pac.    R.    Co.,   127  U.   S.    1.  8 

152  U.  S.  252,  14  Sup.  Ct.  608,  38  L.  Sup.  Ct.  1073.  32  L.  ed.  150;  Barron 

cd.  429.  v.   Burnside.   121   U.  S.   186.  7  Sup. 

"■  The  case  of  Ellis  v.   Northern  Ct.  931,  30  L.  ed.  915. 


CHAPTER  XXVIII 


statp:  railroad  commissioners 


Sec. 

795.  Introductory. 

796.  Nature  of  state  railroad  com- 

mi.s.sion.s. 

797.  The  power  to  create  railroad 

commission.s. 

798.  Strictly    judicial    powers    can 

not  be  conferred  upon  ad- 
ministrative or  ministerial 
officers. 

799.  Granting    authority    to    make 

regulations  not  a  delegation 
of  legislative  powder. 

800.  Legislature  can  not  authorize 

a  railroad  commission  to 
make  unjust  discriminations. 

801.  Members  of  railroad  commis- 

sion are  public  officers. 

802.  Qualifications  of  commission- 

ers. 

803.  Powers    of    railroad    commis- 

sioners— Illustrative  cases. 

804.  Powers     of     commissioners — 

Other  cases. 

805.  Jurisdiction    of   railroad    com- 

mis.sioners. 
806    Jurisdiction  of  commission  not 
extended     by     implication — 
General  rule. 

807.  Incidental    powers    of    a    rail- 

road commission. 

808.  Right    of    railroad    companies 

to  a  hearing. 

809.  Orders  of  commissioners  not 

contracts. 

810.  Certificates  of  commissioners 

that  rates  are  reasonable — 
Effect  of. 

811.  Regulation     of     charges     for 

transporting    property    and 
passengers. 

812.  Domestic  commerce. 


Sec. 

813.  Reasonableness  of  frciglil  and 

fare  tarifif  of  rates — How  far 
a  judicial  question. 

814.  Regulation    of    charges — Test 

of  reasonableness. 

815.  Tarifif  of  rates — Tests  of  rea- 

sonableness. 

816.  Tariff    of    rates — Discrimina- 

tion  in   intrastate   rates. 

817.  Stations  —  Power      to      order 

company  to  provide. 

818.  Naming  stations. 

819.  Switching   charges. 

820.  Procedure    before    the     com- 

missioners. 

821.  ElTect  of  the  decision   of  the 

commissioners  that  a  com- 
pany has  not  committed  an 
act  authorizing  a  forfeiture. 

822.  Enforcing   the    orders    of   the 

commissioners  —  GenerallJ^ 

823.  Enforcing   the    orders    of   the 

commissioners — ^  Ian  damns. 

824.  Mandamus — Enforcing  orders 

of  commissioners — Illustra- 
tive cases. 

825.  Suits     against    railroad     com- 

missioners are  not  ordi- 
narily suits  against  the  state. 

826.  Remedies    for    illegal    acts,  of 

railroad  commissioners. 

827.  Specific     statutory     remedy — 

Federal   rule. 

828.  Parties    to    suits    against    rail- 

road commissioners. 

829.  Review   by   certiorari — Other 

modes  of  review. 

830.  Injunction     against     commis- 

sioners— Generally. 


1.3!i 


STATE   K.ULliOAD   CO.M.M  ISSIOXKRS 


§795 


Sec.  Sec. 

831.  Where   commissioners   exceed  sioners    on    tlie    ground    of 

their  jurisdiction   injunction  fraud. 

will   lie.  833.    Federal  question — Removal  of 

832.  A'acating    orders    of    commis-  causes  from  state  courts. 

§795  (674).  Introductory. — The  system  of  governing-  and 
regulating  railroads  In-  commissions  is,  in  most  of  the  states, 
borrowed  in  the  main  from  the  English  statutes.^  llie  statutes 
enacted  by  the  states  are  essentially  different  in  matters  of 
detail,-  but  all  are  directed  .to  the  attainment  of  the  same  general 
object,  namely,  the  regulation  of  the  duties  of  railroads  as  com- 
mon carriers  and  the  regulation  of  the  management  and  control 
of  railroads,  so  far  as  they  are  aft'ected  by  a  public  interest.  The 
power  to  establish  such  commissions  is  rested  upon  the  general 
principle  that  the  state  has  control  over  property  and  pursuits 
of  a  public  nature.^  It  has  been  said  that  the  statutes  create  no 


1  The  reasons  for  giving-  the 
power  to  such  a  commission  are 
well  stated  by  Justice  Brewer  in 
Chicago  &c.  Ry.  Co.  v.  Day,  35 
Fed.  866.  See  also  INIinneapolis  &c. 
R.  Co.  v.  Railroad  Com.,  Wis.,  116 
X.  W.  905.  17  L.'r.  a.  (N.  S.)  821. 

-  In  some  of  these  states  the  com- 
missioners are  little  else  than  mere 
advisor}'-  officers,  while  in  most 
states  they  have  power  to  make 
orders  which  in  their  nature  closely 
resemble  judgments  and  to  invoke 
the  aid  of  the  courts  to  compel 
obedience  to  their  orders.  People 
V.  New  York  &c.  R.  Co.,  104  N.  Y. 
58.  9  N.  E.  856.  58  Am.  Rep.  484, 
29  Am.  &  Eng.  R.  Cas.  480;  Inter- 
state Commerce  Commission  v. 
Brimson,  154  U.  S.  447.  14  Sup.  Ct. 
1125,  38  L.  ed.  1047;  State  v.  Fre- 
mont &c.  R.  Co.,  22  Nebr.  313,  35 
N.  W.  118;  McWhorter  v.  Pensa- 
cola  &c.  R.  Co.,  24  Fla.  417.  5  So. 
129.  2  L.  R.  A.  504,  12  Am.  St.  220, 


37  Am.  &  Eng.  R.  Cas.  566:  State  v. 
Chicago  &c.  R.  Co.,  38  Minn.  281, 
Z7  N.  W.  782;  Board  v.  Oregon  &c. 
R.  Co.,  17  Ore.  65,  19  Pac.  702,  2  L. 
R.  A.  195. 

3  Chicago  &c.  R.  Co.  v.  Iowa.  94 
U.  S.  155,  24  L.  ed.  94;  Peik  v.  Chi- 
cago &c.  R.  Co.,  94  U.  S.  164,  24  L. 
ed.  97;  Stone  v.  Farmers'  &c.  Trust 
Co.,  116  U.  S.  307,  6  Sup.  Ct.  348, 
388,  1191.  29  L.  ed.  6Z6\  Ruggles  v. 
Illinois.  108  U.  S.  526,  2  Sup.  Ct. 
832,  27  L.  ed.  812;  Stone  v.  Natchez 
&c.  R.  Co.,  62  Miss.  646.  See  post, 
§  797.  In  Wellman  v.  Chicago  &c. 
R.  Co.,  83  Mich.  592,  47  N.  W.  489. 
45  Am.  &  Eng.  R.  Cas.  249,  the 
question  of  the  power  of  a  state 
to  establish  a  railroad  commission 
received  careful  consideration.  See 
also  Siler  v.  Louisville  &c.  R.  Co., 
213  U.  S.  175,  29  Sup.  Ct.  451,  53  L. 
ed.  753;  Cleveland  City  Ry.  Co.  v. 
Cleveland,  94  Fed.  385;  Wallace  v. 
Arkansas    Cent.    R.    Co.,    118    Fed. 


^^;  7!)6  KAILHOADS  lf)0 

new  or  ruldilional  duties/  but  this  statement,  as  applied  to  some 
of  the  state  statutes,  requires  qualification.  The  principal  and 
leading  purpose  of  most  of  the  statutes  is  to  control  and  re.^iilate 
the  charges  for  the  transportation  of  freight  and  passengers,  but 
the  provisions  of  the  statutes  generally  go  far  beyond  the  regula- 
tion of  charges  for  transi)ortation  and  confer  comprehensive 
powers  over  the  maintenance,  management  and  operation  of 
railroads.^  It  is  not  our  purpose  in  this  chapter  to  treat  very  fully 
of  the  power  of  state  railroad  commissions  to  regulate  the 
charges  made  by  railroad  companies  Jn  performing  services  and 
duties  as  common  carriers,  nor  to  treat  of  the  power  of  the  states 
to  enact  statutes  relating  to  interstate  railroads,  although  we  shall 
incidentally  discuss  those  subjects,  since  they  naturally  fall 
■within  the  general  scope  of  this  chapter,  but  as  those  subjects 
will  be  considered  in  the  part  of  our  work  devoted  to  a  discus- 
sion of  the  rights,  duties  and  liabilities  of  railroads  as  common 
carriers,  we  pass  them  without  an  extended  or  elaborate  con- 
sideration. 

§796  (675).  Nature  of  state  railroad  commissions. — Govern- 
mental control  of  railroads  in  many  of  the  states  is  exercised 
through  the  instrumentality  of  officers  generally  called  railroad 
commissioners.  These  officers,  of  course,  derive  all  their  powers 
from  the  statute  wdiich  creates  the  commission,  and  a  railroad 
commission  is  a  tribunal  possessing  naked  statutory  powers.  It 
is  not  a  coitrt,  although  it  may  exercise  powers  of  a  judicial 
nature.^  The  fact  that  powers  in  their  nature  judicial  are  exer- 

422;    Chicago    Union    Trac.    Co.    v.  nal    Co.,    41    l-"la.    Zll ,    27    So.    221: 

Chicago,  199  111.  484,  65  N.  E.  451;  State    v.    Chicago    &c.    R.    Co.,    86 

Railroad   Com.  v.   Houston   &c.    R.  Iowa  641,  53  N.  W.  323;  People  v. 

Co.,    90    Tc.x.    340,    38    S.    W.    750;  Railroad   Comrs.,   53  App.  Div.  61. 

Atlantic  Coast  Line  R.  Co.  v.  Com-  65  N.  Y.  S.  597,  affirmed  in  164  N. 

monwealth,   102  Va.   599,  46  S.   E.  Y.  572,  58  N.  E.  1091. 
911.  ^'Interstate    Commerce    Com.    v. 

4  Atchison  &c.  R.  Co.  v.  Denver  Cincinnati  &c.  Co.,  64  Fed.  981; 
&c.  R.  Co.,  110  U.  S.  667,  4  Sup.  Ct.  Kentucky  &c.  Bridge  Co.  v.  Louis- 
185,  28  L.  ed.  291,  16  Am.  &  Eng.  ville  &c.  R.  Co.,  11  Fed.  567.  612. 
R.  Cas.  57.  Sec    also    Louisville    &c    R.    Co.    v. 

5  See  State  v.  Jacksonville  Termi-  Broun.  123  Fed  946;  Southern   Ind. 


161 


STATE   RAILROAD  COMMISSIONERS 


§796 


cised  by  an  officer,  a  board  of  officers,  or  by  a  body  of  officers, 
does  not  make  the  officer  a  judge,  nor  does  it  constitute  the  body 
or  board  a  court/  The  truth  is  that  all  officers  who  have  discre- 
tionary duties  to  perform  exercise  quasi  judicial  power.  A 
constable  who  takes  a  bond,  a  sheriff  who  levies  a  writ,  or  a 
governor  who  decides  upon  the  validity  of  a  requisition  for  a 
fugitive  from  justice  exercises  a  power  that  is  in  its  nature 
judicial,  but  it  is  not  a  judicial  power  in  the  same  sense  as  the 
power  of  a  court  or  judge.  The  functions  and  duties  of  railroad 
commissioners  are  administrative  or  ministerial,  and  neither 
legislative  nor  judicial.     Their  powers  cannot  be  strictly  legis- 


R.  Co.  V.  Railroad  Com.,  172  Ind. 
113,  87  N.  E.  966;  In  re  Railroad 
Comrs.,  15  Nebr.  679,  50  N.  W.  276. 
The  principle  asserted  in  the  text 
is  laid  down  in  the  cases  which 
hold  that  state  tax  boards  and 
similar  tribunals  are  not  courts, 
although  they  are  invested  with 
quasi  judicial  power.  Langenberg 
V.  Decker,  131  Ind.  471,  31  N.  E. 
190,  16  L.  R.  A.  108;  State  v.  Wood, 
110  Ind.  82,  10  N.  E.  639;  Kuntz  v. 
Sumption,  117  Ind.  1,  19  N.  E.  474, 
2  L.  R.  A.  655.  Compare  Common- 
wealth V.  Atlantic  &c.  R.  Co.,  106 
(Va.)  61,  55  S.  E.  572.  It  is  an 
administrative  and  not  a  judicial 
body.  Chicago  &c.  Ry.  Co.  v. 
Dougherty,  39  S.  Dak.  147,  163  N. 
W.  715. 

7  Flournoy  v.  Jeffersonville,  17 
Ind.  169,  79  Am.  Dec.  468;  Wilkins 
V.  State,  113  Ind.  514,  519,  16  N.  E. 
192;  Betts  v.  Dimon,  3  Conn.  107; 
Crane  v.  Camp,  12  Conn.  463.  The 
decisions  recognize  the  constitu- 
tionality of  the  act  of  congress  cre- 
ating the  federal  interstate  com- 
merce commission  and  affirm  that 
the  powers  of  that  tribunal  are  not 
judicial  in  the  proper  sense  of  the 


term.  Interstate  Commerce  Com- 
mission V.  Brimson,  154  U.  S.  447, 
14  Sup.  Ct.  1125,  38  L.  ed.  1047.  In 
the  case  last  cited  the  decision  in 
Interstate  Commerce  Commission, 
Re,  53  Fed.  476,  was  reversed,  and 
it  was  held  that  the  provision  of 
the  act  of  congress  authorizing  the 
commission  to  apply  to  the  courts 
to  punish  a  witness  who  refused 
to  give  testimony  or  produce  docu- 
ments was  constitutional.  The 
court  cited  the  cases  of  Smith  v. 
Adams,  130  U.  S.  167,  9  Sup.  Ct. 
566,  32  L.  ed.  895;  Osborn  v.  Bank 
of  United  States,  9  Wheat.  (U.  S.) 
738,  6  L.  ed.  204;  Cherokee  Nation 
V.  Southern  Kans.  &c.  R.  Co.,  135 
U.  S.  641,  10  Sup.  Ct.  965,  34  L.  ed. 
295;  Gordon  v.  United  States,  117 
U.  S.  appx.  697;  Sanborn,  In  re,  148 
U.  S.  222,  13  Sup.  Ct.  577,  Z7  L.  ed. 
429;  De  Groot  v.  United  States,  5 
Wall.  (U.  S.)  419,  18  L.  ed.  700; 
Anderson  v.  Dunn,  6  Wheat.  (U. 
S.)  204,  5  L.  ed.  242;  Kilbourn  v. 
Thompson,  103  U.  S.  168,  190,  26  L. 
ed.  377;  Whitcomb's  Case,  120 
Mass.  118,  and  after  commenting 
on  those  cases,  said  that:  "The 
views    we    have    expressed    in    the 


§797 


RAILROADS 


162 


lative,  for  legislative  powers  cannot  be  delegated,^  nor  can  their 
powers  be  judicial  in  the  proper  sense  of  the  term,  for  the  judicial 
power  can  only  be  exercised  by  courts  and  judges.^ 

§  797   (676).     The  power  to  create  railroad  commissions. — The 
power  to  create  a  board  of  railroad  commissioners  rests,  as  we 


present  case  are  not  inconsistent 
with  anything  said  or  decided  in 
those  cases.  They  do  not  in  any 
manner  infringe  upon  the  salutary 
principle  that  congress,  excluding 
the  special  cases  provided  for  in 
the  constitution — as,  for  instance — 
in  section  2  of  article  2,  may  not 
impose  upon  the  courts  of  the 
United  States  any  duties  that  are 
not  strictly  judicial."  The  court 
asserted  by  its  line  of  reasoning 
that  the  commission  was  not  a 
court  nor  its  duties  judicial  in  the 
proper  sense  of  the  term.  See  Pa- 
cific R.  Com.,  Re,  32  Fed.  241;  In- 
terstate Commerce  Com.  v.  Cin- 
cinnati &c.  Co.,  64  Fed.  981. 

*  Cooley  Const.  Lim.  (6th  ed.) 
137;  (7th  ed.)  163.  But  see  Minne- 
apolis &c.  Co.,  In  re,  30  N.  Dak. 
221,  152  N.  W.  513.  In  Chicago 
&c.  R.  Co.  v.  Dey,  35  Fed.  866,  the 
court  adjudged  that  in  creating  a 
board  of  railroad  commissioners 
and  investing  it  with  authority  to 
regulate  freight  tariffs  and  the  like 
the  legislature  did  not  delegate 
legislative  powers.  It  is  difficult 
to  define  with  precision  the  line 
between  legislative  and  ministerial 
power,  but  it  is  clear  that  where 
a  law  is  enacted  providing  general 
rules  for  the  government  of  offi- 
cers charged  with  the  administra- 
tion of  the  law  there  is  no  delega- 
tion of  legislative  power  although 
the   officers    may   be   invested   with 


authority  to  make  rules  and  regu- 
lations. But  see  Georgia  &c.  R. 
Co.  v.  Smith,  70  Ga.  694,  and  see 
Southern  Pac.  Co.  v.  Colorado  &c. 
Co.,  101  Fed.  779,  to  the  effect  that 
they  can  not  fix  a  rate  as  that 
would  be  legislative.  Nor  can  they 
change  the  rule  as  to  the  time  when 
liability  as  a  common  carrier  ceases 
and  that  of  a  warehouseman  be- 
gins. Jones  Bros.  v.  Southern  R. 
Co.,  Id  S.  Car.  dl ,  56  S.  E.  666. 

^  Interstate  Commerce  Commis- 
sion V.  Brimson,  154  U.  S.  447.  14 
Sup.  Ct.  1125,  38  L.  ed.  1047;  United 
States  V.  Ferreira,  13  How.  (U.  S.) 
40,  note,  14  L.  ed.  42;  Hayburn's 
Case,  2  Ball.  (U.  S.)  409,  1  L.  ed. 
436;  Cans,  Ex  parte,  17  Fed.  471; 
Allen,  In  re,  19  Fed.  809;  Burgoyne 
V.  Supervisors,  5  Cal.  9;  Vander- 
cook  V.  Williams,  106  Ind.  345,  1 
N.  E.  619,  8  N.  E.  113;  State  v. 
Noble,  118  Ind.  350,  21  N.  E.  244. 
4  L.  R.  A.  101,  10  Am.  St.  143;  Van 
Slyke  V.  Trempealeau  &c.  Co.,  39 
Wis.  390,  20  Am.  Rep.  50.  See  lead- 
ing article  in  62  Cent.  L.  J.  199,  for 
a  discussion  of  the  nature  of  the 
powers  of  such  commissioners. 
Rut  compare  Interstate  Com. 
Comrs.  V.  Cincinnati  &c.  R.  Co., 
167  U.  S.  479,  17  Sup.  Ct.  896,  42  L. 
ed.  243;  Atlantic  Exp.  Co.  v.  Wil- 
mington &c.  R.  Co.,  Ill  N.  Car. 
463.  16  S.  E.  393.  18  L.  R.  A.  393, 
2,2  Am.  St.  805. 


]6;j 


STATE  RAILROAD   COMMISSIONERS 


§797 


believe,  upon  the  principle  that  where  rights  or  property  are 
"affected  with  a  public  interest"  they  are  subject  to  legislative 
control.  Many  of  the  cases  which  uphold  statutes  creating  such 
boards,  however,  proceed  upon  the  theory  that  such  statutes  rest 
upon  the  police  power.  But  whatever  may  be  the  true  theory 
as  to  the  principle  on  which  such  statutes  rest,  there  can  be  no 
doubt  as  to  their  validity.  There  is  practically  no  diversity  of 
judicial  opinion  upon  the  general  question.^" 


1"  The  federal  courts  have  af- 
firmed the  validity  of  the  act  of 
congress  establishing  the  interstate 
commerce  commission,  and  the 
principle  asserted  applies  to  state 
railroad  commissions  Interstate 
Commerce  Com.  v.  Brimson,  154 
U.  S.  447,  14  Sup.  Ct.  1125,  38  L.  ed. 
1047;  Fargo  v.  Michigan,  121  U.  S. 
230,  239,  7  Sup.  Ct.  857,  30  L.  ed. 
890;  Kentucky  &c.  Co.  v.  Louisville 
&c.  Co.,  Zl  Fed.  567;  Interstate 
Commerce  Com.  v.  Cincinnati  &c. 
Co.,  64  Fed.  981.  The  federal 
courts  have  also  upheld  state  stat- 
utes creating  boards  of  railroad 
commissioners.  Stone  v.  Farmers' 
Loan  &c.  Co.,  116  U.  S.  307,  6  Sup. 
Ct.  334,  29  L.  ed.  (iZ(i;  Chicago  &c. 
Co.  v.  Dey,  35  Fed.  866,  875;  Tilley 
V.  Savannah  &c.  R.  Co.,  5  Fed.  641. 
In  the  case  of  Reagan  v.  Farmers' 
&c.  Co.,  154  U.  S.  362,  14  Sup.  Ct. 
1047,  38  L.  ed.  1015,  the  court  said: 
"Passing  from  the  question  of  jur- 
isdiction to  the  act  itself  there  can 
be  no  doubt  of  the  general  power 
of  the  statute  to  regulate  the  fares 
and  freight  which  may  be  charged 
by  railroads  or  other  carriers,  and 
that  this  regulation  can  be  carried 
on  by  means  of  a  commission.  Such 
a  commission  is  merely  an  admin- 
istrative board  created  by  the  state 
for    the    purpose    of    carrying   into 


effect  the  will  of  the  state  as  ex- 
pressed by  its  legislation.  Railroad 
Commission  Cases,  116  U.  S.  307, 
6  Sup.  Ct.  334,  29  L.  ed.  (i2>(i.  No 
valid  objection,  therefore,  can  be 
made  on  account  of  the  general 
features  of  this  act — those  by  which 
the  state  has  created  a  railroad 
commission  and  intrusted  it  with 
the  duty  of  prescribing  rates  of 
freights  and  fares,  as  well  as  other 
regulations,  for  the  management  of 
the  railroads  of  the  state."  In  the 
case  of  the  Charlotte  &c.  R.  Co.  v. 
Gibbes,  142  U.  S.  386,  12  Sup.  Ct. 
255,  35  L.  ed.  1051,  the  court 
upheld  a  state  statute  creating 
a  board  of  railroad  commission- 
ers, and,  in  the  course  of  the 
opinion,  in  speaking  of  railroad 
companies,  said:  "Being  the  re- 
cipients of  special  privileges  from 
the  state  to  be  exercised  in  the  in- 
terest of  the  public,  and  assuming 
the  obligations  thus  mentioned, 
their  business  is  deemed  affected 
with  a  public  use,  and  to  the  extent 
of  that  use  is  subject  to  legislative 
regulation.  Georgia  &c.  Banking 
Co.  V.  Smith,  128  U.  S.  174,  179,  9 
Sup.  Ct.  47,  32  L.  ed.  VIT  The 
state  courts  have  uniformly  ad- 
judged such  statutes  to  be  valid. 
State  V.  Chicago  &c.  R.  Co.,  38 
Minn.  281,  Z1  N.  W.  782;   Georgia 


^  1\)S 


RAILROADS 


16-4 


§  798  (677).  Strictly  judicial  powers  cannot  be  conferred  up- 
on administrative  or  ministerial  officers. — We  have  elsewhere 
suggested  that  purely  or  strictly  judicial  power  cannot  be  con- 
ferred upon  railway  commissioners,  for  they  are  administrative 
or  ministerial  officers.  The  constitutional  provision  relative  to 
the  separation  of  the  departments  of  government  is  not  a  mere 
empty  declaration,  but  is  a  part  of  the  organic  law,  and  is  of 
great  force  and  vigor.  It  forbids  the  blending  of  judicial  duties 
and  functions  with  those  that  are  ministerial  or  administrative. 
In  accordance  with  this  fundamental  principle  it  is  held  that  the 
legislature  has  no  power  to  invest  railway  commissioners  with 
authority  to  define  offenses  and  prescribe  punishment. ^^  So  it 
has  been  held  that  a  state  railroad  commission  is  not  a  court 
within  the  meaning  of  the  statute  forbidding  the  federal  courts 
to  enjoin  proceedings  in  a  state  court. ^-  It  has,  however,  been 
held  that  a  railroad  commission  may  be  constituted  a  court,  and 
as  such  invested  with  judicial  power.^^  The  attention  of  the  court 


&c.  R.  Co.  V.  Smith,  70  Ga.  694,  9 
Am.  &  Eng.  R.  Cas.  385;  Chicago 
&c.  R.  Co.  V.  Jones,  149  111.  361, 
37  N.  E.  247,  24  L.  R.  A.  141,  41 
Am.  St.  278;  Stone  v.  Yazoo  &c. 
R.  Co.,  62  Miss.  607,  21  Am.  & 
Eng.  R.  Cas.  6,  52  Am.  Rep.  193; 
State  V.  Fremont  &c.  R.  Co.,  22 
Nebr.  313,  35  N.  W.  118,  and  23 
Nebr.  117,  36  N.  W.  308;  Board  of 
R.  Com.  V.  Oregon  R.  &c.  Co.,  17 
Ore.  65,  19  Pac.  702,  2  L.  R.  A.  195, 
35  Am.  &  Eng.  R.  Cas.  542;  Char- 
lotte &c.  R.  Co.  V.  Gibbes,  27  S. 
Car.  385,  4  S.  E.  49,  31  Am.  &  Eng. 
R.  Cas.  464;  Norfolk  &c.  Co.  v. 
Commonwealth,  103  Va.  289,  294, 
49  S.  E.  39;  Winchester  &c.  R.  Co. 
V.  Commonwealth,  106  Va.  264, 
55  S.  E.  692.  See  also  note  in  Ann. 
Cas.  1917A,  975.  And  this  has  been 
held  even  where  the  statute  applies 
only  to  steam  railroads  or  makes 
other     classification.       Consumers' 


League  v.  Colorado  &c.  R.  Co.,  53 
Colo.  54,  125  Pac.  577,  Ann.  Cas. 
1914A,  1158,  and  other  cases  then 
cited  in  note;  Chicago  &c.  R.  Co. 
V.  Railroad  Com.,  173  Ind.  469,  90 
N.  E.  1011;  Southern  R.  Co.  v. 
Railroad  Com.,  42  Ind.  App.  90,  83 
N.  E.  721. 

11  State  V.  Gaster,  45  La.  Ann. 
636,  12  So.  739.  The  reasoning  of 
Baxter,  J.,  in  Louisville  &c.  R.  Co. 
V.  Railroad  Com.,  19  Fed.  679,  sup- 
ports the  doctrine  of  the  text.  See 
also  Western  Un.  Tel.  Co.  v.  Myatt, 
98  Fed.  335.  But,  as  will  herein- 
after appear,  the  general  rule  stated 
in  the  text  has  not  been  fully  ap- 
plied by  some  of  the  courts  in  some 
cases. 

12  Mississippi  Railroad  Com.  v. 
Illinois  Central  R.  Co.,  203  U.  S. 
335,  27  Sup.  Ct.  90,  51  L.  ed.  209. 

13  Atlantic  Express  Co.  v.  Wil- 
mington  &c.    R.    Co.,    Ill    N.    Car. 


165 


STATE   RAILROAD   CO.MMISSION  ERS 


798 


in  the  case  to  which  we  refer  does  not  seem  to  have  been  directed 
to  the  principle  that  the  departments  of  government  are  separate, 
and  that  judicial  power  and  administrative  power  cannot  be 
blended  and  bestowed  upon  a  board  of  public  officers.  It  may 
possibly  be  that  where  the  constitution  of  the  state  does  not 
provide  that  the  departments  shall  be  separate,  judicial  and 
ministerial  powers  may  be  blended  and  bestowed  upon  a  board 
or  commission,  but  we  believe  that  the  principle  that  the  de- 
partments of  government  are  separate  is  fundamental  and  essen- 
tial to  the  existence  of  a  republican  government,"  and  that  no 
statute  can  be  valid  which  violates  that  principle.  It  is,  at  all 
events,  quite  clear  that  where  the  state  constitution  requires  that 
the  departments  shall  be  kept  separate  the  legislature  cannot 
unite  the  powers  and  bestow  them  upon  a  single  tribunal. ^^ 


463,  16  S.  E.  393,  32  Am.  St.  805, 
citing  Durham  &c.  R.  Co.  v.  Rich- 
mond &c.  R.  Co.,  104  N.  Car.  673, 
10  S.  E.  664;  Georgia  R.  &c.  Co. 
V.  Smith,  70  Ga.  694.  See  also 
State  V.  Wilmington  &c.  R.  Co., 
122  N.  Car.  877,' 29  S.  E.  334,  and 
an  order  of  the  commission,  like  a 
judgment,  has  been  held  binding 
upon  the  successor  of  the  company. 
Interstate  Commerce  Com.  v.West- 
ern  &c.  R.  Co.,  82  Fed.  192.  The 
cases  cited  do  not,  however,  go  to 
the  question  of  the  power  to  make 
a  board  of  railroad  commissioners 
a  court,  but  to  the  general  question 
of  the  right  to  regulate  railroads 
because  a  public  use  is  impressed 
upon  them. 

1*  Calder  v.  Bull,  3  Dall.  (U.  S.) 
386,  1  L.  ed.  648;  State  v.  Noble, 
118  Ind.  350,  21  N.  E.  244.  4  L.  R. 
A.  101,  10  Am.  St.  143.  Sill  v.  Vil- 
lage of  Corning,  15  N.  Y.  297,  303; 
Alexander  v.  Bennett,  60  N.  Y.  204; 
Greenough  v.  Greenough,  11  Pa. 
St.    489,    51    Am.    Dec.    567;    Mon- 


tesquieu Spirit  of  the  Laws,  book 
II,  ch.  6;  1  Bryce  Am.  Com. 
3;  Wilson  Congressional  Govern- 
ment, 12,  36.  See  also  62  Cent.  L. 
J.  199.  But  compare  Winchester 
&c.  R.  Co.  V.  Commonwealth,  106 
Va.  260,  55  S.  E.  692;  Dreyer  v. 
Illinois,  187  U.  S.  71,  23  Sup.  Ct.  28, 
32,  47  L.  ed.  79;  Prentiss  v.  Atlantic 
Coast  Line,  211  U.  S.  210,  26  Sup. 
Ct.  67,  53  L.  ed.  150;  Minneapolis 
&c.  R.  Co.,  In  re,  30  N.  Dak.  221,. 
152  N.  W.  513. 

13  Kilbourn  v.  Thompson,  103  U. 
S.  168,  26  L.  ed.  377;  Randolph  Ex 
parte,  2  Brock.  447;  Pacific  Railway 
Co..  In  re,  32  Fed.  241,  267;  Per- 
kins V.  Corbin,  45  Ala.  103,  6  Am. 
Rep.  698;  Hawkins  v.  Governor, 
The,  1  Ark.  570,  33  Am.  Dec.  346: 
Vaughn  v.  Harp,  49  Ark.  160,  4  S. 
W.  751;  Houston  v.  Williams,  13 
Cal.  24,  73  Am.  Dec.  565;  Missouri 
&c.  Co.  V.  First  National  Bank, 
74  111.  217;  Wright  v.  Defrees,  8 
Ind.  298;  Smythe  v.  Boswell,  117 
Ind.  365,  20  N.  E.  263,  and  autlmri- 


s  ' 


!)!^ 


K  AILHOADS 


166 


§799  (678).  Granting  authority  to  make  regulations  not  a 
delegation  of  legislative  power. — It  is  sometimes  difficult  to 
clearlv  define  the  line  between  a  delegation  of  legislative  ])o\ver 
and  a  grant  of  authority  to  perform  acts  which  are  in  their  nature 
quasi  legislative,  but  not  strictly  so.  The  constitutional  inhibi- 
tion which  prevents  the  delegation  of  legislative  power  does  not 
prevent  the  grant  of  authority  to  make  rules  and  regulations  for 
the  government  of  a  particular  subject.  In  creating  a  board  of 
railroad  commissioners  and  investing  it  with  authority  to  make 
rules  and  regulations  for  the  government  of  railroads,  the  legis- 
lature really  enacts  the  law  which  governs  the  subject  but  in- 
trusts to  the  board  the  execution  of  the  law.  For  the  law  the 
statute  must  be  looked  to,  as  the  commissioners  cannot  enact 
laws,  although  they  may  make  reasonable  rules  and  regulations 
where  the  authority  to  make  such  rules  and  regulations  is  ex- 
pressly or  impliedly  conferred  upon  them  by  the  statute.^® 


ties  cited;  Turner  v.  Althaus.  6 
Nebr.  54:  People  v.  Albertson,  55 
N.  Y.  50;  People  v.  Keeler,  99  N.  Y. 
463,   52  Am.   Rep.  49. 

^6  In  Atlantic  &c.  Co.  v.  Wilniinj?- 
ton  &c.  R.  Co.,  Ill  N.  Car.  463,  16 
S.  E.  393,  18  L.  R.  A.  393,  32  Am. 
St.  805,  the  court  quoted  with  ap- 
t>roval  from  the  opinion  in  Georgia 
R.  Co.  V.  Smith,  70  Ga.  694,  the 
following:  "The  difference  between 
the  power  to  pass  a  law  and  the 
power  to  adopt  rules  and  regula- 
tions to  carry  the  law  into  effect 
is  apparent  and  great,  and  this  we 
understand  to  be  the  distinction 
recognized  strikingly  by  all  the 
courts  as  the  true  rule  in  determin- 
ing whether  or  not  in  such  cases  a 
legislative  power  is  granted.  The 
former  would  be  unconstitutional 
whilst  the  latter  would  not."  See 
Storrs  V.  Pensacola  R.  Co.,  29  Fla. 
617,  11  So.  226;  Woodruff  v.  New 
York   &c.   R.   Co.,   59  Conn.   63,  20 


Atl.  17;  Siler  v.  Louisville  &c.  R. 
Co.,  213  U.  S.  175,  29  Sup.  Ct.  451, 
53  L.  ed.  753.  In  Port  Royal  Min. 
Co.  V.  Hagood,  30  S.  Car.  519,  9 
S.  E.  686,  688,  3  L.  R.  A.  841,  the 
general  subject  of  delegation  of 
legislative  authority  is  considered, 
and  it  is  said:  "It  is  undoubtedly 
true  that  the  legislative  power  can 
not  be  delegated,  but  it  is  not  al- 
ways easy  to  say  what  is  or  what 
is  not  legislative  power  in  the  sense 
of  the  principle.  The  Legislature 
is  only  in  session  for  a  short  period 
each  year,  and  during  the  recess 
can  not  attend  to  what  might  be 
called  the  business  affairs  of  the 
state.  From  the  necessity  of  the 
case,  as  well  as  the  character  of 
the  business  itself,  that  must  be 
performed  by  agents  for  that  pur- 
pose— such  as  the  Railroad  Com- 
mission, regents  of  the  lunatic  asy- 
lum, the  state  board  of  canvassers 
of  elections,  sinking  fund  commis- 


167  STATE  RAILROAD  COMMISSIONERS  §  800 

§  800  (679).  Legislature  cannot  authorize  a  railroad  commis- 
sion to  make  unjust  discriminations. — The  decisions  which  de- 
clare that  statutes  are  valid  although  they  enact  rules  that  apply 
onlv  to  the  class  of  corporations  known  as  railroad  companies 
carry  the  doctrine  quite  as  far  as  it  can  be  done  with  reason,  and, 
indeed,  it  may  well  be  doubted  if  some  of  those  decisions  do  not 
go  too  far.  If  they  can  be  defended  upon  principle  at  all  it  must 
be  upon  the  ground  that  railroad  companies  constitute  a  general 
distinctive  class  of  corporations,  and  that  for  this  reason  there 
is  a  sufficient  basis  of  classification.  If  there  be  no  such  basis  of 
classification,  and  a  mere  naked  arbitrary  singling  out  of  railway 
corporations  and  the  imposition  upon  them  of  special  burdens 
and  penalties,  there  is,  as  it  seems  to  us,  an  infraction  of  the 
federal  constitution  forbidding  the  denial  to  any  person  of  the 
equal  protection  of  the  laws.  For  illustration,  if  a  statute  should 
provide  that  all  contracts  of  railroad  companies  for  the  purchase 
or  sale  of  lands  should  be  stamped  with  a  government  stamp  of 
a  particular  value,  and  should  not  require  such  a  stamp  from 
other  persons,  it  seems  to  us  that  the  constitutional  provision 
would  be  violated.  So,  too,  such  a  statute  would,  as  we  believe, 
transgress  the  constitutional  provisions  incorporated  in  the  con- 
stitution of  most  of  the  states  prohibiting  the  enactment  of  spe- 
cial or  local  laws.  All  things  being  equal,  a  railroad  commission 
must,  as  we  suppose,  place  all  railroad  companies  under  like  con- 

sion,  etc.  The  numerous  authori-  this:  the  Legislature  can  not  dele- 
ties  cited  in  the  argument  show  gate  its  power  to  make  a  law,  but 
conclusively  that  while  it  is  neces-  it  can  make  a  law  to  delegate  its 
sary  that  the  law  should  be  full  power  to  determine  some  fact  or 
and  complete,  as  it  comes  from  the  state  of  things  upon  which  the  law 
proper  law-making  body,  it  may  makes,  or  intends  to  make,  its  own 
be,  indeed,  must  be  left  to  agents  action  depend.  To  deny  this  would 
in  one  form  or  another  to  per-  be  to  stop  the  wheels  of  govern- 
form  the  acts  of  executive  ad-  ment.  There  are  many  things  upon 
ministration,  which  are  in  no  which  wise  and  useful  legislation 
sense  legislative.  Without  in-  must  depend,  which  can  not  be 
cumbering  this  opinion  with  the  known  to  the  law-making  power, 
authorities,  we  think  the  view  and  must  therefore  be  a  subject  of 
is  well  stated  in  Lock's  Appeal,  72  inquiry  and  determination  outside 
Pa.  491,  13  Am.  Rep.  716.  'Then  of  the  halls  of  legislation.'" 
the   true   distinction,   I   conceive,   is 


{^800 


RAILROADS 


168 


ditions  upon  an  equality  and  not  unjustly  discriminate  between 
them.^^  Doubtless  there  may  be  cases  where  the  commission  may 
make  a  difference  between  railroad  companies,^^  but  to  authorize 
such  a  course  there  must,  in  our  opinion,  be  some  substantial 
basis  for  the  discrimination,  for  surely  neither  the  caprices  of 
the  commissioners  nor  their  mere  arbitrary  conclusions  can  be 
permitted  to  control  where  to  permit  such  a  thing  would  result 
in  an  unjust  and  groundless  discrimination.  In  a  strongly- 
reasoned  case  it  is  held  that  the  legislature  cannot  delegate  to  a 
railroad  commission  the  power  to  prescribe  penalties  for  acts 
not  defined  and  declared  offenses  by  the  legislature,"  nor  can 


17  Chicago  &c.  R.  Co.  v.  Iowa, 
94  U.  S.  155,  24  L.  ed.  94;  Dow  v. 
Beidelman,  125  U.  S.  680,  8  Sup.  Ct. 
1028,  31  I.,  ed.  841;  Dow  v.  Beidel- 
man, 49  Ark.  325,  5  S.  W.  718; 
Little  Rock  &c.  R.  Co.  v.  Hanni- 
ford,  49  Ark.  291,  5  S.  W.  294.  But 
see  Wadley  Southern  R.  Co.  v. 
Georgia,  235  U.  S.  651,  35  Sup.  Ct. 
214,  59  L.  ed.  405. 

18  Louisville  &c.  R.  Co.  v.  Rail- 
road Com.,  19  Fed.  679.  Sec  also 
ante  §  714,  n.  10. 

"Louisville  &c.  R.  Co.  v.  Rail- 
road Commission,  19  Fed.  679,  683. 
It  was  said  by  Baxter,  J.,  that: 
"We  think  the  property  of  a  citi- 
zen— and  a  railroad  corporation  is. 
in  legal  contemplation,  a  citizen — 
can  not  be  thus  imperiled  by  such 
vague,  uncertain,  and  indefinite  en- 
actments. The  corporations  and 
persons  against  whom  this  act  is 
directed  can  do  nothing  under  it 
with  reasonable  safety.  They  may 
take  counsel  of  the  commission, 
act  upon  their  advice,  and  honestly 
endeavor  to  conform  to  the  stat- 
ute. But  if  a  jury  before  whom 
they  may  be  subsequently  ar- 
raigned shall,  in  their  judgment 
and    upon    such    arbitrary   basis   as 


they  are  at  liberty  to  adopt,  con- 
clude that  the  commissioners  mis- 
advised or  that  the  managers  of 
the  accused  railroad  corporation 
made  a  mistake  in  regulating  their 
charges  upon  a  5  per  cent.,  instead 
of  a  4  per  cent,  basis,  the  honesty 
and  good  faith  of  the  accused  will 
go  for  nothing,  and  penalty  upon 
penalty  may  be  added  until  the  de- 
fendants' property  shall  be  grad- 
ually transferred  to  the  public.  This 
can  not  be  permitted.  Penalties 
can  not  be  thus  inflicted  at  the  dis- 
cretion of  a  jury.  Before  the  prop- 
erty of  a  citizen,  natural  or  corpo- 
rate, can  be  thus  confiscated,  the 
crime  for  which  the  penalty  is  in- 
flicted must  be  defined  by  the  law- 
making power.  The  legislature 
can  not  delegate  this  power  to  a 
jury.  If  it  can  declare  it  a  crim- 
inal act  for  a  railroad  corporation 
to  take  more  than  a  'fair  and  just 
return'  on  its  investments,  it  must, 
in  order  to  the  validity  of  the  law, 
define  with  reasonable  certainty 
what  would  constitute  such  'fair 
and  just  return.'  The  act  under 
review  does  not  do  this,  but  leaves 
it  to  the  jury  to  supply  the  omis- 
sion." 


169  STATE  RAILROAD  COMMISSIONERS  §  801 

the  power  be  committed  to  the  unlimited  discretion  of  a  jury. 
It  has  also  been  held  that  the  legislature  cannot  lawfully  author- 
ize a  commission  to  take  entire  control  of  the  business  and 
operation  of  a  railroad  company.^" 

§801  (680).  Members  of  railroad  commission  are  public  offi- 
cers.— A  member  of  a  railroad  commission  created  by  the  state, 
whether  elected  by  the  voters  of  the  state,  or  by  the  legislature, 
or  appointed  by  the  governor,  is  a  public  officer.  The  general 
rules  which  apply  to  the  term,  tenure,  and  duties  of  public  offi- 
cers apply  to  members  of  a  state  board  of  railway  commissioners 
so  far  as  the  statute  does  not  otherwise  provide.  Thus  it  is  held 
that  where  there  is  a  failure  to  elect  a  railroad  commissioner  at 
the  time  prescribed  by  statute  the  incumbent  under  a  prior 
election  will  hold  over  under  the  general  law  providing  that 
officers  shall  hold  until  their  successors  are  elected  and  quali- 
fied.^^ The  statute,  it  is  barely  necessary  to  suggest,  governs, 
and  to  the  statute  recourse  must  be  had  to  ascertain  what  are  the 
particular  rights,  powers  and  duties  of  railway  commissioners, 
but  where  there  is  no  statutory  provision  to  the  contrary  the 
general  rules  of  law  are  of  controlling  influence.^^ 

20  Louisville  &c.  R.  Co.  v.  Rail-  board  of  railroad  commissioners 
road  Com.,  19  Fed.  679.  expressly  provides  that  the  execu- 

21  Eddy  V.  Kincaid,  28  Ore.  537,  tive  council  may  remove  members 
41  Pac.  156;  Badger  v.  United  of  the  board  from  office  and  ap- 
States,  93  U.  S.  599,  23  L.  ed.  991;  point  others  to  fill  their  places 
People  V.  Tilton,  Zl  Cal.  614;  and  does  not  provide  for  assigning 
Mayor  v.  Horn,  2  Harr.  (Del.")  causes  for  the  removal,  the  execu- 
190;  Gosman  v.  State,  106  Ind.  203,  tive  council  may,  at  its  discretion, 
6  N.  E.  349;  State  v.  Harrison,  113  remove  a  commissioner  from  office. 
Ind.  434,  16  N.  E.  384,  3  Am.  St.  The  discretion  so  vested  in  the 
663;  Scott  County  v.  Ring,  29  Minn.  council  can  not  be  controlled  by 
398,  13  N.  W.  181;  State  v.  Kurtze-  the  courts.  State  v.  Mitchell,  50 
born,  78  Mo.  98;  State  v.  Wells,  8  Kans.  289,  ZZ  Pac.  104,  20  L.  R.  A. 
Nev.  105;  Charman  v.  Daniel,  'i  306.  As  to  whether  a  suit  against 
Jones  (N.  Car.)  444;  State  v.  Howe,  the    commission    is    a    suit   against 

25  Ohio  St.  588,  18  Am.  Rep.  321;  the  state,  see  Louisville  &c.  R.  Co. 
citing  State  v.  Simon,  20  Ore.  365,  v.  Burr,  63  Fla.  491,  58  So.  543,  44 

26  Pac.  170.  L.    R.    A.    (N.    S.)    189,    and    cases 

22  Where   the    statute    creating   a  there  reviewed  in  note. 


§  802  RAILROADS  170 

§802  (681).  Qualifications  of  commissioners. — The  leg^isla- 
ture,  within  constitutional  limits,  may  prescribe  the  qualifications 
of  the  members  of  railway  commissions.  It  is  to  the  statute  that 
recourse  must  be  had  to  determine  what  qualifications  arc  made 
requisite.  The  constitutional  principle  that  no  man  can  l)e  a 
judge  in  his  own  case  forbids  a  person  who  has  a  substantial 
and  direct  interest  in  questions  before  the  commission  from  sit- 
ting as  a  member  when  those  questions  are  under  consideration.^^ 
There  is  authority,  however,  to  the  effect  that  the  interest  of  one 
of  the  commissioners  as  a  shipper  of  a  commodity,  on  which  the 
rate  is  reduced,  will  not  invalidate  the  decision  reducing  the 
rate  where  the  vote  of  this  commissioner  was  not  necessary  to 
the  decision.^*  It  has  also  been  held  that  the  fact  that  a  member 
of  the  commission  had  pledged  himself  before  his  election  to 
make  a  certain  rate  will  not  affect  the  validity  of  a  rate  made  in 
accordance  with  this  pledge,  since  the  real  question  on  an  inquiry 
of  this  character  is  solely  as  to  the  reasonableness  of  rates  fixed. -"^ 

§803  (682),  Powers  of  railroad  commissioners — Illustrative 
cases. — .\s  the  powers  of  railroad  commissioners  are  statutory-® 
it  is  not  possible  to  determine  what  effect  a  given  decision  may 
have  in  any  other  state  than  that  in  which  it  is  rendered  except 
when  general  principles  are  involved.  But  while  the  effect  of  a 
given  decision  cannot  be  accurately  ascertained  without  an  ex- 
amination of  the  statute  upon  which  it  is  based,  still,  the  deci- 

23  Dimes   v.   Grand   Junction    &c.  ^4  Southern    Pacific    Co.    v.    Rail- 
Co.,  3    H.    L.    C.   759;    Elliott  Gen.  road  Commissioners,  78  Fed.  236. 
Prac.   §  210.     As  to  the  nature   of  -^  Southern    Pacific    Co.    v.    Rail- 
the   interest  which   will    disqualify,  road  Commissioners,  78  Fed.  236. 
see  Sauls  v.  Freeman,  24  Fla.  209,  4           -'^  And    it   is    held   that   their   au- 
So.  525,  12  Am.  St.  190;  Northamp-  thority    must    affirmatively   appear, 
ton  V.  Smith,  11  Mete.  (Mass.)  390;  Railroad  Com'rs  v.  Oregon  &c.  R. 
Gregory  v.  Cleveland  &c.  R.  Co.,  4  Co.,   17  Ore.  65,   19  Pac.  702,  2  L. 
Ohio  St.  675;  Sjoberg  v.  Nordin,  26  R.  A.  195.     That  railroad  commis- 
Minn.    501,    5    N.    W.    677;    Elliott  sioners  have  such  powers  only  as 
Gen.    Prac.   §  212.     See   also   State  are     expressly    or    impliedly    con- 
V.  Wilson,  121  N.  Car.  425,  28  S.  E.  ferred  on  them  by  statute,  see  State 
555:     and     compare     Woodruff     v.  v.  .Atlantic  &c.  R.  Co.,  51   Fla.  578, 
New    York    &c.    R.    Co.,    59    Conn.  40  So.  875. 
63,  20  Atl.  17. 


171 


STATE  RAILROAD   COMMISSIONERS 


§803 


sions  almost  always  illustrate  some  general  principle  or  enforce 
some  rule  of  statutory  construction.  With  these  prefatory  sug- 
gestions we  direct  attention  to  some  of  the  decided  cases.  It  has 
been  held  that  vvdiere  there  is  statutory  power  to  order  a  reloca- 
tion of  tracks  near  a  station  as  the  public  interest  may  require, 
the  board  has  authority  in  ordering  one  company  to  take  the 
tracks  of  another  to  make  it  a  condition  of  the  taking  of  such 
tracks  that  the  company  taking  the  track  shall  permit  the  com- 
pany from  which  they  are  taken  to  use  its  tracks.-'  The  statutes 
usually  grant  to  the  board  of  commissioners  power  to  order  the 
location  and  relocation  of  stations,-®  and  the  decision  of  the  board 
in  such  matters  cannot  be  overthrown  unless  it  is  affirmatively 


27  Provid'ence  &c.  R.  Co.  v.  Nor- 
wich &c.  R.  Co.,  138  Mass.  277,  22 
Am.  &  Eng.  R.  Cas.  493.  So  com- 
panies have  been  compelled  to 
carry  loaded  cars  from  other  lines 
over  their  own  lines,  Chicago  &c. 
R.  Co.  V.  Iowa,  233  U.  S.  334,  34 
Sup.  Ct.  592,  58  L.  ed.  988.  And  to 
make  physical  connections,  Wis- 
consin &c.  R.  Co.  V.  Jacobson,  179 
U.  S.  287,  21  Sup.  Ct.  115,  45  L. 
ed.  194;  Grand  Trunk  R.  Co.  v. 
Michigan  R.  Com.,  231  U.  S.  457, 
34  Sup.  Ct.  152,  58  L.  ed.  310; 
Washington  v.  Fairchild,  224  U.  S. 
510,  32  Sup.  Ct.  535,  56  L.  ed.  863; 
Pittsburgh  &c.  R.  Co.  v.  Railroad 
Com.,  171  Ind.  189,  86  N.  E.  328; 
note  in  Ann.  Cas.  1917E,  794.  But 
compare  Pacific  Tel.  Co.  v.  Eshle- 
man,  166  Cal.  640,  137  Pac.  1119, 
50  L.  R.  A.  (N.  S.)  652. 

28  State  V.  Railroad  Comrs.,  56 
Conn.  308,  15  Atl.  756;  State  v.  Des 
Moines  &c.  R.  Co.,  84  Iowa  419, 
49  Am.  &  Eng.  R.  Cas.  186;  State 
V.  Kansas  &c.  R.  Co.,  47  Kans.  497, 
28  Pac.  208,  49  Am.  &  Eng.  R.  Cas. 
176;  State  v.  Alabama  &c.  R.  Co., 
67   Miss.   647,   7   So.   502;    State   v. 


Chicago  &c.  R.  Co.,  19  Nebr.  476, 
27  N.  W.  434;  State  v.  Fremont 
&c.  R.  Co.,  22  Nebr.  313,  35  N.  W. 
118,  Z2  Xm.  &  Eng.  R.  Cas.  426; 
Board  v.  Oregon  &c.  R.  Co.,  17 
Ore.  65,  19  Pac.  702,  2  L.  R.  A.  195, 
35  Am.  &  Eng.  R.  Cas.  542;  State 
v.  Chicago  &c.  R.  Co.,  12  S.  Dak. 
305,  81  N.  W.  503,  47  L.  R.  A.  569. 
The  Minnesota  court  has  held  the 
orders  of  the  board  conclusive. 
State  V.  Chicago  &c.  R.  Co.,  38 
Minn.  281,  Z7  N.  W.  782;  Railroad 
&c.  Co.  V.  Railroad  &c.  Com.,  39 
Minn.  231;  State  v.  Minneapolis 
&c.  R.  Co.,  40  Minn.  156,  39  N.  W. 
ISO.  But  in  so  holding  the  court 
was  in  error.  See  State  v.  Chicago 
&c.  R.  Co.,  86  Iowa  304,  53  N.  W. 
?>22>,  53  N.  W.  253;  State  v.  Ala- 
bama &c.  R.  Co.,  68  Miss.  653,  7 
So.  502.  Compare  also  Louisiana 
&c.  Ry.  Co.  V.  State,  85  Ark.  12, 
106  S.  W.  960.  And  the  Alabama 
statute  does  not  give  the  commis- 
sion authority  to  order  a  change 
of  location  of  a  station.  State  v. 
Nashville  &c.  R.  Co.  (Ala.),  39  So. 
984;  Nashville  &c.  R.  Co.  v.  State. 
137  Ala.  439,  34  So.  401. 


§803 


KAILHOADS 


172 


shown  that  it  proceeded  in  violation  of  some  provision  of  the 
constitution  or  the  statute,  or  grossly  abused  the  power  conferred 
upon  it.  Very  important  powers  in  relation  to  the  matter  of 
requiring  railroad  companies  to  construct  and  maintain  crossings 
are  generally  granted  to  the  commissioners.^^  It  is  held  that  juris- 
diction of  applications  to  condemn  lands  may  be  conferred  upon 
railroad  commissioners  in  cases  where  the  land  is  required  for  a 
depot. ^"  Jurisdiction  to  compel  companies  to  resume  or  continue 
operation  of  lines  of  railroad  may  be  conferred  upon  the  commis- 
sioners.^^ But  it  is  held  that  the  commissioners  cannot  make  a 
palpably   unreasonable   requirement   of   a   railroad   company   in 


-^  State  V.  Des  Moines  &c.  R. 
Co.,  84  Iowa  419,  51  N.  W.  38,  49 
Am.  &.  Eng.  R.  Cas.  186;  Smith  v. 
New  Haven  &c.  R.  Co.,  59  Conn. 
203,  22  Atl.  146;  Doolittle  v.  Select- 
men, 59  Conn.  402,  22  Atl.  336; 
New  York  &c.  R.  Company's  Ap- 
peal, 62  Conn.  527,  26  Atl.  122; 
Railroad  Commissioners,  In  re,  83 
Maine  273,  22  Atl.  168;  State  v. 
Shardlow,  43  Minn.  524,  46  N.  W. 
74;  Detroit  &c.  R.  Co.  v.  Probate 
Judge,  63  Mich.  676,  30  N.  W.  598, 
28  Am.  &  Eng.  R.  Cas.  285;  State 
V.  Chicago  &c.  R.  Co.,  29  Nebr. 
412,  45  N.  E.  469.  See  Cambridge 
V.  Railroad  Commissioners,  153 
Mass.  161,  26  N.  E.  241;  Fort  Street 
&c.  Co.  V.  State  &c.  Board,  81 
Mich.  248,  45  N.  W.  973;  Guggen- 
heim V.  Lake  Shore  &c.  R.  Co.,  66 
Mich.  150,  33  N.  W.  161,  32  Am.  & 
Eng.  R.  Cas.  89.  And  to  put  in 
switches  and  interchange  cars 
where  the  track  of  one  company 
crosses  or  intersects  that  of  an- 
other. State  V.  Wrightsville  &c.  R. 
Co.,  104  Ga.  437,  30  S.  E.  891;  Bur- 
lington &c.  R.  Co.  V.  Dey,  82  Iowa 
312,  48  N.  W.  98,  12  L.  R.  A.  436, 
31   Am.   St.  477;   Jacobson  v.  Wis- 


con.sin  &:c.  R.  Co.,  71  Minn.  519,  74 
N.  W.  893,  40  L.  R.  A.  389,  70  Am. 
St.  358.  And  to  establish  reason- 
able rules  and  rates  for  switching. 
Railroad  Com.  v.  Vandalia  R.  Co., 
258  111.  397,  101  N.  E.  600,  Ann. 
Cas.  1914B,  363,  and  cases  cited  in 
note.  An  order  as  to  rates  and 
facilities  is  held  valid  in  a  recent 
case  though  made  in  a  spirit  of  re- 
taliation and  though  it  compelled 
operation  in  part  at  a  loss,  but  in- 
valid in  so  far  as  it  was  unreason- 
able in  requiring  impossible  facili- 
ties as  to  seats.  Puget  Sound  Trac. 
&c.  Co.  V.  Reynolds,  223  Fed.  371. 

3ojager  v.  Dey,  80  Iowa  23,  45 
N.  W.  391,  42  Am.  &  Eng.  R.  Cas. 
683.  And  see  generally  as  to  such 
statutes  giving  the  railroad  com- 
mission power  in  eminent  domain 
cases.  George  v.  Consolidated 
Lighting  Co.,  87  Vt.  411,  89  Atl. 
635,  52  L.  R.  A.  (N.  S.)  850,  and 
cases  cited. 

■■'1  See  Winsford  &c.  Board  v. 
Cheshire  &c.,  L.  R.  24  Q.  B.  D. 
456:  Dickson  v.  Great  Northern  &c. 
R.  Co.,  L.  R.  18  Q.  B.  D.  176.  See 
also  Hocking  Val.  R.  Co.  v.  Public 
Utilities   Com.,  92  Ohio   St.  9,    110 


173 


STATE   RAILROAD  .COMMISSIONERS 


§803 


respect  to  change  of  stations  or  tracks.'-  Commissioners  are 
authorized  in  some  of  the  states  to  make  and  enforce  orders 
requiring  railroad  companies  to  provide  suitable  reception 
rooms^^  and  bulletin  boards^*  at  stations,  to  place  flagmen  at 
crossings,^^  and  to  require  railroad  companies  to  fence  their 
tracks.^^  Authority  conferred  upon  a  board  of  commissioners  to 
regulate  rates  does  not,  however,  empOM^er  it  to  compel  the  open- 
ing of  offices  for  public  accommodation."  But  general  authority 
to  require  all  common  carriers  to  establish  and  maintain  such 
public  service  and  facilities  as  may  be  reasonable  and  just,  and 
over  rates  of  freight  and  passenger  tariffs,  has  been  held  to 
authorize  the  regulation  of  the  manner  of  using  mileage 
tickets.^^ 


N.  E.  521,  Ami.  Cas.  1917B,  1154 
and  note.  And  compare  State  ex 
rel.  V.  Public  Service  Comraission, 
270  Mo.  429,  192  S.  W.  958,  198 
S.  W.  872;  State  ex  rel.  Corpora- 
tion Com.  V.  Seaboard  Air  Line 
Ry.  Co.,  173  N.  Car.  413,  92  S.  E. 
150;  State  Public  Utilities  Com.  ex. 
rel.  Cameron  v.  Lake  Erie  &  W.  R. 
Co.,  277  III.  574,  115  N.  E.  519. 

32  State  V.  Des  Moines  &c.  R. 
Co.,  87  Iowa  644,  54  N.  W.  461; 
State  V.  Chicago  &c.  R.  Co.,  86 
Iowa  304,  53  N.  W.  253.  See  also 
Louisiana  &c.  Ry.  Co.  v.  State,  85 
Ark.  12,  106  S.  W.  960;  Kansas 
City  So.  R.  Co.  v.  Kaw  Valley 
Drainage  Dist.,  233  U.  S.  75,  34 
Sup.  Ct.  564,  58  L.  ed.  857. 

33  Stone  V.  Yazoo  &c.  R.  Co.,  62 
Miss.  607,  52  Am.  Rep.  193;  Rail- 
road Com.  Cases,  116  U.  S.  307.  6 
Sup.  Ct.  334,  348,  349,  388,  391,  1191, 
29  L.  ed.  638. 

34  Stone  V.  Yazoo  &c.  R.  Co.,  62 
Miss.  607,  52  Am.  Rep.  193. 

35  Guggenheim  v.  Lake  Shore  &c. 
R.  Co.,  66  Mich.  150,  33  N.  W.  161, 
32  Am.  &  Eng.  R.  Cas.  89. 


3G  Davidson  v.  Michigan  &c.  R. 
Co.,  49  Mich.  428,  13  N.  W.  804,  13 
Am.  &  Eng.  R.  Cas.  650.  See  also 
as  to  various  other  orders:  State 
Public  Utilities  Com.  v.  Atchison, 
T.  &  S.  F.  Ry.  Co,,  279  III.  194,  116 
N.  E.  696  (detention  and  disinfec- 
tion of  cars);  Hewitt  Logging  Co. 
V.  Northern  Pac.  R.  Co.,  97  Wash. 
597,  166  Pac.  1153;  Chicago  &  N. 
W.  Ry.  Co.  et  al.  v.  Dougherty,  39 
S.  Dak.  147,  163  N.  W.  715;  State 
V.  Chicago,  M.  &  St.  P.  Ry.  Co.  37 
N.  Dak.  98,  163  N.  W.  730;  Railroad 
Com.  of  Alabama  v.  St.  Louis  & 
S.  F.  R.  Co.,  195  Ala.  527,  70  So. 
645;  cases  and  notes  in  Ann.  Cas. 
1916C,  420,  1916D,  1034,  1153: 
1916E,  299,  1917A,  973,  1917C,  50, 
L.  R.  A.  1916E,  748,  L.  R.  A. 
1918E,  342. 

37  State  V.  Western  Union  Tel. 
Co.,  113  N.  Car.  213,  18  S.  E.  389, 
22  L.  R.  A.  570. 

38  Railroad  Com.  v.  Louisville 
&c.  R.  Co.,  140  Ga.  817,  80  S.  E. 
327,  Ann.  Cas.  1915A.  1018. 


\ 


§804 


RAILROADS 


174 


§804  (682a).  Powers  of  commissioners — Other  cases. — We 
have  not  enumerated,  nor  shall  we  attempt  to  enumerate,  all  the 
powers  granted  to  railroad  commissioners  under  the  various 
statutes.  But  in  the  last  preceding  section,  and  others  which 
follow,  are  mentioned  those  most  often  granted.  A  few  others, 
however,  will  be  referred  to  in  this  section.  In  a  very  recent 
case  it  is  held  that  the  state  railroad  commission,  under  the 
North  Carolina  statute,  has  authority  to  require  a  railroad  com- 
pany to  place  track  scales  at  points  where  the  business  justifies 
the  same.^^  And  in  another  case  the  same  court  held  that  the 
commission  had  power  to  require  a  railroad  company  to  have  a 
train  arrive  at  a  certain  station  at  a  certain  time,  so  as  to  connect 
with  a  train  on  another  road.^°  In  a  Louisiana  case  the  general 
proposition  is  laid  down  that  the  authority  of  the  commissioners 
is  not  limited  to  public  safety  or  health,  but  extends  also  to  mat- 
ters concerning  the  public  comfort  and  convenience,  and  they 
may  thus  require  a  depot  to  be  erected  at  a  place  where  the 


39  North  Carolina  &c.  Comn.  v. 
Atlantic  Coast  Line  R.  Co.,  139  N. 
Car.  126,  51  S.  E.  793.  But  under 
such  a  statute  it  has  been  held  that 
the  commission  may  refuse  if  such 
scales  are  not  reasonably  necessary, 
and  that  the  burden  is  upon  the 
shipper  petitioning  for  them  to 
show  such  reasonable  necessity. 
New  Mexico  Wool  Growers'  Assn. 
V.  Atchison  &c.  Ry.  Co.,  20  N.  Mex. 
33,  145  Pac.  1077.  See  also  State 
V.  Fairchild,  224  U.  S.  510,  32  Sup. 
Ct.  538,  56  L.  ed.  863. 

•*'^  North  Carolina  &c.  Comn.  v. 
Atlantic  Coast  Line  R.  Co..  137  N. 
Car.  1,  49  S.  E.  191,  affirmed  in  27 
Sup.  Ct.  585.  The  court  cited, 
among  other  cases  as  more  or  less 
in  point,  the  following:  Cantrell 
V.  Railroad,  176  111.  512,  52  N.  E. 
292,  35  L.  R.  A.  656;  Gladson  v. 
Minnesota,  166  U.  S.  430,  17  Sup. 
Ct.   627,  628,  41   L.   ed.   1065:   Wis- 


consin V.  Jacobson,  179  U.  S.  287, 
297,  21  Sup.  Ct.  115,  45  L.  ed.  194; 
Morgan's  &c.  R.  Co.  v.  Louisiana, 
109  La.  Ann.  247,  33  So.  214.  See 
also  Commonwealth  v.  Louisville 
&c.  R.  Co.,  27  Ky.  497,  85  S.  W. 
712.  The  North  Carolina  statute  is 
very  broad,  however,  and  the  North 
Carolina  court  has  been  inclined  to 
go  at  least  as  far  as  the  law  justi- 
fies upon  this  general  subject  in 
several  cases.  Orders  of  the  com- 
mission to  furnish  adequate  serv- 
ice in  various  respects  have  been 
upheld  in  many  cases,  and  the 
commission  has  very  broad  powers 
over  the  subject.  See  Hocking  Val. 
R.  Co.  V.  Public  Utilities  Com.,  92 
Ohio  St.  9,  110  N.  E.  521,  Ann.  Cas. 
1917B,  1154  and  note  reviewing 
cases  and  referring  to  other  notes. 
Compare  also  State  v.  Great  North- 
ern Ry.  Co.,  130  Minn.  57.  153  N. 
W.  247.  Ann.  Cas.  1917B,  1201  and 


175  STATE  RAILROAD  COMMISSIONERS  §  804 

public  convenience  demands  it,  even  though  the  business  may 
not  be  remunerative  to  the  company  at  such  place.^^  The  same 
court  has  also  held  that  the  commission  has  power  to  prevent 
the  abandonment  of  a  spur  in  the  use  of  which  the  public  are 
interested.*-  But  it  is  held,  under  the  Alabama  statute,  the  com- 
mission had  no  authority  to  order  a  railroad  company  to  locate 
a  station  at  a  certain  point,  and  what  kind  of  a  depot  to  build." 
In  South  Dakota  the  statute  seems  to  authorize  the  commission 
to  compel  companies  connecting  by  intersection  to  so  unite  and 
connect  their  tracks  as  to  permit  the  transfer  of  cars  from  the 
track  of  one  to  that  of  the  other,  but  it  is  held  that  the  order 
must  not  be  too  indefinite,  and  that  in  an  action  by  the  commis- 
sion to  enforce  it  the  complaint  must  allege  the  performance  of 
every  condition  precedent  in  the  proceeding  before  the  commis- 
sion.'** The  equal  protection  of  the  laws  is  not  denied  by  a  stat- 
ute prohibiting  companies  in  the  state  from  charging  more  for 
a  shorter  than  for  a  longer  haul  except  by  permission  of  the  rail- 
road commissioners  after  special  investigation,  nor  is  the  guar- 
anty of  due  process  of  law  violated  by  such  a  statute  giving  the 
commission  power  to  make  such  exceptions  after  special  investi- 
gation, and  a  possible  interference  with  interstate  commerce 
under  such  a  statute  is  too  remote  and  indirect  to  be  regarded  as 
an   unconstitutional  interference  therewith.*^    And  so,  where  a 

note    (compelling  running  of   Sun-  sas  City  &c.   R.  Co.,  Ill   La.  Ann. 

day  trains);  In  re  Minneapolis  &c.  133,  35  So.  487.     See  also  St.  Louis 

R.  Co.,  30  N.  Dak.  221,  152  N.  W.  &c.  R.  Co.  v.  State,  99  Ark.  1.  136 

513,  Ann.  Cas.  1917B,  1205  and  note  S.    W.    938;    Corporation    Com.    v. 

(as   to   when    running   of   daily   or  Southern   R.   Co.,   153  N.   Car.  559, 

additional     trains     may     be     com-  69  S.  E.  621;  State  v.  Public  Serv- 

pelled).  ice    Com.,   11  Wash.   529,    137   Pac. 

41  Morgan's    &c.    R.    Co.   v.    Rail-  1057. 

road    Com.,    109    La.    Ann.    247,   7>Z  -is  Nashville   &c.   R.   Co.  v.   State, 

So.  214.     See  also  St.  Louis  &c.  R.  137  Ala.  439,  34  So.  401. 

Co.  V.  State,  97  Ark.  473,  134  S.  W.  ^^  State   v.    Chicago   &c.    R.    Co., 

970;  North  Carolina  Corp.  Com.  v.  16  S.  Dak.  517,  94  N.  W.  406. 

State,    151    N.    Car.    447,    (i(i    S.    E.  4.-, -Louisville   &c.   R.   Co.  v.   Ken- 

427;     Minneapolis     &c.    R.     Co.    v.  tucky.  183  U.  S.  503,  22  Sup.  Ct.  95, 

Railroad    Com.,    136   Wis.    146.    116  46  L.  ed.  298.     See  also  Minneapo- 

N.  W.  905,  17  L.  R.  A.  (N.  S.)  821,  lis    &c.    R.    Co.   v.    Minnesota.    193 

and  cases  cited  in  note.  U.  S.  53.  24  Sup.  Ct.  396,  48  L.  R. 

42  Railroad   Commission   v.   Kan-  A.  614. 


§  805  RAILROADS  176 

railroad  company  has  been  notified,  has  appeared,  and  has  con- 
tested the  matter,  it  has  been  held  that  the  company  cannot 
afterwards  urge  that  an  order  of  the  commission  requiring  it  to 
stop  certain  trains  at  a  station  deprived  it  of  its  property  without 
due  process  of  law.**^  An  order  of  a  railroad  commission  com- 
pelling through  mail  trains  to  stop  at  county  seat  points  has  been 
held  an  interference  with  interstate  commerce  where  it  appeared 
that  the  county  seats  interested  were  supplied  with  proper  and 
adequate  railway  passenger  facilities  by  means  of  other  trains.*^ 
The  Kansas  statute,  giving  the  commissioners  power  to  hear 
and  determine  an  application  of  a  railroad  company  to  cross  the 
tracks  of  another  company,  is  held  inapplicable  to  a  case  where 
the  applicant  seeks  to  cross  the  track  of  a  company  whose  line 
is  operated  entirely  by  electricity .*«  The  Vermont  statute  author- 
izes the  commission  to  investigate  railroad  accidents  on  notice, 
and  to  direct  changes  in  the  manner  of  operating  the  road  where 
the  evidence  shows  the  necessity  therefor,  but  the  hearing  to 
determine  this  matter  cannot  go  beyond  the  grounds  set  out  in 
the  notice  to  the  railroad  company .^^  The  railroad  commissioners 
of  Florida  have  been  held  without  power  to  require  a  railroad 
company  to  transport  freight  from  any  point  on  its  own  line 
within  the  state  to  a  destination  on  a  connecting  line,  where  it 
did  not  appear  that  it  held  itself  out  to  the  public  to  perform 
such  services.^" 

§805  (683).  Jurisdiction  of  railroad  commissioners. — Aboard 
of  railroad  commissioners  is,  as  we  have  said,  a  tribunal  invested 
with  quasi  judicial  power,  so  that  it  is  not  improper  to  apply  to  it 
the  term  jurisdiction.    In  ascertaining  the  jurisdiction  of  such  a 

*8  Railroad  Commissioners  v.  At-  road  Commissioners.  7i  Kans.  168, 

lantic    &c.    R.    Co.,   71    S.    Car.    130,  84  Pac.  755. 

50  S.  E.  641.  ^^  Rutland   R.    Co.,   In   re,   79   Vt. 

47  Mississippi    Railroad    Commis-  53,  64  Atl.  233. 

sion  V.  IllinTDis  Cent.  R.  Co.,  203  5°  State  v.  Louisville  &c.  R.  Co., 
U.  S.  335,  27  Sup.  Ct.  90,  51  L.  ed.  51  Fla.  311,  40  So.  885.  See  also 
209.  See  also  post,  §  2543,  and  com-  Northern  Pac.  R.  Co.  v.  North  Da- 
pare  Hutchison  V.  Southern  R.  Co.,  kota,  236  U.  S.  585,  35  Sup.  Ct.  429, 
140  N.  Car.  123,  52  S.  E.  263.  59  L.  ed.  735.  Ann.  Cas.  1916A,  1. 

48  Kansas  City  &c.  R.  Co.  v.  Rail- 


177 


STATE  RAILROAD   COMMISSIONERS 


§805 


tribunal  the  statute  creating  it  must  always,  it  is  obvious,  be 
consulted,  since  the  only  jurisdiction  it  possesses  is  such  as  the 
statute  confers.^^  We  suppose  that  the  ordinary  rules  which 
govern  quasi  judicial  tribunals  created  by  statute  and  in- 
vested with  naked  statutory  powers  govern  boards  of  rail- 
road commissioners,  and  that  nothing  can  be  intended  to  be 
within  their  jurisdiction  which  is  not  placed  there  by  the 
statute.  It  is  not  necessary,  as  we  believe,  that  the  statute 
should  expressly  and  explicitly  define  the  jurisdiction  of  the 
commissioners,  but  it  is  sufficient  if  jurisdiction  is  conferred 
in  general  terms.  If  jurisdiction  over  a  general  subject  is 
conferred,  then  authority  over  branches  and  details  of  that 
subject  is  conferred  by  necessary  implication.  Statutes  cre- 
ating railroad  commissions  are  to  be  construed  according  to  the 
general  rules  laid  down  for  the  construction  of  statutes,  and  the 
cardinal  rule  that  the  intention  of  the  legislature  is  to  be  sought 
and  enforced  prevails  in  cases  where  such  statutes  are  under 
consideration.^-   The  courts  will  not,  if  their  assistance  is  prop- 


si  Railroad  Comrs.  v.  Oregon  &c. 
R.  Co.,  17  Ore.  65,  19  Pac.  702,  2 
L.  R.  A.  195. 

52  This  general  rule  was  applied 
to  a  statute,  creating  a  board  of 
railroad  commissioners  by  the  su- 
preme court  of  Maine  in  Canadian 
Pacific  R.  Co.  In  re,  87  Maine  247, 
32  Atl.  863.  In  the  course  of  the 
opinion  there  given  it  was  said: 
"To  place  all  railroad  crossings 
within  the  limits  of  the  state  un- 
der the  control  of  the  railroad  com- 
missioners has  manifestly  been  the 
paramount  object  of  the  legislation 
on  this  subject  since  the  enactment 
of  1878.  The  several  provisions  in 
regard  to  the  right  of  application, 
and  the  apportionment  of  the  ex- 
pense, enacted  in  different  years, 
are  of  a  subordinate  character,  and 
of  secondary  importance.  They 
are  not  all  conditions  precedent  to 


the  jurisdiction  of  the  railroad 
commissioners  in  unincorporated 
places.  The  fact  that  all  the  pro- 
visions of  the  statute  respecting 
the  right  of  application,  and  the 
adjustment  of  the  expense  in  the 
case  of  cities  and  towns,  are  not 
also  applicable  to  unincorporated 
places,  can  not  take  away  the 
jurisdiction  of  the  railroad  com- 
missioners over  the  latter  while 
there  is  an  express  provision,  ap- 
plicable to  all  crossings,  authoriz- 
ing an  application  by  the  railroad 
company,  and  also  placing  upon 
the  company  the  burden  of  the 
expense.  In  the  case  of  cities  or 
towns,  either  the  municipal  officers 
or  the  railroad  companies  may  in- 
voke the  jurisdiction  of  the  rail- 
road commissioners;  and  thereupon 
the  expense  of  building  the  way 
within    the    limits    of    the    railroad 


§806 


RAILROADS 


178 


erly  invoked,  permit  a  railroad  commission  to  deal  with  matters 
not  within  its  jurisdiction,  for  such  tribunals  are  not  above  the 
law  nor  beyond  judicial  control."  Where,  however,  the  matter 
is  one  entirely  within  the  jurisdiction  of  the  commission,  and  it 
is  invested  with  discretionary  powers  in  relation  to  the  subject, 
the  courts  will  not  control  the  exercise  of  such  powers  although 
they  will  interfere  where  there  is  a  clear  abuse  of  those  powers 
resulting  in  injury  to  the  complainant.  It  has  been  held  that  a 
statute  giving  railroad  commissioners  supervision  over  railroads 
operated  by  steam  impliedly  denies  them  power  over  railroads 
operated  only  by  electricity.^* 

§806  (684).  Jurisdiction  of  commission  not  extended  by  im- 
plication— General  rule. — The  general  rule  is  that  the  jurisdiction 
of  a  statutory  tribunal  will  not  be  extended  by  implication  except 
in  cases  where  the  implication  necessarily  arises  from  a  consid- 
eration of  the  objects  or  language  of  the  statute. ^^   The  rule  that. 


may  all  be  imposed  on  the  railroad 
compaii)',  or  be  apportioned  be- 
tween the  railroad  compan}'-  and 
the  town  as  tlie  commissioners 
may  determine.  But  with  respect 
to  ways  in  unincorporated  places, 
where  there  are  no  municipal  offi- 
cers, the  application  can  only  be 
made  by  the  parties  owning  or 
operating  the  railroad;  and  inas- 
much as  there  is  no  provision  for 
the  payment  or  apportionment  of 
the  expense  applicable  to  such  a 
case,  except  that  which  places  this 
burden  on  the  railroad  company, 
'the  expense  of  building  and  main- 
taining so  much  thereof  as  is 
within  the  limits  of  such  railroad 
shall  be  borne  by  such  rai?road 
company.'  " 

^^  Toomer  v.  London  &c.  R.  Co., 
L.  R.  2  Exch.  Div.  450;  Southeast- 
ern R.  Co.  v.  Railway  Com.,  L.  R. 
6  Q.  P..  D.  586.     See  Hall  v.  Lon- 


don .«cc.  Co.,  L.  R.  17  Q.  B.  D.  230. 
Tn  Georgia  R.  Co.  v.  Smith,  70  Ga. 
(')Q4.  the  court  said:  "While  we 
hold  the  act  of  October  14.  1879. 
constitutional  and  the  orders  of 
the  commission  valid  and  binding, 
yet  we  are  not  to  be  understood  as 
holding  that  their  powers  are  un- 
limited or  beyond  the  legal  control 
by  the  proper  authorities  of  the 
state.  On  the  contrary,  we  hold 
that  the  powers  which  have  been 
conferred  upon  them  are  to  be  ex- 
ercised within  the  legal  and  con- 
stitutional limitations  and  in  such 
a  way  as  not  to  invade  the  rights 
of  others." 

^4  Kansas  City  dtc.  Electric  R. 
Co.  V.  Railroad  Com.,  73  Kans.  168, 
84  Pac.  755. 

55  Beekman  Street,  Matter  of,  20 
Johns.  (N.  Y.)  269:  Thatcher  v. 
Powell,  6  Wheat.  (U.  S.)  119,  5  L. 
ed.  221;  School  Inspectors  v.  Peo- 


17!) 


STATE  RAILROAD  COMMISSIONERS 


§807 


where  new  rights  are  created  and  new  remedies  prescribed,  the 
construction  of  the  statute  creating  such  rights  and  prescribing" 
such  remedies  shall  be  strict,  is  an  influential  one.''*^  The  Supreme 
Court  of  Oregon  adjudged  that  the  jurisdiction  of  the  commis- 
sion could  not  be  extended  by  implication,  but  must  be  confined 
to  the  cases  clearly  placed  within  its  jurisdiction  by  the  statute. ^^ 

§  807   (685).     Incidental  powers  of  a  railroad  commission. — 

A  railroad  commission,  although  it  is  a  statutory  tril)unal,  wath 
naked  statutor}'  powers,  necessarily  possesses  some  incidental 
or  implied  powers.  The  implied  powers  are  such  as  by  necessary 
implication  result  from  the  principal  powers  granted  by  the 
statute  creating  the  commission.  It  is  held  in  accordance  with 
this  general  principle  that  the  power  to  make  rates  carries,  by 
necessary  implication,  the  power  to  ascertain  what  corporation 


pie,  20  111.  525;  Keitler  v.  State,  4 
Greene  (Iowa)  291;  Shivers  v.  Wil- 
son, 5  Harr.  &  John.  (Md.)  130,  9 
Am.  Dec.  497;  Kansas  City  &c.  R. 
Co.  V.  Campbell,  62  Mo.  585;  Beebe 
V.  Scheidt,  13  Ohio  St.  406;  Thomp- 
son V.  Cox,  8  Jones  L.  (N.  Car.) 
311;  Pringle  v.  Carter,  1  Hill  L. 
(S.  Car.)  53;  Ryan  v.  Common- 
wealth, 80  Va.  385.  See  authorities 
cited  Elliott  Gen.  Prac.  §  256,  note. 
See  also  Traders  &c.  Un.  v.  Phila- 
delphia &c.  R.  Co.,  1  Int.  Com. 
Rep.  371;  Sprigg  v.  Baltimore  &c. 
R.  Co.,  8  Int.  Com.  Rep.  443; 
Transportation  of  Fruit,  Re,  10 
Int.  Com.  Rep.  360. 

^6  Keller  v.  Corpus  Christi,  50 
Tex.  614.  32  Am.  Rep.  613;  Walker 
V.  Burt,  57  Ga.  20;  Willard  v.  Fra- 
lick,  31  Mich.  431;  Staples  v.  Fox, 
45  Miss.  667;  Dent  v.  Ross,  52 
Miss.  188;  Bloom  v.  Burdick,  1  Hill 
(N.  Y.)  130,  37  Am.  Dec.  299;  An- 
ness  V.  Providence.  13  R.  I.  17; 
Monk  V.  Jenkins,  2  Hill  Ch.  (S. 
Car.)  9. 


s"  Board  v.  Oregon  &c.  Co.,  17 
Ore.  65,  19  Pac.  702,  2  L.  R.  A. 
195.  It  was  said  by  the  court  that; 
"It  has  for  a  very  long  time  been 
considered  the  safer  and  better  rule, 
in  determining  questions  of  juris- 
diction of  boards  and  officers  ex- 
ercising powers  delegated  to  them 
by  the  legislature,  to  hold  that 
their  authority  must  affirmatively 
appear  from  the  commission  under 
which  they  claim  to  act.  There  is 
too  strong  a  desire  in  the  human 
heart  to  exercise  authority,  and  too 
much  of  a  disposition  on  the  part 
of  those  intrusted  with  it  to  extend 
it  beyond  the  design  for  which,  and 
the  scope  within  which,  it  was  in- 
tended it  should  be  exercised,  to 
leave  the  question  of  its  extent  to 
inference.  Should  it  be  so  left 
serious  disturbances  might  arise, 
involving  a  conflict  of  jurisdiction, 
which  would  be  highly  detrimental 
to  the  community.  It  is  not,  it 
seems  to  me,  requiring  too  much 
of    the    legislative    branch    of    the 


808 


RAILROADS 


180 


is  in  control  of  the  linc."'^  So,  where  general  powers  are  given, 
they  may  sometimes  be  granted  in  terms  broad  enough  to  include 
other  powers  than  those  specifically  enumerated.^^ 

§808  (686).  Right  of  railroad  companies  to  a  hearing. — The 
fundamental  rule  is  that  there  is  not  due  process  of  law  unless  a 
party  is  given  an  opportunity  to  be  heard  before  he  is  subjected 
to  a  burden  or  deprived  of  property  rights,  and  this  principle 
applies  to  the  proceedings  of  a  state  railroad  commission.  The 
right  of  a  railroad  company  to  receive  reasonably  remunerative 


government  to  exact  that  when  it 
creates  a  commission  and  clothes 
it  with  important  functions,  it  shall 
define  and  specify  the  authority 
given  it  so  clearly  that  no  doubt 
can  reasonably  arise  in  the  mind 
of  the  public  as  to  its  extent."  See 
generally  Railroad  Comrs.,  In  re, 
83  Maine  273,  22  Atl.  168;  Cam- 
bridge V.  Railroad  Comrs.,  153 
Mass.  161,  26  N.  E.  241.  And  there 
are  many  other  cases  to  the  effect 
that  the  powers  of  a  railroad  com- 
mission are  statutory  and  cannot 
be  extended  by  implication  bej^ond 
what  may  be  necessary  for  their 
just  and  reasonable  execution. 
Northern  Cent.  R.  Co.  v.  Laird. 
124  Md.  141,  91  Atl.  768,  Ann.  Cas. 
1916D,  1030,  and  cases  there  cited; 
New  York  &c.  R.  Co.  v.  Willcox, 
200  N.  Y.  423,  94  N.  E.  212. 

58  State  v.  Western  Union  &c. 
Co..  113  N.  Car.  213,  18  S.  E.  389, 
22  L.  R.  A.  570:  State  v.  Mason 
City  &c.  R.  Co.,  85  Iowa  516,  52 
N.  W.  490.  In  the  case  first  cited 
tlie  court  held,  citing  Mayo  v. 
Western  &c.  Co.,  112  N.  Car.  342. 
16  S.  E.  1006;  and  Atlantic  Express 
Co.  V.  Wilmington  &c.  R.  Co.,  Ill 
N.  Car.  463,  16  S.  E.  393,  18  L.  R. 
A.   393,   32   Am.    St.   805;   that   the 


commission  is  a  court,  but  we  very 
much  doubt  the  soundness  of  this 
conclusion.  We  do  not  believe  that 
ministerial  and  strictly  judicial  du- 
ties can  be  conferred  upon  a  single 
tribunal,  nor  do  we  believe  that  the 
legislature  can  make  such  a  board 
or  body  of  officers  as  a  railroad 
commission  a  court  of  record,  al- 
though it  may  confer  upon  such 
a  board,  as  upon  any  board,  quasi 
judicial  powers.  See,  ante,  §  798. 
As  to  power  to  investigate  and  re- 
quire information  generally,  see 
Railroad  Commission  cases,  116  U. 
S.  307,  6  Sup.  Ct.  334,  348,  349,  388, 
391,  1191,  29  L.  ed.  636;  Chicago 
&c.  R.  Co.  v.  Dey,  38  Fed.  656; 
Atlantic  Exp.  Co.  v.  Wilmington 
&c.  R.  Co.,  Ill  N.  Car.  463,  16  S.  E. 
393,  18  L.  R.  A.  393,  32  Am.  St. 
805.  But  compare  State  v.  United 
States  Express  Co.,  81  ]\Iinn.  87, 
83  N.  W.  465,  50  L.  R.  A.  607,  83 
Am.  St.  366. 

''^  State  v.  Atlantic  Coast  Line  R. 
Co.,  61  Fla.  799,  54  So.  900;  Com- 
monwealth v.  Louisville  &c.  R.  Co., 
140  Ga.  817,  80  S.  E.  327,  Ann.  Cas. 
1915A,  1018  (regulation  of  manner 
of  using  mileage  tickets  under  gen- 
eral power). 


181  STATE   RAILROAD   COMMISSIONERS  §  809 

compensation  lor  carrying  property  and  passengers  is  a  property 
right  of  which  it  cannot  be  deprived,  and  hence  it  is  entitled  to  a 
hearing  upon  the  question  whether  rates  fixed  by  the  commission 
are  reasonable.  If  there  is  no  opportunity  for  a  hearing  before 
the  final  decision  of  that  question  there  is  not  due  process  of 
law.°°  The  legislature  may  fix  the  rate  without  a  hearing  before 
it,  but  it  cannot  take  away  the  right  to  have  the  courts  determine 
the  reasonableness  of  the  rate.^^ 

§809  (687).     Orders    of   commissioners   not   contracts. — The 

orders  of  a  board  of  railroad  commissioners  are  not  contracts 
within  the  meaning  of  the  provisions  of  the  federal  constitution 
prohibiting  the  states  from  enacting  laws  impairing  the  obli- 
gation of  a  contract.  In  accordance  with  the  doctrine  stated  it 
was  held  by  the  Supreme  Court  of  the  United  States  that  the 
approval  of  the  board  of  commissioners  of  the  application  of  a 
railroad  company  to  discontinue  a  station  did  not  constitute  a 
contract,  although  the  statute  authorized  the  company  to  dis- 
continue stations  in  cases  where  the  board  directed  it.^^  Where, 
however,  the  legislature  authorizes  the  board  of  commissioners 
to  enter  into  a  contract  with  a  railroad  company,  and  a  contract 
is  entered  into,  a  consideration  being  yielded  by  the  company, 
the  state  cannot  by  a  subsequent  statute  impair  the  obligation 
of  the  contract.  The  state  may,  it  seems  clear,  authorize  a  board 
of  commissioners  to  make  contracts,  but  by  simply  authorizing 

60  Chicago    &c.    R.    Co.    v.    State,  196.     See  also  State  v.  Chicago  &c. 

134  U.  S.  418,  10  Sup.   Ct.  462,  33  R.  Co.,  16  S.  Dak.  517,  94  N.  W. 

L.  ed.  970;  reversing  State  v.  Chi-  406;    Wadley    Southern    R.    Co.    v. 

cago  &c.  R.  Co.,  38  Minn.  281,  37  Georgia,  235  U.  S.  651,  35  Sup.  Ct. 

N.  W.  782;   citing  Stone   v.   Farm-  214,  217,  59  L.  ed.  405,  and  nunier- 

ers'   Loan   &c.    Co.,   116  U.   S.  307,  ous  cases  cited  in  opinion. 

6  Sup.  Ct.  334,  388,  1191,  29  L.  ed.  ei  state  v.  Maine  Cent.  R.  Co.,  77 

636;    Minneapolis    &c.    R.    Co.    v.  N.  H.  425,  92  Atl.  837. 

State,    134   U.    S.   467,    10   Sup.   Ct.  ^2  New     Haven     &c.     R.     Co.    v. 

473,  33  L.  ed.  985;  Chicago  &c.  R.  Hammersley,  104  U.  S.  1,  26  L.  ed. 

Co.  V.  State,  134  U.  S.  418,  10  Sup.  629,    2   Am.    &    Eng.    R.    Cas.    418. 

Ct.    702,    33    L.    ed.    970;    reversing  Compare  also  Minneapolis  &c.  Ry. 

State  v.  Minneapolis  &c.  R.  Co.,  40  Co.  v.  Menasha  &c.  Co.,  159  Wis. 

Minn.  156,  41  N.  W.  465;  Richmond  130,  150  N.  W.  411. 
&c.    R.    Co.    v.    Trammel,    53    Fed. 


§810 


RAILROADS 


182 


a  board  to  make  orders  regulating  charges  for  transporting 
freight  and  passengers,  or  regulating  the  operation  of  the  road, 
the  legislature  does  not  empower  the  board  to  enter  into  con- 
tracts with  railroad  companies. 

§  810  (688).  Certificates  of  commissioners  that  rates  are  rea- 
sonable— Effect  of. — It  has  been  held  that  the  provisions  of  a 
statute  making  the  certificate  of  the  commissioners  prima  facie 
evidence  that  the  maximum  rate  fixed  l)y  them  is  reasonable 
are  valid. '^'^  It  was  also  held  in  the  case  referred  to  that,  as  the 
statute  related  to  matters  of  procedure,  it  took  effect  immediately 
and  governed  pending  cases.     But,  as  the  authorities  referred  to 


63  Chicago  &c.  Co.  v.  Jones,  li}9 
111.  361,  24  L.  R.  A.  141,  146,  Z7 
N.  E.  247.  In  the  course  of  the 
opinion  the  court  said:  "It  is  ar- 
gued that  the  provision  of  the  stat- 
ute making  the  schedule  of  the 
commissioners  prima  facie  evidence 
that  the  rates  therein  fixed  are  rea- 
sonable maximum  rates  of  charges 
is  unconstitutional  and  void,  not 
only  as  depriving  the  carriers  of 
their  property  without  due  process 
of  law,  but  as  infringing  upon  the 
right  of  trial  by  jury.  We  do  not 
think  that  this  objection  should  be 
sustained.  In  the  first  place  the 
act  does  not  deprive  the  rail- 
road corporations  of  the  right  to 
have  a  judicial  determination  of 
the  reasonableness  of  the  rates,  if 
they  are  not  satisfied  with  the 
schedule  made  by  the  commission. 
The  courts  are  open  to  them  for  a 
review  of  the  acts  of  the  commis- 
sioners in  fixing  the  rates  of 
charges.  In  the  next  place,  the 
provision  is  an  exercise  by  the 
legislature  of  its  undoubted  power 
to  prescribe  the  rules  of  evidence. 
Commonwealth      v.      Williams,      6 


Gray  (Mass.)  1;  State  v.  Hurley, 
54  Maine  562.  Such  provisions 
are  not  unusual.  Cases  have 
arisen  in  this  state  under  a  stat- 
ute making  the  fact  of  injury 
caused  by  sparks  from  a  loco- 
motive passing  along  the  road 
prima  facie  evidence  of  negligence, 
and  no  question  has  ever  been 
raised  as  to  the  validity  of  the 
statute.  Pittsburgh  &c.  R.  Co.  v. 
Campbell,  86  111.  443;  St.  Louis  &c. 
R.  Co.  V.  Funk,  85  111.  460;  Toledo 
&c.  R.  Co.  V.  Larmon,  67  111.  68; 
Rockford  &c.  Co.  v.  Rogers,  62  III. 
346;  Chicago  &c.  R.  Co.  v.  Clam- 
pit,  62,  111.  95;  Chicago  &c.  R.  Co. 
V.  Quaintance.  58  111.  389.  Acts 
making  tax  deeds  prima  facie  evi- 
dence of  the  regularity  of  the  pro- 
ceedings antecedent  to  the  deed 
have  been  held  to  be  valid.  Hand 
V.  Ballou,  12  N.  Y.  541;  Dela- 
plaine  v.  Cook,  8  Wis.  44;  Allen 
V.  Armstrong,  16  Iowa  508;  Wright 
v.  Dunham,  13  Mich.  414;  Gage 
V.  Caraher,  125  111.  447.  See 
also  Williams  v.  German  Mut.  F. 
Ins.  Co.,  68  111.  387.  Cases  referred 
to    by    counsel,    which    involve    the 


183 


STATE  RAILROAD  COMMISSIONERS 


§811 


in  the  preceding  section  show,  the  legislature  cannot  confer  upon 
the  commission  power  to  finally  fix  the  charges  to  be  made  for 
carrying  freight  and  passengers  without  giving  the  parties  a 
right  to  be  heard.*^* 

§811  (689).  Regulation  of  charges  for  transporting  property 
and  passengers. — The  field  in  which  the  power  of  railroad  com- 
missioners is  best  displayed  and  most  strongly  developed  is  that 
of  regulating  charges  of  railroad  companies  in  their  capacity  of 
common  carriers.  Over  the  matter  of  regulating  charges  for 
the   transportation   of   passengers   and  property   the   powers   of 


validity  of  acts  providing  for  ref- 
erences to  auditors  or  referees,  and 
making  the  finding  of  facts  by 
them  in  their  reports  prima  facie 
evidence  of  the  facts  in  trials  be- 
fore juries,  will  be  found  to  be 
clearly  distinguishable  from  the 
case  at  bar.  The  supreme  court  of 
Iowa  has  decided  that  a  provision 
making  the  schedule  of  the  com- 
mission prima  facie  evidence  of  the 
reasonableness  of  the  rates  of 
charges,  as  contained  in  the  statute 
of  that  state  similar  to  the  said  act 
of  1873,  was  not  obnoxious  to  the 
objections  here  urged  against  it, 
saying:  'The  provision  of  the  stat- 
ute that  the  rates  fixed  by  the  com- 
missioners shall  be  regarded  as 
prima  facie  reasonable  is  not  of  an 
unusual  character,  and  was  enacted 
in  the  exercise  of  the  undoubted 
power  of  the  state  to  prescribe 
rules  of  evidence  in  all  proceeding 
under  the  laws  of  the  state.  The 
law  presumes  the  acts  of  officers 
of  the  state  to  be  rightfully  done, 
and  gives  them  faith  accordingly. 
This  rule  is  not  unlike  the  provi- 
sion of  the  statute  complained  of 
by  the  plaintiff.'     Burlington  &c.  R. 


Co.  V.  Dey,  82  Iowa  312,  48  N.  W. 
98,  12  L.  R.  A.  436,  31  Am.  St.  477. 
See  also  Chicago  &c.  R.  Co.  v. 
People.  61  111.  11,  16  Am.  Rep.  599." 
See  also  Richmond  &c.  R.  Co.  v. 
Trammel,  53  Fed.  196;  State  v. 
Minneapolis  &c.  R.  Co.,  80  Minn. 
191,  83  N.  W.  60,  89  Am.  St.  514. 

64  Richmond  &c.  R.  Co.  v.  Tram- 
mel, 53  Fed.  196;  Reagan  v.  Farm- 
ers' L.  &  T.  Co.,  154  U.  S.  362,  14 
Sup.  Ct.  1047,  38  L.  ed.  1014.  See 
also  Public  Service  &c.  Gas  Co.  v. 
Board,  87  N.  J.  L.  597,  94  Atl.  634, 
L.  R.  A.  1918A,  421.  And  provision 
is  usually  made  for  giving  notice 
of  the  time  and  place  of  fixing  the 
rate.  Stone  v.  Farmers'  &c.  Co., 
116  U.  S.  307,  6  Sup.  Ct.  334,  388, 
1191,  29  L.  ed.  dZd;  Burlington  &c. 
R.  Co.  V.  Dey,  82  Iowa  312,  48  N. 
.W.  98,  12  L.  R.  A.  436,  31  Am.  St. 
477.  Legislation  imposing  out- 
rageous penalties  for  failing  to  obej^ 
its  provisions  while  an  appeal  is 
pending  by  the  party  to  the  courts 
to  set  it  aside  as  unconstitutional 
is  invalid.  Ex  parte  Young,  209 
U.  S.  123.  28  Sup.  Ct.  441.  52  L.  ed. 
715. 


^811 


RAILROADS 


184 


railway  commissioners  are  very  broad  and  full.*^^  The  principal 
restraint  upon  their  power  over  that  subject  is  that  imposed  by 
the  commerce  clause  of  the  federal  constitution,  for  that  firmly 
prohibits  any  regulation  of  commerce  between  the  states.®^ 
There  are,  of  course,  other  constitutional  restraints,  some  of 
which  have  already  been  considered,  and  others  that  will  be 
hereafter  discussed.  But,  as  we  have  said,  we  do  not  intend  in 
this  chapter  to  do  much  more  than  incidentally  treat  of  the  power 
to  regulate  charges  for  transporting  property  and  passengers,  and 
we  pass  the  subject  without  further  comment  except  in  so  far  as 
we  may  touch  upon  the  subject  in  speaking  of  domestic  or  inter- 
state commerce  and  matters  therewith  connected.     It  may  be 


^5  Georgia  Railroad  &  Banking 
Co.  V.  Smith,  128  U.  S.  174,  9  Sup. 
Ct.  47,  32  L.  ed.  Zll;  Reagan  v. 
Trust  Co.,  154  U.  S.  413,  14  Sup. 
Ct.  1060,  38  L.  ed.  1028,  and  cases 
cited;  Chicago  &c.  R.  Co.  v.  Dey, 
38  Fed.  656;  Winsor  Coal  Co.  v. 
Chicago  &c.  Co.,  52  Fed.  716;  State 
Public  Utilities  Com.  v.  Chicago 
&c.  R.  Co.,  275  111.  555,  114  N.  E. 
325,  Ann.  Cas.  1917C,  50,  and  note, 
reviewing  many  cases  upholding 
statutes  giving  commissions  power 
to  fix  rates  as  against  various 
alleged  constitutional  objections; 
Burlington  &c.  R.  Co.  v.  Dey,  82 
Iowa  312,  48  N.  W.  98,  12  L.  R.  A. 
436,  31  Am.  St.  477.  See  also 
Charlotte  &c.  R.  Co.  v.  Gibbes,  142 
U.  S.  386,  12  Sup.  Ct.  255,  35  L.  ed. 
1051;  Matthews  v.  Corp.  Comrs., 
97  Fed.  400;  Coyle  v.  Southern  R 
Co.,  112  Ga.  121,  Zl  S.  E.  163;  Rail- 
road Comrs.  V.  Wabash  R.  Co.,  123 
Mich.  669,  82  N.  W.  526;  Railroad 
Comrs.  V.  Railroad  Co.,  22  S.  Car. 
220.  As  to  charter  exemption,  see 
Georgia  Railroad  &  Banking  Co. 
V.  Smith,  128  U.  S.  174,  9  Sup.  Ct. 
47,  32  L.   ed.  Zll \   Stone  v.  Yazoo 


&c.  R.  Co.,  62  Miss.  607,  52  Am. 
Rep.  193;  ^Mississippi  R.  Com.  v. 
Gulf  &c.  R.  Co.,  78  Miss.  750,  29 
So.  789. 

^^  Among  the  great  number  of 
cases  bearing  upon  this  question 
are  the  following:  Cunningham  v. 
Macon  &c.  R.  Co.,  109  U.  S.  446, 
3  Sup.  Ct.  292,  27  L.  ed.  992;  Lord 
v.  Steamship  Co.,  102  U.  S.  541,  26 
L.  ed.  224;  Gloucester  Ferry  Co.  v. 
Pennsylvania,  114  U.  S.  196,  5  Sup. 
Ct.  826,  29  L.  ed.  158;  Reagan  v. 
Farmers'  Loan  &c.  Co.,  154  U.  S. 
362,  14  Sup.  Ct.  1047,  38  L.  ed. 
1014;  Chicago  &c.  Ry.  Co.  v. 
State  Public  Utilities  Com.  of  111., 
242  U.  S.  Z7>Z,  37  Sup.  Ct.  173; 
Pacific  &c.  Co.  v.  Board  of  Rail- 
road Com.,  18  Fed.  10;  Cutting  v. 
Florida  &c.  Co.,  46  Fed.  641;  Cu- 
ban &c.  Co.  V.  Fitzpatrick,  66  Fed. 
63;  Council  Bluflfs  v.  Kansas  City 
&c.  R.  Co.,  45  Iowa  338,  24  Am. 
Rep.  773;  Bangor  v.  Smith,  83 
Maine  422,  22  Atl.  379;  Railroad 
Comrs.  v.  Railroad  Co.,  22  S.  Car. 
220;  Sternberger  v.  Cape  Fear  &c. 
R.  Co.,  29  S.  Car.  510,  7  S.  E.  836, 
2  L.  R.  A.  105. 


185  STATE  RAILROAD  COMMISSIONERS  §  812 

well,  in  this  connection,  however,  to  call  attention  to  a  recent 
case  in  which  a  company  which  had  reorganized  and  reincorpor- 
ated was  compelled  by  mandamus  to  reduce  its  rates  in  accord- 
ance with  the  schedule  provided  in  the  new  act,  under  which  it 
was  incorporated,  although  the  old  company  was  authorized  to 
charge  higher  rates.  The  state  court,  at  the  suit  of  the  railroad 
commission,  awarded  a  writ  of  mandate  on  the  ground  that  the 
company  was  estopped  to  question  the  law  under  which  it  had 
incorporated,  and  the  Supreme  Court  of  the  United  States  af- 
firmed the  decision  of  the  Supreme  Court  of  the  state/'' 

§812  (690).  Domestic  commerce. — The  power  to  regulate 
domestic  or  intrastate  commerce  resides  in  the  states.  The 
states  may  make  such  regulations  as  they  deem  expedient  or 
politic  for  the  government  of  commerce  within  their  own  borders, 
provided  that  the  regulations  do  not  violate  some  constitutional 
provision.  If  the  places  from  which  the  passengers  or  property 
are  transported  are  within  the  state,  and  the  places  to  which  they 
are  carried  are  also  within  the  limits  of  the  same  state,  the  trans- 
portation being  wholly  therein,  the  commerce  is  domestic,  and 
not  interstate  commerce,  and,  as  domestic  commerce,  is  subject 
to  state  control.®*  It  has  also  been  held  that  if  the  place  from 
which  passengers  and  property  are  transported,  and  the  place  to 
which  they  are  carried,  are  both  within  the  territorial  limits  of 
the  state,  and  the  carriage  is  continuous,  then  the  transportation 
is  intrastate  commerce,  although  in  course  of  carriage  passengers 
or  property  may,  on  the  line  of  transportation,  pass  beyond  the 

6-  Grand    Rapids    &c.    R.    Co.    v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47. 

Osborn,   193  U.  S.  17,  24  Sup.   Ct.  32  L.  ed.  Zll;  Louisville  &c.  R.  Co. 

310,  48  L.  ed.  598,  affirming  Comrs.  v.    Mississippi,    133    U.    S.    587,    10 

of  Railroads  v.   Grand  Rapids  &c.  Sup.  Ct.  348,  ZZ  L.  ed.  784;  Pacific 

R.    Co.,    130   Mich.   248,   89   N.   W.  Exp.  Co.  v.  Seibert,  142  U.  S.  339, 

967.    -  12    Sup.    Ct.    250,   35    L.    ed.    1035; 

'°^  Interstate   commerce   is   "com-  Reagan    v.    Mercantile    Trust    Co., 

merce  which  concerns  more  states  154  U.  S.  413,  14  Sup.  Ct.  1060,  38 

than   one."     Gibbons   v.   Ogden,   9  L.   ed.   1028;   Interstate   Commerce 

Wheat.  (U.S.)  1,6  L.  ed.  23;  Geor-  Com.    v.    Cincinnati   &c.    R.    Co.,   4 

gia    Railroad    &    Banking    Co.    v.  Int.  Com.  Rep.  582. 


ij812 


RAILROADS 


186 


borders  of  the  state, *^'-'  but  this  doctrine  seems  to  be  denied  by 
the  Supreme  Court  of  the  United  States  in  a  recent  decision 
upon  the  subject.'*'  To  the  rule  that  where  both  the  place  where 
the  passengers  or  property  are  received,  and  the  place  of  desti- 
nation, are  within  the  territorial  limits  of  the  same  state,  the 
commerce  is  usually  intrastate,  and  subject  to  state  regulation, 
there  is  an  exception,  and  that  exception  is  this :  If  the  carriage 
is  over  the  high  seas,  although  from  place  to  place  in  the  same 
state,  it  is  interstate  commerce,  and  cannot  be  regulated  by  the 
state. "^  If  the  property  has  begun  to  move  from  one  state  to 
another,  then  commerce  between  the  states  as  to  that  property 


•5^  Campbell  v.  Chicago  &c.  R. 
Co.,  86  Iowa  587,  53  N.  W.  351,  17 
L.  R.  A.  443;  Lehigh  Valley  R.  Co. 
V.  Pennsylvania,  145  U.  S.  192,  12 
Sup.  Ct.  806,  36  L.  ed.  672;  Seawell 
V.  Kansas  City  &c.  R.  Co.,  119  Mo. 
224,  24  S.  W.  1002.  See  State  v. 
Chicago  &c.  R.  Co.,  40  Minn.  267, 
41  N.  W.  1047,  3  L.  R.  A.  238;  Pa- 
cific &c.  R.  Co.  V.  Board  of  Rail- 
road Comrs.,  9  Sawy.  (U.  S.)  253; 
Kiefifer,  Ex  parte,  40  Fed.  399;  Har- 
mon V.  Chicago,  140  III.  374,  26 
N.  E.  697,  29  N.  E.  732.  43  Alb.  L. 
J.  375;  Chicago  &c.  R.  Co.  v.  Jones, 
149  111.  361,  41  Am.  St.  278,  37  N.  E. 
247,  24  L.  R.  A.  141;  Scammon  v. 
Kansas  City  &c.  R.  Co.,  41  Mo. 
App.  194;  State  v.  Stilsing,  52  N. 
J.  L.  517,  20  Atl.  65;  State  v.  West- 
ern &c.  Co.,  113  N.  Car.  213,  18 
S.  E.  389,  22  L.  R.  A.  570,  44  Am. 
&  Eng.  Corp.  Cas.  377,  18  S.  E. 
389;  Commonwealth  v.  Lehigh  Val- 
ley &c.  R.  Co.  (Pa.  St.),  17  Atl. 
179;  Fort  Worth  &c.  R.  Co.  v. 
Whitehead,  6  Tex.  Civ.  App.  595, 
26  S.  W.  172.  The  business  of 
soliciting  freight  and  passengers 
for  interstate  railroads  is  interstate 
commerce.      McCall    v.    California, 


136  U.  S.  104,  10  Sup.  Ct.  881,  34 
L.  ed.  391,  42  Alb.  L.  J.  42.  The 
case  of  Sternberger  v.  Cape  Fear 
&c.  R.  Co.,  29  S.  Car.  510,  7  S.  E. 
836,  2  L.  R.  A.  105,  has  been 
thought  to  be  overruled  by  the  de- 
cision in  Lehigh  Valley  Co.  v. 
Pennsylvania,  supra,  in  so  far  at 
least  as  it  holds  that  where  there 
is  continuous  carriage  from  point 
to  point  within  the  same  state,  the 
commerce  is  interstate  if  in  course 
of  transit  the  goods  or  passengers 
are  temporarily  on  the  soil  of  an- 
other state.  But  it  is  cited  with 
approval  in  the  case  referred  to  in 
the  next  following  note. 

"0  Hanley  v.  Kansas  City  &c.  R. 
Co.,  187  U.  S.  617,  23  Sup.  Ct.  214, 
47  L.  ed.  333,  and  see  post  §  2550. 

^1  Lord  V.  Steamship  Co.,  102  U. 
S.  541,  26  L.  ed.  224.  See  the  Citv 
of  Salem,  37  Fed.  846.  The  deci- 
sion of  the  Supreme  Court  referred 
in  the  preceding  note  occurs  to 
broaden  the  exception  and  makes 
the  transaction  interstate  com- 
merce if  the  goods  move  through 
another  state  even  though  their 
final  destination  is  in  the  same 
state  from  which  they  started. 


187 


STATE   RAILROAD  COMMISSIOXERS 


§813 


has  commenced.'-  And  it  does  not  cease  to  be  interstate  when 
the  goods  finally  enter  the  state  of  destination,  but  ordinarily 
continues  to  be  an  interstate  shipment  until  delivered ;"  so  that 
an  attempt  by  that  state  to  regulate  shipping  charges  to  the 
consignee  seems  to  be  a  regulation  of  interstate  commerce/*  It 
has  also  been  held  that  the  time  and  place  of  making  transfers 
of  articles  of  commerce  from  one  interstate  carrier  to  another 
cannot  be  regulated  by  a  state. '^^ 

§  813  (691).  Reasonableness  of  freight  and  fare  tariff  of  rates 
— How  far  a  judicial  question. — The  question  as  to  the  power  of 
the  courts  to  set  aside  a  schedule  of  charges  for  the  transporta- 
tion of  property  and  passengers,  framed  either  by  a  state  legis- 
lature directly  or  by  a  board  of  commissioners  acting  under 
authority  of  a  state  statute,  can  no  longer  be  regarded  as  an  open 
one,  for  the  power  has  been  adjudged  to  exist  by  many  decisions 
of  the  court  of  last  resort.  The  question  may  be  presented  in 
opposing  an  application  to  enforce  an  order  of  the  board,  by  an 
injunction  to  restrain  the  enforcement  of  an  order,  and  in  other 
modes.     In  a  comparatively  recent  case  the  Supreme  Court  of 


"-The  Daniel  Ball,  10  Wall.  (U. 
S.)  557,  19  L.  ed.  999;  State  v.  In- 
diana &c.  Co.,  120  Ind.  575,  22  N. 
E.  778,  6  L.  R.  A.  579,  30  Cent. 
L.  J.  179,  41  Alb.  L.  J.  187.  See 
Coe  V.  Errol,  116  U.  S.  517,  6  Sup. 
Ct.  475,  29  L.  ed.  715;  Railroad  Co. 
V.  Husen,  95  U.  S.  465,  24  L.  ed. 
527;  Corson  v.  Maryland,  120  U.  S. 
502,  7  Sup.  Ct.  655,  30  L.  ed.  699; 
Western  Union  Tel.  Co.  v.  Massa- 
chusetts. 125  U.  S.  530,  8  Sup.  Ct. 
161,  31  L.  ed.  790;  Kidd  v.  Pearson, 
128  U.  S.  1,  9  Sup.  Ct.  6,  32  L.  ed. 
346;  Greene,  In  re,  52  Fed.  104; 
Woodruff  &c.  Co.  V.  State,  114  Ind. 
155,  15  N.  E.  814;  Delaware  &c.  Co. 
V.  Commonwealth  (Pa.),  17  Atl. 
175. 

^3  State  V.  Southern  Ry.  Co.  (Tex. 
Civ.  App.),  49  S.  W.  252.    See  also 


Rhodes  v.  Iowa,  170  U.  S.  412,  18 
Sup.  Ct.  664,  42  L.  ed.  1088. 

"*  McNeill  V.  Southern  Ry.  Co., 
202  U.  S.  543,  50  L.  ed.  1142,  26 
Sup.  Ct.  722.  See  also  Interstate 
Stock  Yd.  Co.  V.  Indianapolis  Un- 
ion Ry.  Co.,  99  Fed.  472;  Central 
Stock  Yds.  Co.  V.  Louisville  &c.  R. 
Co.,  118  Fed.  113. 

75  Council  Blufifs  v.  Kansas  City 
&c.  R.  Co.,  45  Iowa  338,  24  Am. 
Rep.  IIZ.  See  State  v.  Chicago  &c. 
R.  Co.,  7>Z  Fed.  391;  Hart  v.  Chi- 
cago &c.  R.  Co.,  69  Iowa  485.  .A.nd 
compare  Chicago  &c.  R.  Co.  v. 
Hardwick  Farmers'  Elevator  Co., 
226  U.  S.  426,  12>  Sup.  Ct.  174,  57 
L.  ed.  284,  46  L.  R.  A.  (N.  S.)  203; 
note  in  Ann.  Cas.  1917A,  985,  986. 
992,  993. 


$813 


RAILROADS 


188 


the  United  States  held  that  a  raih-oad  company,  in  defending  an 
action  to  recover  a  penalty,  might  show  that  the  rate  fixed  by  the 
commissioners  was  an  unreasonable  one/°  In  the  case  to  which 
we  refer  the  railroad  company  was  defeated,  not,  however,  be- 
cause the  defense  that  the  rate  fixed  was  an  unreasonable  one 
might  not  be  interposed,  but  because  the  company  did  not  satis- 
factorily prove  that  the  rate  was  unreasonable.  The  courts  will 
decide  whether  the  rate  prescribed  is  or  is  not  a  reasonable  one,^^ 


76  St.  Louis  &c.  R.  Co.  V.  Gill, 
156  U.  S.  649,  15  Sup.  Ct.  484,  39  L. 
ed.  567.  In  that  case  it  was  said: 
"This  court  has  declared  in  several 
cases  that  there  is  a  remedy  in  the 
courts  for  relief  against  legislation 
establishing  a  tariflf  of  rates,  which 
is  so  unreasonable  as  to  practically 
destroy  the  value  of  property  of 
companies  engaged  in  the  carrying 
business,  especially  may  the  courts 
of  the  United  States  treat  such  a 
question  as  a  judicial  one  and  hold 
such  acts  of  legislation  to  be  in 
conflict  with  the  constitution  of  the 
United  States,  as  depriving  them 
of  the  equal  protection  of  the 
laws."  The  court  referred  to  the 
fact  that  in  some  of  the  states  com- 
missions were  established,  and  said: 
"But  there  are  other  cases,  and  the 
present  is  one,  where  the  legisla- 
ture chooses  to  act  directly  on  the 
subject  by  themselves  establishing 
a  tariff  of  rates,  and  prescribing 
penalties.  In  such  cases  there  is 
no  opportunity  of  resorting  to  a 
compendious  remedy,  such  as  a 
proceeding  in  equity,  because  there 
is  no  public  functionary  or  com- 
mission, which  can  be  made  to  re- 
spond, and,  therefore,  if  the  com- 
panies are  to  have  any  relief,  it 
must  be  found  in  a  right  to  raise 
tlie  question  of  the  reasonableness 


of  the  statutory  rates  by  way  of 
defense  to  an  action  for  the  col- 
lection of  the  penalties."  See  also 
Burlington  &c.  R.  Co.  v.  Dey,  82 
Iowa  312,  48  N.  W.  98,  12  L.  R.  A. 
436,  31  Am.  St.  477. 

77  Dow  v.  Beidelman,  125  U.  S. 
680,  8  Sup.  Ct.  1028,  31  L.  ed.  841: 
Railroad  Commission  Cases,  116 
U.  S.  307,  6  Sup.  Ct.  334,  29  L.  ed. 
636;  Chicago  &c.  R.  Co.  v.  Minne- 
sota, 134  U.  S.  418,  10  Sup.  Ct.  462. 
33  L.  ed.  970;  Chicago  &c.  R.  Co.  v. 
Wellman,  143  U.  S.  339,  12  Sup.  Ct. 
400,  36  L.  ed.  176;  Reagan  v.  Farm- 
ers' Loan  &c.  Co.,  154  -U.  S.  362, 
14  Sup.  Ct.  1047,  38  L.  ed.  1014; 
St.  Louis  &c.  R.  V.  Gill,  156  U.  S. 
649,  15  Sup.  Ct.  484,  39  L.  ed.  567; 
Southern  Pac.  Co.  v.  Railroad 
Comrs.,  78  Fed.  236;  Dow  v.  Beid- 
elman, 49  Ark.  325,  5  S.  W.  718,  31 
Am.  &  Eng.  R.  Cas.  14;  Penna.  R. 
Co.  v.  County  of  Philadelphia,  220 
Pa.  St.  100,  68  Atl.  676,  15  L.  R.  A. 
(N.  S.)  108;  State  v.  Central  Vt. 
Ry.  Co.,  81  Vt.  463,  71  Atl.  194.  130 
Am.  St.  1065.  But  before  the  courts 
will  restrain  the  execution  of  the 
order  it  must  clearly  appear  that 
the  rates  fixed  are  unreasonable  or 
unlawful.  Pennsylvania  R.  Co.  v. 
Towers,  126  Md.  59,  94  Atl.  330, 
Ann.  Cas.  1917B,  1144. 


189 


STATE  RAILROAD  COMMISSIONERS 


81:3 


but  they  will  not  fix  the  ratc.''^  The  question  as  to  how  far  the 
courts  can  go  is  not  free  from  difficulty,  but  it  is  quite  clear  that 
they  have  no  power  to  make  a  tariff  of  rates.  For  this  conclusion 
there  are,  at  least,  two  reasons:  (1)  The  power  to  fix  rates  is  by 
law  conferred  upon  a  tribunal  composed  of  administrative  or 
ministerial  officers;  (2)  The  power  to  fix  rates  is  a  ministerial 
and  not  a  judicial  power,  and  hence  cannot  be  exercised  by  the 
courts.  The  legislature  cannot  directly,  or  through  the  medium 
of  commissioners,  make  rates  so  low  as  to  deprive  a  railroad 
company  of  a  fair  and  reasonable  remuneration,  for  while  there 
is  power  to  regulate  there  is  no  power  to  deprive  the  company 
of  the  right  to  tolls,  freights  or  fares.'"  It  is  to  be  understood,  of 
course,  that  a  state  cannot  enact  a  statute,  which,  within  the 
meaning  of  the  constitution,  is  a  regulation  of  interstate  com- 
merce. 


78  In  St.  Louis  &c.  R.  Co.  v.  Gill, 
156  U.  S.  649,  15  Sup.  Ct.'  484,  39 
L.  ed.  567,  the  court,  after  review- 
ing the  cases,  said  of  the  case  of 
Reagan  v.  Farmers'  Loan  &  Trust 
Co.,  154  U.  S.  362,  14  Sup.  Ct.  1037, 
38  L.  ed.  1015,  that:  "The  opinion 
of  this  court  on  appeal  was  that 
while  it  was  within  the  power  of 
the  court  of  equity  in  such  case  to 
decree  that  the  rates  so  established 
by  the  commission  were  unreason- 
able and  unjust,  and  to  restrain 
their  enforcement  it  was  not  within 
its  power  to  establish  rates  itself, 
or  to  restrain  the  commission  from 
again  establishing  rates."  See  also 
Southern  Pac.  Co.  v.  Colorado  &c. 
Co.,  101  Fed.  779;  Interstate  Com- 
merce Commission  v.  Cincinnati 
&c.  R.  Co.,  167  U.  S.  479,  17  Sup. 
Ct.  896,  42  L.  ed.  243;  Interstate 
Commerce  Commission  v.  Alabama 
&c.  R.  Co.,  168  U.  S.  144,  18  Sup. 
Ct.  45,  42  L.  ed.  414;  St.  Paul  Book 


&c.  Co.  V.  St.  Paul  Gaslight  Co., 
130  Minn.  71,  153  N.  W.  262,  L.  R. 
A.  1918A,  384.  But  see  last  chap- 
ter on  Rate  Regulation  and  Inter- 
state  Commerce. 

'3  Stone  V.  Farmers'  Loan  &c. 
Co.,  116  U.  S.  307,  6  Sup.  Ct.  339, 
388,  1191,  29  L.  ed.  636;  Attorney- 
General  V.  Germantown  &c.  Road, 
55  Pa.  St.  466;  Miller  v.  New  York 
&c.  R.  Co.,  21  Barb.  (N.  Y.)  513; 
Koehler,  Ex  parte,  30  Fed.  867,  21 
Am.  &  Eng.  R.  Cas.  52.  See  also 
Reagan  v.  Farmers'  &c.  Co.,  154 
U.  S.  362,  367,  14  Sup.  Ct.  1047,  38 
L.  ed.  1015;  Chicago  &c.  R.  Co.  v. 
Minnesota,  134  U.  S.  418,  10  Sup. 
Ct.  462,  33  L.  ed.  970;  Clyde  v. 
Richmond  &c.  R.  Co.,  57  Fed.  436; 
Seaboard  Air  Line  Ry.  Co.  v.  Rail- 
road Com.,  155  Fed.  792.  See  Stone 
V.  Natchez  &c.  R.  Co.,  62  Miss.  646; 
Tilley  v.  Savannah  &c.  Co.,  5  Fed. 
641;  State  v.  Maine  Cent.  R.  Co., 
77  N.  H.  425,  92  Atl.  837. 


^^  814]  RAILROADS.  190 

§814  (692).  Regulation  of  charges — Test  of  reasonableness. 
— The  courts  have,  as  is  evident  from  their  opinions,  been  per- 
plexed by  the  question  as  to  the  tests  which  shall  be  employed  in 
determining'  whether  tariffs  of  rates  established  by  a  state  leg^is- 
lature  directly,  or  through  the  instrumentality  of  a  board  of  rail- 
road commissioners,  are  so  unrea.sonablc  as  to  require  judicial 
condemnation.  The  matter  cannot,  as  yet,  be  regarded  as  fully 
settled,**"  although  some  general  principles  and  rules  were  stated 
by  the  Supreme  Court  in  several  leading  cases  a  number  of  years 
ago,  and  recent  cases  have  added  others  and  made  particular 
applications  of  them.  That  a  tariff  of  rates  so  unreasonable  as  to 
deprive  a  company  of  fair  and  just  remuneration  is  invalid  has 
been  clearly  and  unequivocally  adjudged,  but  we  can  find  no 
case  which  satisfactorily  and  precisely  defines  what  constitutes 
an  unreasonable  rate.  In  our  opinion  no  precise  definitions  can 
be  framed,  nor  can  any  rules  of  much  value  be  formulated  that 
will  fitly  apply  to  or  govern  all  cases.  Outlines  may  be  sketched, 
and  general  directions  given,  but  exact  rules  or  precise  definitions 
cannot  be  safely  stated.  Some  tests  have  been  suggested,  and, 
so  far  as  concerns  the  particular  case,  they  are  well  enough,  but 
in  some  instances  when  it  is  attempted  to  carry  the  tests  beyond 
particular  cases  confusion  arises,  and  error  is  almost  certain  to 
result.  It  is  safe  to  say  that  if  the  rates  established  are  such  as 
to  pre\ent  a  company  from  making  any  net  earnings,  the  act 
establishing  such  rates  is  invalid. 

§  815   (693).     Tariff  of  rates — Tests  of  reasonableness. — In  the 

preceding  section  we  said  that  as  yet  no  satisfactory  test  by 
which  the  question  of  the  reasonableness  of  a  tariff  of  rates  can 
always  be  solved  has  been  constructed  or  formulated  by  the 
courts,  but  there  are  cases  which  directly  bear  upon  the  general 
question.  It  has  been  adjudged  by  the  Supreme  Court  of  the 
United  States  that,  whether  a  tariff  of  rates  is  or  is  not  a  reason- 
able one,  is  to  be  ascertained  by  its  effect  upon  the  entire  system 

^0  In  the  case  of  Ames  v.  Union  not  yet  been  fully  settled.     Indeed, 

Pacific    R.    Co.,    64    Fed.    165,    Mr.  it   is    doubtful   whether    any   single 

Justice  Brewer  said:  "What  is  the  rule    can    be    laid    down    applicable 

test   by   which    the    reasonableness  to  all  cases." 
of  rates  is  determined?     This   has 


i;ji 


STATE  RAILROAD   COMMISSIONERS 


§815 


or  line  of  road,  and  not  merely  upon  part  of  it.^^  The  language 
employed  in  the  opinion  given  in  the  case  referred  to  is  very 
broad,  and  seems  to  deny  that  the  effect  of  a  tariff  of  rates  upon 
part  of  a  road  can  be  considered  as  unreasonable  in  any  case,  if 
the  entire  line  within  the  state  can,  under  the  tariff,  earn  remu- 
nerative freights  and  fares.  So,  it  has  been  held  that  it  is  not 
beyond  the  power  of  the  commission  to  reduce  the  freight  upon 
a  particular  article  so  long  as  the  company  is  able  to  earn  a  fair 
profit  upon  the  entire  business,  and  that  the  burden  is  upon  the 
company  to  impeach  the.  action  of  the  commission.^-  We  venture 
to   suggest   that   there   may   be   cases   where   a    tariff,   although 


SI  In  St.  Louis  &c.  R.  Co.  v.  Gill, 
156  U.  S.  649,  15  Sup.  Ct.  484,  39  L. 
ed.  567,  the  court  said:  "It,  there- 
fore, appears  that  the  allegations 
made  and  the  evidence  offered  did 
not  cover  the  company's  railroad  as 
an  entirety,  even  in  the  state  of 
Arkansas,  but  were  made  in  refer- 
ense  to  that  portion  of  the  road 
originally  belonging  to  the  St. 
Louis.  Arkansas  and  Texas  Rail- 
way Company  and  extending  from 
the  northern  boundary  of  Arkansas 
to  Fayetteville  in  said  state.  In 
this  state  of  facts,  we  agree  with 
the  supreme  court  of  Arkansas,  as 
disclosed  in  the  opinion  contained 
in  the  record,  and  which  was  to  the 
effect  that  the  correct  test  was  the 
effect  of  the  act  on  the  defendant's 
entire  line,  and  not  upon  that  part 
which  was  formerly  a  part  of  one 
of  the  consolidating  roads;  that 
the  company  can  not  claim  the 
right  to  earn  a  net  profit  from 
every  mile,  section  or  other  part 
into  which  the  road  might  be  di- 
vided, nor  attack  as  unjust  a  regu- 
lation which  fixed  a  rate  at  which 
some  part  would  be  unremunera- 
tive;    that    it    would    be    practically 


impossible  to  ascertain  in  what  pro- 
portion the  several  parts  would 
share  with  others  in  the  expenses 
and  receipts  in  which  they  partici- 
pated; and.  finally,  that  to  the  ex- 
tent that  injustice  is  to  be  deter- 
mined by  the  effect  of  the  act  of 
the  earnings  of  the  company,  the 
earnings  of  the  entire  line  must 
be  estimated  as  against  all  its  legi- 
timate expenses  under  the  opera- 
tion of  the  act  within  the  limits  of 
the  state  of  Arkansas."  See  also 
Chesapeake  &c.  Ry.  Co.  v.  Public 
Service  Com.,  242  U.  S.  603,  37 
Sup.  Ct.  234;  Interstate  Commerce 
Commission  v.  Louisville  &c.  R. 
Co.,  118  Fed.  613;  Pensacola  &c. 
R.  Co.  V.  Florida,  25  Fla.  310,  5  So. 
833;  Cantrell  v.  Railroad,  176  111. 
512,  52  N.  E.  292,  35  L.  R.  A.  656. 

82  Minneapolis  &c.  R.  Co.  v.  Min- 
nesota, 186  U.  S.  257,  261.  22  Sup. 
Ct.  900,  902.  46  L.  ed.  1151;  South- 
ern R.  Co.  V.  Atlanta  Stove  Works, 
128  Ga.  207,  57  S.  E.  429;  State  v. 
Northern  Pac.  R.  Co.,  19  N.  Dak. 
45,  120  N.  W.  869,  25  L.  R.  A.  (N. 
S.)  1001.  But  under  several  of  the 
state  statutes  it  has  been  held  that 
the    company   must   be    allowed    a 


§815 


RAILROADS 


192 


affecting  part  only  of  a  road,  might  be  so  palpably  unjust  and 
unreasonable  as  to  make  it  the  duty  of  the  courts  to  adjudge  it 
ineffective.  If  the  traffic  between  two  towns  of  the  same  state 
is  the  principal  intrastate  traffic,  we  do  not  believe  that  the  state 
legislature  could  fix  the  rate  for  transporting  passengers  and 
property  so  low  that  the  company  must  sufifer  a  serious  loss  on 
every  passenger  and  all  freight  that  it  transports,  even  though 
the  rates  fixed  for  carriage  on  other  parts  of  the  road  should  be 
such  as  to  leave  the  company  reasonable  net  earnings,  yet  there 
are  intimations  in  some  of  the  decisions  that  render  this  doubtful. 
In  the  case  suggested  one  or  the  other  of  the  rates  would  surely 
be  unreasonable  and  probably  discriminatory,  but  we  do  not 
mean  that  it  is  necessary  that  the  remuneration  should  be  such 
as  will  make  every  "mile  or  section"  of  the  road  yield  net  earn- 
ings. To  us  it  seems  that  the  question  must  be  determined 
largely  upon  the  facts  of  each  particular  case  and  that  broad 
general  rules  cannot  be  safely  laid  down.  The  court  cannot  even 
say  that  in  every  instance  a  rate  which  deprives  investors  of  profit 
is  necessarily  an  unreasonable  one.  There  cannot  be  a  rigid 
general  rule  making  the  fact  that  no  profits  can  be  realized  the 
universal,  or,  indeed,  even  the  uniform  test,®^  although,  ordi- 
narily, the  company  should  be  allowed  a  fair  return.     It  has 


fair  return  on  the  state  business 
without  regard  to  its  interstate 
business.  Northern  Pac.  R.  Co.  v. 
Keyes,  91  Fed.  47;  Minnesota  Rate 
Cases,  230  U.  S.  352,  33  Sup.  Ct. 
729,  57  L.  ed.  1511,  48  L.  R.  A.  (N. 
S.)  1151,  Ann.  Cas.  1916A,  18;  In- 
terstate Commerce  Commission  v. 
Louisville  &c.  R.  Co.,  227  U.  S.  88, 
33  Sup.  Ct.  185,  57  L.  ed.  431; 
Smyth  V.  Ames,  169  U.  S.  466,  42 
L.  ed.  819,  18  Sup.  Ct.  418;  State  v. 
Seaboard  Air  Line  R.  Co.,  48  Fla. 
129,  37  So.  314.  All  the  intrastate 
business,  however,  is  to  be  consid- 
ered even  in  such  case.  Southern 
R.  Co.  V.  McNeill,  155  Fed.  756. 
Compare  Seaboard  Air  Line  R.  v. 


Florida,    203    U.    S.    261,    27    Sup. 
Ct.  109,  51  L.  ed.  175. 

^■■5  In  Reagan  v.  Mercantile  Trust 
Co.,  154  U.  S.  413,  14  Sup.  Ct.  1060, 
38  L.  ed.  1028,  the  court  said:  "It 
is  unnecessary  to  decide,  and  we  do 
not  wish  to  be  understood  as  laying 
down  an  absolute  rule,  that  in 
every  case  a  failure  to  produce 
some  profit,  to  those  who  have  in- 
vested their  money  in  the  building 
of  a  road  is  conclusive  that  the  tar- 
iff is  unjust  and  unreasonable.  And 
yet  justice  demands  that  every  one 
shciuld  receive  some  compensation 
frr  the  use  of  his  money  or  prop- 
erty, i^  it  be  possible  without  in- 
uirv  to  others."     As  a  general  rule 


193 


STATE   RAILROAD   COAJ  iilSSlONERS 


§815 


always  been  the  rule  that  common  carriers  cannot  make  unrea- 
sonable charges,^*  and  to  permit  them  to  make  such  charges 
would  be  to  depart  from  long-settled  law  and  enable  such  carriers 
to  injure  others;  on  the  other  hand,  to  compel  them  to  do  busi- 
ness without  reaping  a  profit  seems  palpably  unjust.  It  is  no 
easy  matter  to  escape  from  the  dilemma  which  naturally  arises 
from  a  consideration  of  the  conflicting  rights  and  interests.  There 
may  be,  as  pointed  out  by  a  distinguished  federal  judge,^'  changes 
of  such  a  radical  character  as  to  make  it  unsafe  and  unjust  to 
take  as  a  test  the  right  to  reap  profits  from  the  business  con- 
ducted by  a  railroad  company.  But  a  rate  fixed  by  a  state  railroad 
commission  for  a  particular  article  carried  over  specified  railroads 


the  rates  should  be  such  as  to  allow 
the  company  a  fair  return  on  the 
value  of  what  it  employs  for  the 
public.  Southern  Pac.  R.  v.  Rail- 
road Comrs..  78  Fed.  236;  Smyth  v. 
Ames,  169  U.  S.  466,  18  Sup.  Ct. 
418,  419,  42  L.  ed.  819.  But  this 
certainly  does  not  mean  that  the 
rate  must  be  such  as  to  enable 
every  company  to  make  a  profit 
regardless  of  the  amount  wasted  in 
the  construction  of  the  road  or  its 
management  or  the  like.  And  it  has 
been  held  that  intrastate  rates  es- 
tablished for  all  may  be  reasonable 
and  enforceable  as  to  some  of  the 
roads  and  unreasonable  and  unen- 
forceable as  to  others.  St.  Louis 
&c.  R.  Co.  V.  Hadley,  168  Fed.  348. 

84  Chicago  &c.  R.  Co.  v.  Osborne, 
52  Fed.  912. 

85  In  Ames  v.  Union  Pacific  R. 
Co.,  64  Fed.  165,  177,  Mr.  Justice 
Brewer  used  this  language:  "If  it 
be  said  that  the  rates  be  such  as  to 
secure  to  the  owners  a  reasonable 
per  cent,  on  the  money  invested  it 
will  be  remembered  that  many 
things  have  happened  to  make  the 
investment    far    in    excess    of    the 


actual  value  of  the  property,  inju- 
dicious contracts,  poor  engineering, 
unusually  high  cost  of  material, 
rascality  on  the  part  of  those  en- 
gaged in  the  construction  or  man- 
agement of  the  property.  These 
and  many  other  things,  as  is  well 
known,  are  factors  which  have 
largely  entered  into  the  investments 
with  which  many  railroad  proper- 
ties stand  charged.  Now,  if  the. 
public  was  seeking  to  take  title  to 
the  railroad  by  condemnation,  the 
present  value  of  the  property  and 
not  the  cost  is  that  which  they 
would  have  to  pay.  In  like  manner, 
it  may  be  argued  that,  when  the 
legislature  assumes  the  right  to  re- 
duce, the  rates  so  reduced  can  not 
be  adjudged  unreasonable  if,  under 
them,  there  is  earned  by  the  rail- 
road company  a  fair  interest  on  the 
actual  value  of  the  property.  It  is 
not  easy  to  always  determine  the 
value  of  railroad  property,  and  if 
there  is  no  other  testimony  in  re- 
spect thereto,  than  the  amount  of 
stocks  and  bonds  outstanding,  or 
the  construction  account,  it  may  be 
fairly    assumed    that    one    or  •  the 


§815 


RAILROADS 


194 


will  not  be  held  a  deprivation  of  the  property  of  such  railroads 
without  due  process  of  law,  even  if  the  total  receipts  from  local 
freight  rates  are  insufficient  to  meet  what  can  properly  be  cast 
as  a  burden  upon  that  particular  form  of  transportation,  where, 
so  far  as  evidence  shows,  the  regulations  can  have  no  other 
effect  than  to  make  the  rates  the  same  as  those  obtaining  gen- 
erally in  the  state. ^*'  A  railroad  company  claiming  that  a  rate 
violates  the  fourteenth  amendment  of  the  Constitution  must 
show  the  cost  of  transportation,  the  amount  of  the  specified  arti- 
cle transported,  and  the  effect  which  the  rate  established  by  the 
commission  will  have  upon  its  income. ^^  A  rate  which  is  not 
sufficient  to  pay  the  costs  of  service  seems  an  unreasonable  one,^^ 
yet  under  some  of  the  decisions  of  the  Supreme  Court  of  the 
United  States  this  may  not  render  it  invalid  if  from  its  total 
receipts  the  company  will  get  a  fair  return  above  operating  and 


other  of  these  represents  it.  and 
computation  as  to  the  compensa- 
tory quality  of  rates  may  be  based 
on  such  amounts.  In  the  cases  be- 
fore us,  however,  there  is  abundant 
testimony  that  the  cost  of  repro- 
ducing- these  roads  is  less  than  the 
amount  of  the  stock  and  bond  ac- 
count, or  the  cost  of  construction 
and  that  the  present  value  of  the 
property  is  not  accurately  repre- 
sented by  either  the  stocks  and 
bonds,  or  the  original  construction 
account.  Nevertheless,  the  amount 
of  money  that  has  gone  into  the 
railroad  property — the  actual  in- 
vestment, as  expressed,  theoretic- 
ally, at  least,  by  the  amount  of 
stocks  and  bonds — is  not  to  be  ig- 
nored, even  though  such  sura  is  far 
in  excess  of  the  present  value." 

'8  Seaboard  Air  Line  R.  Co.  v. 
Florida.  203  U.  S.  261.  21  Sup. 
Ct.  109,  51   L.  ed.  175. 

""  Seaboard  Air  Line  R.  Co.  v. 
Florida,  203  U.  S.  261.  11  Sup. 
Ct.  108,  51  L.  ed.  175. 


ss  In  the  case  of  Clyde  v.  Rich- 
mond &c.  R.  Co.,  57  Fed.  436,  440, 
this  language  was  used:  "The  ques- 
tion in  the  case  under  discussion 
is,  is  this  rate  recently  established 
by  the  respondents,  be  it  a  change 
of  rate  or  a  new  classification,  just 
and  reasonable?  Mr.  Justice  Brew- 
er, while  on  the  circuit  bench,  de- 
fines what  are  just  and  reasonable 
rates,  or  rather  states  what  rates 
are  not  just  and  reasonable.  '.\ 
schedule  of  rates,  when  the  rates 
prescribed  do  not  pay  the  costs  of 
service,  can  not  be  enforced.'  "  Chi- 
cago &c.  V.  Becker,  35  Fed.  883.  In 
another  case  (Chicago  &c.  R.  Co. 
V.  Dey,  35  Fed.  866)  he  enters  into 
an  elaborate  illustration  of  those 
terms.  "When  the  rates  prescribed 
will  not  paj'  some  compensation 
to  the  owners,  then  it  is  the  duty 
of  the  courts  to  interfere,  and  pro- 
tect the  companies  from  such 
rates."  He  defines  "compensa- 
tion" to  mean,  enough  to  pay  costs 
of  service,  fixed  charges  of  interest, 


195 


STATE  RAILROAD  COMMISSIONTIRS 


§815 


other  reasonable  expenses  and  charges. ^°  The  state  cannot  re- 
quire any  person,  artificial  or  natural,  to  render  service  without 
receiving  in  return  the  cost  of  the  service,  since  that  would  be 
to  deprive  such  person  of  property  without  compensation,  but  it 
may  be  that  this  principle  does  not  prevent  an  unremunerative 
rate  as  to  a  particular  part  of  the  service  where  the  service  is 
properly  remunerative  as  an  entirety,  and,  in  any  event,  we 
suppose  that  if  the  company,  by  its  own  fault  or  wrong,  increases 
the  costs  of  service  beyond  that  which,  if  there  were  no  wrong, 
would  be  the  actual  cost,  it  cannot  be  heard  to  say  that  the  rate 
established  is  unreasonable  because  less  than  the  cost  of  service. 
We  think  that  when  the  courts  speak  of  the  costs  of  the  service 
they  must  mean  such  costs  as  are  incurred  in  the  good  faith  con- 
duct and  management  of  the  business.  If,  for  instance,  extrava- 
gant and  unreasonable  salaries  are  paid  to  officers  they  could  not, 
as  we  conceive,  be  justly  considered  in  determining  the  costs  of 
service,  but  if  the  salaries  were  paid  in  good  faith,  and  were  not 
palpably  beyond  reason,  they  may  justly  be  regarded  as  part  of 


and  a  dividend  however  small.  See 
Interstate  Commerce  Commission 
V.  Union  Pac.  R.  Co.,  222  U.  S. 
541,  32  Sup.  Ct.  108,  56  L.  ed.  308; 
Northern  Pac.  R.  Co.  v.  North  Da- 
kota, 236  U.  S.  585,  35  Sup.  Ct.  429, 
59  L.  ed.  735,  Ann.  Cas.  1916A,  1; 
Norfolk  &c.  R.  Co.  v.  Conley,  236 
U.  S.  605,  35  Sup.  Ct.  437,  59  L.  ed. 
745;  Chicago  &c.  R.  Co.  v.  Tomp- 
kins, 176  U.  S.  167,  20  Sup.  Ct.  336. 
44  L.  ed.  417;  Tilley  v.  Savannah 
&c.  R.  Co.,  5  Fed.  641;  Chicago  &c. 
R.  Co.  V.  Becker,  35  Fed.  883;  Chi- 
cago &c.  R.  Co.  v.  Dey,  38  Fed.  656: 
Mercantile  &c.  Co.  v.  Te.xas  &c.  R. 
Co.,  51  Fed.  529;  Public  Service 
Com.  v.  Northern  Cent.  R.  Co.,  122 
Md.  355,  90  Atl.  105;  Penna.  R.  Co. 
v.  County  of  Philadelphia,  220  Pa. 
St.  100,  68  Atl.  676,  15  L.  R.  A. 
(N.  S.)   108. 

89  Minneapolis     &c.     R.     Co.     v. 


Minnesota,  186  U.  S.  257,  22  Sup. 
Ct.  900.  46  L.  ed.  1151;  Interstate 
Consolidated  R.  Co.  v.  Massachu- 
setts, 207  U.  S.  79,  28  Sup.  Ct.  26, 
52  L.  ed.  Ill;  Willcox  v.  Consoli- 
dated Gas  Co.,  212  U.  S.  19,  29  Sup. 
Ct.  192,  53  L.  ed.  382.  But  compare 
West  Virginia  Rate  Cases,  236  U. 
S.  605,  35  Sup.  Ct.  437,  59  L.  ed. 
745;  North  Dakota  Lignite  Coal 
Rate  Cases,  236  U.  S.  585,  35  Sup. 
Ct.  429,  59  L.  ed.  735.  It  has  also 
been  held  that  sleeping  car  service 
may  be  compelled  over  a  branch 
line  even  if  the  patronage  thereon 
does  not  pay  the  cost  of  such  serv- 
ice, unless  it  is  shown  that  the  pa- 
tronage received  after  the  car 
reaches  the  main  line  does  not 
make  up  the  deficiency.  State  ex 
rel.  Missouri  Pac.  R.  Co.  v.  Atkin- 
son, 269  Mo.  634,  192  S.  W.  86,  L. 
R.  A.  1918A,  46. 


5n  S16  •  RAILROADS  196 

such  costs.  Here,  again,  we  come  to  tlie  point. where  general 
rules  cannot  be  safely  laid,  down,  for  it  is  manifest  that,  what  is 
or  is  not  a  palpably  unreasonable  salary  must  be  determined  from 
the  facts  of  the  particular  case.  The  question  as  to  the  elements 
to  be  considered  in  determining  the  reasonableness  of  rates  will 
be  further  considered  when  we  come  to  treat  of  rate  regulation 
and  the  interstate  commerce  law.^" 

§816  (693a).  Tariff  of  rates — Discrimination  in  intrastate 
rates. — State  railroad  commissions  have  the  power:  to  prevent 
discrimination  in  rates  by  making  the  rate  in  favor  of  certain 
shippers  of  a  commodity,  in  a  proper  case,  the  rate  to  all  shippers 
of  the  same  article.  In  a  case  where  a  low  rate  to  a  point  in  the 
state  was  given  shippers  of  a  certain  city,  receiving  grain  from 
points  outside  the  state,  and  the  state  railroad  commission  had 
made  this  rate  a  flat  rate  to  all  shippers  of  grain  between  the  two 
points,  the  Supreme  Court  of  the  United  States,  in  a  decision 
sustaining  this  action,  said:  "Even  if  a  state  may  not  compel  a 
railroad  company  to  do  business  at  a  loss,  and  conceding  that  a 
railroad  company  may  insist,  as  against  the  power  of  the  state, 
upon  the  right  to  establish  such  rates  as  will  afford  reasonable 
compensation  for  the  services  rendered,  yet,  when  it  voluntarily 
establishes  local  rates  for  some  shippers,  it  cannot  resist  the 
power  of  the  state  to  enforce  the  same  rates  for  all.  The  state 
may  insist  upon  equality  as  between  all  its  citizens,  and  that 
equality  cannot  be  defeated  in  respect  to  any  local  shipments  by 
arrangements  made  with  or  to  favor  outside  companies."®^ 

90  A   valuable    decision    upon    the  108,  25    I..  R.  A.  (N.  S.)    1001,  and 

subject  of   the   reasonableness   and  48  L.  R.  A.  (N.  S.)    1196. 

basis  for  determining  it  in  regard  si  Alabama  &c'.  R.  Co.  v.  Missis- 

to  intrastate  rates,  is  found  in  the  sippi     Railroad     Commission,     203 

recent   Minnesota   Rate    Cases,  230  U.    S.   496,   27   Sup.    Ct.    163,   51    L. 

U.  S.  352,  33  Sup.  Ct.  729,  57  L.  ed.  ed.  289.  See  also  Seaboard  Air  Line 

1511,   where  prior  decisions  of  the  Co.    v.    Florida,   203   U.    S.   261,   27 

sam.e  court  are  carefully  reviewed,  Sup.   Ct.    109,   51    L.  ed.   175.     And 

and  the  question  as  to  when   such  compare  Texas  &c.  R.  Co.  v.  U.  S., 

legislation  interferes  with  interstate  205  Fed.  380  (holding  an  intrastate 

commerce  is  also  considered.     See  rate    invalid    as    discriminating    in 

also  notes   in    15    T..   R.' A.   (N.   S.)  favor  of  the   state   and   as   again?t 


l!)i 


STATE    RAILROAD  COAnF ISSIONERS 


§817 


§817  (694).  Stations — Power  to  order  company  to  provide. 
— The  question  as  to  the  power  of  a  railroad  commission  to  order 
a  railroad  company  to  provide  new  or  additional  stations  is  not 
free  from  difficulty.  It  is  undoubtedly  within  the  power  of  the  leg- 
islature to  authorize  the  commission  to  require  railroad  com- 
panies to  provide  reasonable  facilities  for  receiving  or  discharg- 
ing traffic,  as  well  as  reasonable  accommodations  for  passen- 
gers.^- But  we  do  not  believe  that  the  commission  can  be  in- 
vested with  power  to  arbitrarily  require  a  company  to  provide 
■stations  wherever  the  commission  may  deem  necessary,  where 
it    is    not    in    fact    necessary    and    would    not    pay.    although 


cities  of  other  states).  Before  an 
order  for  joint  rates  should  be 
made  under  the  Indiana  statute,  it 
must  be  shown  that  it  will  benefit 
the  shipping  public  and  not  merely 
the  railroad.  Indiana  Harbor  &c. 
R.  Co.  V.  Public  Service  Com. 
(Ind.).  121  N.  E.  540:  Chicago  &c. 
R.  Co.  v.  Public  Service  Com. 
(Ind.),  121  N.  E.  276. 

92  Southeastern  &c.  R.  Co.  v. 
Railroad  Comrs.,  3  Nev.  &  Mac. 
464,  L.  R.  6  Q.  B.  D.  586;  Com- 
monwealth V.  Eastern  R.  Co..  103 
Mass.  254,  4  Am.  Rep.  555;  Rail- 
road Commissioners  v.  Portland 
&c.  R.  Co.,  63  Maine  269,  18  Am. 
Rep.  208;  State  v.  Kansas  City  &c. 
R.  Co.,  32  Fed.  722.  See  Northern 
Pacific  &c.  R.  Co.  v.  Territory,  142 
U.  S.  492,  12  Sup.  Ct.  283,  35  L.  ed. 
1092,  48  Am.  &  Eng.  R.  Cas.  475: 
Texas  &c.  R.  Co.  v.  Marshall,  136 
U.  S.  393,  10  Sup.  Ct.  846,  34  L.  ed. 
385,  42  Am.  &  Eng.  R.  Cas.  637; 
St.  Louis  &c.  Ry.  Co.  v.  Bellamy. 
113  Ark.  384,  169  S.  W.  322,  L.  R. 
.\.  191 5D,  91,  and  note;  People  v. 
Chicago  &c.  R.  Co..  130  111.  175, 
22  N.  E.  857;  Mobile  &c.  R.  Co.  v. 


People.  132  111.  559,  24  N.  E.  643 
22  Am.  St.  556,  42  Am.  &  Eng.  R 
Cas.  671;  State  v.  Alabama  &c.  Co. 
68  Miss.  653.  9  So.  469,  50  Am.  & 
Eng.  R.  Cas.  14;  Town  of  Emery 
v.  Chicago  &c.  Ry.  Co.,  39  S.  Dak 
334,  164  N.  W.  108.  And  compare 
State  V.  Wabash  &c.  R.  Co.,  83  Mo 
144,  25  Am.  &  Eng.  R.  Cas.  133 
State  v.  Kansas  City  &c.  R.  Co.. 
32  Fed.  722;  State  v.  New  Haven 
&c.  R.  Co.,  43  Conn.  351;  Florida 
&c.  Co.  v.  State,  31  Fla.  482.  13  S... 
103,  20  L.  R.  A.  419,  56  Am.  &  Eng. 
R.  Cas.  306;  Cunningham  v.  Board 
of  Railroad  Comrs.,  158  Mass,  104. 
32  N.  E.  959,  56  Am.  &  Eng.  R. 
Cas.  301.  See  also  ante,  §  775.  The 
public  service  commission  in  Okla- 
homa may  prescribe,  where  the  or- 
der is  reasonable  and  just,  the  kind 
of  material  to  be  used  in  the  con- 
struction of  a  depot.  Chicago  &c. 
R.  Co.  V.  State  (Okla.),  168  Pac. 
239,  L.  R.  A.  1918C,  492,  P.  U.  R. 
1918A.  587.  See  also- State  v.  Great 
Northern  R.  Co.,  135  Minn.  19,  159 
N.  W.  1089,  P.  U.  R.  1917B,  41: 
Gnlf  &c.  R.  Co.  V.  State  (Tex.  Civ. 
App.),  167  S.  W.  192. 


e  817  RAILROADS  198 

some  of  the  decisions  go  almost  to  that  extent.®^  We 
believe  that  the  decisions  which  adjudge  that  the  legis- 
lature cannot  fix  rates  so  low  as  to  deprive  railroad 
companies  of  reasonable  remuneration  for  carrying  freight  and 
passengers  support  our  conclusion.  We  do  not  believe  that 
railway  commissioners  can  rightfully  be  invested  with  the  con- 
trol of  a  railroad,  and  this  would  be  the  practical  effect  of  holding 
that  railroad  commissioners  may  compel  railroad  companies  to 
provide  stations  at  all  points  the  commissioners  might  select. 
Our  judgment  is  that  the  only  power  that  the  legislature  can 
liestow  upon  a  commission  is  the  power  to  regulate,  and  tliat  it 
cannot,  under  the  guise  of  conferring  power  to  regulate,  take 
the  control  of  a  railroad  from  its  owner  and  vest  it  in  a  board  of 
commissioners.  If  it  be  affirmed  that  a  railway  commission  may, 
at  its  own  uncontrolled  pleasure,  order  a  company  to  provide 
stations,  the  result  will  be  that  the  commission  may  so  burden  a 
company  as  to  destroy  its  ability  to  earn  reasonable  compensa- 
tion for  the  duties  and  services  it  performs.  We  do  not  mean 
to  be  understood  as  affirming  that  broad  and  comprehensive 
powers  may  not  be  conferred  upon  a  railway  commission,  nor 
that  such  a  body  may  not  be  empowered  to  compel  railroad  com- 
panies to  provide  stations  where  they  are  required  by  the  public 
interest,  but  we  do  believe  that  an  arbitrary  power  to  compel  rail- 
road companies  to  establish  stations  wherever  it  may  be  the 
pleasure  of  the  commissioners  to  locate  them  cannot  be  right- 
fully conferred  upon  a  railway  commission.  It  seems  to  us  that 
there  is  a  limit  to  the  right  to  regulate,  and  that  this  limit  cannot 
be  passed  without  violating  the  constitution.  It  seems  to  us, 
also,  that  there  must  be  a  reasonable  necessity  for  the  establish- 
ment of  a  station  in  order  to  warrant  the  commission  in  com- 
pelling a  railroad  company  to  establish  it.^*  Whether  there  is 
such  a  necessity  is  a  matter  to  be  determined  after  a  hearing,  and 
not  summarily  or  arbitrarily.  Doubtless  the  courts  would  be 
reluctant  to  overthrow  the  decision  of  the  commission  as  to  the 
necessity  for  a  station,  but,  nevertheless,  if  it  clearly  and  satis- 

03  See  also  ante,  §  804.  and    authorities    cited    in    next    fol- 

o<  See    Louisiana    &c.    R.    Co.    v.       lowing  note. 
State,  85    Ark.    12.    106   S.   W.  960, 


199 


STATE   RAILROAD  COMMISSIONERS 


§818 


factorily  appears  that  there  was  no  such  necessity,  the  courts 
would  not  hesitate  to  review,  and,  if  need  be,  reverse  the  decision 
of  the  commissioners.^^  Thus,  in  a  recent  decision,  the  Supreme 
Court  of  Mississippi  held  that  the  statute  authorizing  the  railroad 
commission  to  designate  the  location  of  station  houses,  in  cases 
where  the  site  selected  by  the  railroad  was  inconvenient,  did  not 
give  the  commission  power  to  maintain  in  one  town  two  detached 
depots,  one  for  freight  and  one  for  passengers.^" 

§  818.  Naming  stations. — Railroad  commissioners  are  gener- 
ally given  authority  in  regard  to  most  matters  relating  to  railroad 
stations  and  their  orders,  while  reviewable,  will  not  be  set  aside 
unless  clearly  unreasonable  or  unjust.^'  Among  other  things, 
they  often  have  authority  over  the  naming  of  stations  and  may 
require  the  name  to  be  changed  in  a  proper  case,  but  the  naming 
of  a  station  by  the  railroad  company  should  not  be  interfered 


9=5  State  V.  Des  Moines  &c.  R. 
Co.,  87  Iowa  644,  54  N.  W.  461. 
In  the  case  cited  the  court  reversed 
the  order  of  the  commissioners, 
saying,  among  other  things :  "There 
is  nothing  in  the  case  which  tends 
to  show  that  the  managers  of  the 
road  had  any  intention  to  deprive 
any  one  of  proper  facilities  for 
transacting  business  with  the  com- 
pany. The  income  of  the  road  did 
not  warrant  the  maintenance  of 
extensive  stations,  but  demanded 
the  strictest  economy.  It  w-as 
thought  by  the  management  that, 
by  establishing  two  stations  at 
points  nearer  the  junction  of  the 
other  roads  named,  the  defendant 
would  be  able  to  control  more  traf- 
fic, b}'  being  nearer  to  the  inhab- 
itants residing  in  the  vicinity  of 
Osceola  and  Van  Wert.  It  appears 
to  us  that  the  owners  of  the  road 
should  not  be  interfered  with  in 
the  management  of  their  property, 


including  the  location  of  their  sta- 
tions, where,  as  in  this  case,  there 
is  no  competent  evidence  that  any 
patron  of  the  road  has  been  de- 
prived of  reasonable  facilities  for 
transacting  business  with  the  de- 
fendant." 

96  State  V.  Yazoo  &c.  R.  Co.,  87 
Miss.  679,  40  So.  263.  See  also 
Chicago  &c.  R.  Co.  v.  Nebraska 
State  R.  Com.,  85  Nebr.  818,  124 
N.  W.  477,  26  L.  R.  \.  (N.  S.)  444, 
and  note,  to  the  effect  that  the 
question  as  to  whether  it  will  pay 
is  to  be  considered  and  the  order 
will  not  be  upheld  if  unreasonable, 
but  the  cost  is  not  the  sole  consid- 
eration. For  order  to  construct 
new  passenger  depot  held  unrea- 
sonable, see  State  ex  rel.  Wabash 
Ry.  Co.  v.  Public  Service  Com., 
271  Mo.  155.  196  S.  W.  369. 

97  Railroad  Com.  of  Ala.  v. 
North  Ala.  R.  Co.,  182  Ala.  357,  62 
So.  749. 


§  819  RAILROADS  200 

with  when  the  public  good  does  not  require  such  interference, 
and  an  unreasonable  order  in  that  respect  will  not  be  sustained 
by  the  courts."^ 

§  819.  Switching  charges. — Railroad  companies  as  carriers  en- 
gaged in  a  public  service  are  subject  to  regulation  in  regard  to 
switching  charges  as  well  as  in  other  respects,**^  and  it  is  held 
that  when  a  company  assumes  to  perform  such  switching  serv- 
ices it  is  subject  to  such  regulations  even  though  the  particular 
switching  service  is  one  which  the  carrier  would  not  be  bound 
to  perform.^  Thus,  the  Illinois  railroad  and  warehouse  commis- 
sion has  been  held  to  have  jurisdiction  over  the  charges  of  a 
common  carrier  for  switching  cars,  "regardless  of  whether  it  can 
compel  a  carrier  to  perform  a  service  without  compensation  or 
whether  the  law  compels  a  carrier  to  send  its  cars  upon  the  tracks 
of  another  road."^  Such  charges  are  generally  made  by  a  flat 
rate  per  car  and  the  services  are  local  and  usually  independent, 
and  it  has  been  held  that  they  are  to  be  considered  by  themselves 
in  determining  their  reasonableness  rather  than  in  connection 
with  the  through  charge.^  But  it  has  also  been  held  that  a 
switching  company,  though  operating  locally,  is  an  instrumen- 
tality of  interstate  commerce  when  switching  cars  containing 
freight  in  interstate  transit.* 

§820  (695).  Procedure  before  the  commissioners. — The  pro- 
cedure in  matters  brought  before  a  board  of  commissioners  is 
so  much  a  matter  of  statutory  or  local  regulation  that  general 
rules  cannot  be  safely  stated.  It  seems  to  us  that,  even  in  the 
absence  of  statutory  provisions  requiring  it,  the  board   should 

98  Missouri  &c.  R.  Co.  v.  State,  &c.  R.  Co.  v.  Commonwealth,,  103 
25   Okla.   437,   106   Pac.   858;    State       Va.  289,  49  S.  E.  39. 

V.    Railroad    Com.,    69    Wash.    523,  -  Railroad   &c.   Com.  v.  Vandalia 

125  Pac.  953,  Ann.  Cas.  1914A,  830.       R.  Co.,  258  111.  397,  101  N.  E.  600, 

99  Railroad  &c.  Com.  v.  Vandalia       Ann.  Cas.  1914B,  363. 

R.  Co.,  258  111.  397,  101  N.  E.  600,  ^  interstate    Commerce    Com.    v. 

Ann.  Cas.  1914B,  363;  Kansas  City  Stickney,  215  U.  S.  98,  30  Sup.  Ct. 

So.  R.  Co.  V.  Rosebrook  &c.  Grain  66,  54  L.  ed.  112. 

Co.  (Tex.  Civ.  App.),  114  S.  W.  436.  •«  United    States    v.    Union    Stock 

1  State  V.  Atlantic  Coast  Line  R.  Yds.  &c.  Co.,  226  U.  S.  286,  33  Sup. 

Co.,  59  Fla.  612,  52  So.  4;  Norfolk  Ct.  83,  57   L.   ed.  226.     A   general 


201  STATE  R.Viir.ROAD   COMMISSIONERS  §  820 

make  a  record  of  its  proceedings,  since  it  is  implied  in  the  manner 
of  its  organization  and  the  object  for  which  it  was  organized  that 
it  shall  act  as  a  board  and  put  its  proceedings  on  record.^  It  is 
probably  not  necessary  unless  so  required  by  statute  to  keep  a 
regular  and  formal  record,  such  as  is  kept  by  a  court,  but  there 
should  be  such  a  written  record  of  the  proceedings  as  can  be 
used  as  an  instrument  of  evidence.  It  has  been  held  that  the 
commissioners  may  proceed  without  a  petition  or  complaint,  and 
this,  we  suppose,  is  true  where  there  is  no  statute  requiring  the 
filing  of  a  written  petition,  application,  or  complaint.^  It  is  com- 
petent for  the  commissioners  to  make  reasonable  rules  and  regu- 
lations governing  matters  of  procedure,  but  they  cannot,  of 
course,  rightfully  adopt  rules  or  regulations  which  are  in  conflict 
with  the  rules  of  law.^  Authority  to  adopt  and  enforce  rules  and 
regulations  is  implied  from  the  grant  of  power  to  hear  and  de- 
termine. The  object  and  purpose  being  specified,  the  authority 
to  efifect  that  object  and  carry  into  effect  that  purpose  necessarily 
carries  the  incidental  authority  to  adopt  appropriate  and  rea- 
sonable means  for  accomplishing  the  object  for  which  the  board 
was  created.  It  seems  to  us  that  there  must  be  notice,  at  least 
as  to  some  matters,  for  without  notice  the  interested  parties  are 
deprived  of  their  right  without  such  a  hearing  as  due  process  of 

regulation  of  switching  charges  by  ders   as    the   case   may  require,   ir- 

a    state    railroad    commission    will  respective    of   the   relief   asked   for 

usually  be   construed,   however,   as  in    the   petition.      Southern    R.    Co. 

applying  only  to  cars  in  intrastate  v.   Railroad   Com.,  42  Ind.  App.  90, 

transit.       Chicago    &c.    R.    Co.    v.  83    N.    E.    721.      And    the    rules    of 

Railroad    Com.,    175    Ind.    630,    95  evidence  are  not  strictly  applied  as 

N.  E.  364.  they  are  in  actions  between  private 

5  State  V.  Chicago  &c.  R.  Co.,  86  parties.  Interstate  Com.  Com.  v. 
Iowa  642,  S3  N.  W.  2,2Z;  Boston  Baird,  194  U.  S.  25,  24  Sup.  Ct.  563, 
&c.    Co.    V.    Nashua    &c.    Co.,    157  48  L.  ed.  860. 

Mass.  258,  31  N.  E.  1067.  7  Atlantic  &c.  Co.  v.  Wilmington 

6  State  V.  Chicago  &c.  R.  Co.,  86  &c.  R.  Co.,  Ill  N.  Car.  463,  16  S.  E. 
Iowa  642,  53  N.  W.  323,  55  Am.  &  393,  18  L.  R.  A.  393,  32  Am.  St. 
Eng.  R.  Cas.  487.  But  see  Boston  805,  55  Am.  &  Eng.  R.  Cas.  498. 
&c.  Co.  V.  Nashua  &c.  Co.,  157  See  also  Southern  Ind.  R.  Co.  v. 
Mass.  258,  31  N.  E.  1067.  Strict-  Railroad  Com..  172  Ind.  113,  87 
ness  of  pleading  is  not  required  and  N.  E.  966. 

the  commission   mav  frame  its  or- 


§821 


RAILROADS 


202 


law  requires  that  they  should  have.^  It  has  beeu  held  that  notice 
of  the  official  action  of  the  board  of  commissioners,  given  by  its 
secretary  in  response  to  a  telegram  of  a  party  interested  in  and 
affected  by  its  decision,  is  binding  upon  the  board.°  We  suppose, 
however,  that,  as  a  rule,  the  board  is  not  bound  by  the  action  of 
its  secretary  or  by  any  individual  action,  but  that  it  is  bound 
where  the  facts  or  circumstances  are  sufficient  to  authorize  the 
inference  that  he  acted  as  its  representative.  It  is  held  in  an 
English  case  that  commissioners  have  no  authority  to  compel 
a  railroad  company  to  pay  costs  of  a  petitioner  whose  petition 
is  denied." 

§  821  (696).  Effect  of  the  decision  of  the  commissioners  that 
a  company  has  not  committed  an  act  authorizing  a  forfeiture. — 
It  has  lieen  held  by  the  Court  of  Appeals  of  New  York  that,  as 


8  See  State  v.  Chicago  &c.  R.  Co.. 
16  S.  Dak.  517,  94  N.  W.  406;  In- 
terstate Com.  Com.  v.  Louisville 
&c.  R.  Co.,  227  U.  S.  88,  33  Sup. 
Ct.  185,  57  L.  ed.  431;  Farmers 
Elevator  Co.  v.  Chicago  &c.  Ry. 
Co.,  266  111.  567,  107  N.  E.  841; 
Business  Men's  Assn.  v.  Chicago 
&c.  R.,  2  Int.  Com.  Rep.  48; 
Central  of  Georgia  Ry.  v.  Geor- 
gia R.  R.  Com.,  215  Fed.  421; 
Oregon  R.  &c.  Co.  v.  Fairchild, 
224  U.  S.  510,  32  Sup.  Ct.  535, 
56  L.  ed.  863.  It  is  said,  how- 
ever, that  in  rate  regulation  "the 
notice  and  hearing  essential  in 
judicial  proceedings,  and,  for  pe- 
culiar reasons,  in  some  forms  of 
taxation,  would  not  seem  to  be  in- 
dispensable." Home  T.  &c.  Co.  v. 
Los  Angeles,  211  U.  S.  265,  29  Sup. 
Ct.  50,  54,  53  L.  ed.  176.  Compare 
also  Manufacturers  Light  &c.  Co. 
V.  Ott,  215  Fed.  940. 

8  Chicago  &c.  R.  Co.  v.  Dey,  35 
Fed.  866,  1  L.  R.  A.  744.  In  the 
case  cited  it  was  said:  "It  is  in- 
sisted by  the   defendants  that  this 


actiriii  was  taken,  not  by  the  board, 
but  bj^  one  commissioner  acting 
independently,  the  others  not  con- 
senting or  being  aware  of  the  ac- 
tion. Upon  this  matter  there  was 
considerable  discussion,  both  as  to 
the  sufficiency  of  the  notice,  the 
number  of  times  publication  was 
required,  the  fact  of  the  two  pub- 
lications of  the  notice,  the  power 
of  one  commissioner  to  make  the 
change,  etc.  I  deem  it  unneces- 
sary to  consider  these,  nor  do  I  ex- 
press any  opinion  upon  the  rights 
of  any  other  corporations  than  the 
four  who  united  in  the  telegram  to 
defendants.  An  official  board  acts 
through  its  secretary.  This  com- 
plainant, with  others,  addressed  an 
(.tTicial  communication  to  the  board. 
Tt  received  an  answer  in  the  regu- 
lar way,  one  signed  by  the  secre- 
tary as  secretary.  Equity  and  good 
faith  forbid  going  behind  such  no- 
tification." 

If"  Foster    v.    Great    Western    &c. 
R.  Co.,  L.  R.  8  Q.  B.  D.  515. 


208 


STATE   RAILROAD   COMMISSIONERS 


§822 


against  the  state,  the  certificate  of  the  board  of  railroad  commis- 
sioners that  the  public  interests  do  not  require  the  extension  of 
a  road  is  conclusive,  and  constitutes  a  complete  defense  to  an 
action  to  forfeit  the  charter  for  failure  to  build  the  road."  The 
decision  goes  very  far.  and  seems  to  trench  upon  the  rule  that 
ministerial  officers  cannot  be  clothed  with  judicial  power.  There 
is.  however,  force  and  vigor  in  the  reasoning  of  the  court. 

§822  (697).  Enforcing  the  orders  of  the  commissioners — 
Generally. — Where  the  commissioners  have  jurisdiction  to  make 
an  order,  and  they  do  make  a  valid  order  upon  due  process  of 
law.  the  courts  will,  upon  proper  application,  compel  compliance 
with  it.     The  legislature,  in  conferring  authority  upon  railroad 


1^  People  V.  Ulster  &c.  R.  Co., 
128  N.  Y.  240,  28  N.  E.  635.  The 
court  said  in  the  course  of  the 
opinion  that:  "By  this  enactment 
the  state  lias  indicated  in  the  most 
imperative  form  its  will  in  respect 
to  such  actions.  It  thereby  de- 
clared that  the  certificate  of  the 
railroad  commissioners  to  the  ef- 
fect that  no  public  interests  were 
involved  should  thereafter  be  a 
conclusive  answer  to  any  attempt 
to  annul  the  existence  of  a  reor- 
ganized railroad  corporation  for  a 
failure  to  make  an  extension  of  its 
road.  By  this  act  the  state  de- 
volved upon  the  railroad  commis- 
sioners the  duty,  previously  per- 
formed by  its  attorney-general,  of 
inquiring  whether  the  public  inter- 
ests required  it  to  enforce  an  al- 
leged forfeiture  against  a  reorgan- 
ized railroad  corporation,  and  nec- 
essarily thereby  deprived  other  de- 
partments of  the  government  of 
the  power  of  determining  the  pre- 
liminary question  upon  which  the 
action  of  the  state  in  instituting 
and  prosecuting  such  actions  must 


be  founded.  By  leaving  to  another 
department  of  the  state  the  deter- 
mination of  a  question  upon  which 
its  own  action  was  thereafter  to  be 
controlled,  it  neither  delegated  leg- 
islative power  to,  or  conferred  ju- 
dicial functions  upon,  such  depart- 
ment. It  simply  institutes  an  ex 
parte  inquirj-  to  determine  its  own 
future  action,  as  had  been  the  uni- 
form practice  of  the  state  govern- 
ment for  many  previous  years.  The 
question  whether  the  public  inter- 
ests are  involved  is  always  a  con- 
dition precedent  to  the  right  of 
maintaining  any  action  by  the  at- 
torney-general for  the  forfeiture  of 
corporate  rights,  and  the  state  by 
this  act  says  that  it  will  hereafter 
leave  this  question  in  certain  cases 
to  railroad  commissioners  to  de- 
termine, instead  of  to  the  attorney- 
general,  by  whom  it  had  thereto- 
fore been  decided.  In  other  words 
it  has  made  the  railroad  commis- 
sioners' certificate  conclusive  evi- 
dence of  the  non-existence  of  any 
sufficient   ground   of  forfeiture." 


§822 


RAILKOADS 


204 


commissioners,  impliedly  grants,  as  we  believe,  a  right  to  suc- 
cessfully invoke  the  aid  of  the  courts  to  make  the  order  effective. 
To  hold  otherwise  would  be,  in  effect,  to  adjudge  that  the  orders 
of  the  commissioners  are  mere  empty  declarations,  without 
force  or  effect.  If  the  statute  gives  a  right  there  must  be  a 
remedy,  for  the  existence  of  a  right  implies  the  existence  of  a 
remed}-.  If  a  right  is  given,  and  no  specific  remedy  is  provided, 
then  the  courts  will  enforce  the  right  by  the  appropriate  remedy. 
A  statute  does  not  stand  alone,  detached  and  isolated  from  other 
statutes,  or  other  rules  of  law,  but  takes  its  place  as  part  of  a 
uniform  system  of  law.^-  It  is  aided  by  other  statutes  and  by  the 
recognized  rules  of  \z\v,  and  to  give  it  force  and  effect  other 
statutes  and  the  general  rules  of  law^  ma}'  be  considered  and 
applied.  The  general  rule  is  that  where  a  new  right  is  created 
and  no  remedy  provided  the  courts  will  enforce  the  right  by 
means  of  the  appropriate  remedy.  If  the  remedy  be  in  equity, 
then  the  right  may  be  enforced  by  the  appropriate  suit  in  equity ; 
if  the  remedy  be  at  law,  then  by  the  proper  action.^^  The  consti- 
tution of  Louisiana  has  been  held  to  give  the  commissions  of  that 


1-  Humphries  v.  Davis,  100  Ind. 
274,  50  Am.  Rep.  788;  Rushvillc 
&c.  Co.  V.  Rushvillc,  121  Ind.  206, 
213,  23  N.  E.  72,  6  L.  R.  A.  315,  16 
Am.  St.  388,  and  cases-  cited;  Hy- 
land  V.  Brazil  &c.  Co.,  128  Ind. 
335,  341,  26  N.   E.  672. 

13  This  principle  is  strikingly'  il- 
lustrated by  the  cases  which  hold 
that  where  a  state  statute  creates 
a  right  the  federal  courts  will  en- 
force it  by  means  of  the  remedy 
which,  by  the  rules  of  those  courts, 
is  the  appropriate  one.  Fitch  v. 
Creighton,  24  How.  (U.  S.)  159,  16 
L.  ed.  596;  Clark  v.  Smith,  13  Pet. 
(U.  S.)  195,  10  L.  ed.  123:  Holland 
V.  Challen,  110  U.  S.  15,  3  Sup.  Ct. 
495,  28  L.  ed.  52.  See  also  Tift  v. 
Southern  R.  Co.,  123  Fed.  789.  But 
compare  Knapp  v.  Lake  Shore  &c. 
R.  Co.,  197  U.  S.  536,  25  Sup.  Ct. 


R.  538,  49  L.  ed.  870.  While  rail- 
roads are  under  federal  control  as 
a  war  measure,  the  state  courts 
would  not  attempt  to  enforce  an 
order  of  the  state  railroad  com- 
missioners requiring  the  construc- 
tion of  a  connecting  track.  Com- 
mercial Club  V.  Chicago  &c.  Ry. 
Co.  (S.  Dak.),  170  N.  W.  149.  And 
it  has  been  held  that  there  is  no 
remedy  by  mandamus  or  other  ju- 
dicial proceedings  where  the  stat- 
ute makes  no  provision  for  enforc- 
ing the  order  of  the  commission. 
State  V.  INIissouri  Pac.  R.  Co.,  55 
Kans.  708,  41  Pac.  964,  29  L.  R.  A. 
444:  People  v.  New  York,  104  N.  Y. 
58,  9  N.  E.  856,  58  Am.  Rep.  484. 
Nearly  all,  if  not  all,  statutes  now 
provide  for  enforcement  of  the  or- 
der by  the  courts. 


205 


STATE  RAILROAD  COMMISSIONERS 


§82? 


state  authority  to  impose  a  penalty  for  a  violation  of  its  orders, 
subject,  of  course,  to  review  by  the  courts. ^"^ 

§823  (698).  Enforcing  the  orders  of  the  commissioners — 
Mandamus. — Where  there  is  no  other  remedy  provided  In-  statute 
and  no  other  adequate  common  law  remedy,  we  can  see  no  reason 
why  the  valid  and  imperative  orders  of  a  board  of  railroad  com- 
missioners may  not  be  enforced  by  mandamus.  The  grant  of 
authority  to  the  commissioners  to  make  orders  gives  to  their 
orders  a  legal  force  and-efifect  sufficient  to  impose  upon  the  rail- 
road company  a  specific  and  imperative  duty.  There  must,  of 
course,  be  jurisdiction,  the  order  must  be  made  in  due  course  of 
law,  and  must  be  specific  and  mandatory. ^^  It  has  been  held  that 
where  the  railroad  commissioners  have  jurisdiction  to  order  the 
location  of  a  station,  and  an  imperative  order  is  made  locating  a 


1^  Railroad  Commission  v.  Kan- 
sas City  &c.  R.Co..  Ill  La.  133,  35 
So.  487. 

15  Mandamus  will  lie  to  enforce 
obedience  to  the  requirements  of 
the  ordinances  of  the  governing 
bodies  of  municipal  corporations, 
county  supervisors  or  commission- 
ers, and  the  like,  and  it  seems  to 
us  that  the  principle's  which  are 
declared  in  cases  of  the  class  men- 
tioned require  the  conclusion  that 
mandamus  will  lie  to  compel  obe- 
dience to  the  orders  of  railroad 
commissioners.  State  v.  Janesville 
&c.  R.  Co.,  87  Wis.  72,  57  N.  W. 
970,  22  L.  R.  A.  759,  41  Am.  St.  23: 
Union  Pacific  R.  Co.  v.  Hall,  91 
U.  S.  343,  23  L.  ed.  428;  People  v. 
Chicago  &c.  R.  Co.,  61  111.  118; 
People  V.  Chicago  &c.  R.  Co.,  130 
III.  175,  22  N.  E.  857;  Indianapolis 
&c.  R.  Co.  V.  State,  Zl  Ind.  489; 
People  V.  Boston  &c.  R.  Co.,  70 
N.  Y.  569;  State  v.  Northeastern 
&c.  R.  Co.,  9  Rich.  (S.  Car.)  247, 
67  Am.  Dec.  551;  Railroad  Comrs. 


V.  Atlantic  &c.  R.  Co.,  71  S.  Car. 
130,  50  S.  E.  641.  In  granting 
power  to  a  board  of  railroad  com- 
missioners to  make  orders,  the 
legislature  authorizes  the  board  to 
do  what  the  legislature  had  it  so 
elected  might  have  directly  done, 
so  that  the  orders  of  the  board 
have  all  the  force  and  efifect  that  a 
statute  could  put  into  the  orders  of 
any  board  of  public  officers.  See, 
generally,  as  to  mandamus  being 
the  proper  remedy,  Railroad  Comrs. 
V.  Wabash  R.  Co..  123  ^lich.  669, 
82  N.  W.  526;  Chicago  &c.  R.  Co. 
V.  Becker,  32  Fed.  849;  Woodruff 
V.  New  York  &c.  R.  Co.,  59  Conn. 
6Z,  20  Atl.  17;  State  v.  Jacksonville 
Terminal  Co.,  41  Fla.  Zll ,  27  So. 
225;  State  v.  Atlantic  Coast  Line 
R.  Co.,  51  Fla.  578,  40  So.  875: 
State  v.  Minneapolis  &c.  R.  Co., 
80  Minn.  191,  83  N.  W.  60,  89  L. 
R.  A.  514:  State  v.  Fremont  &c. 
R.  Co.,  22  Nebr.  313,  35  N.  W.  118: 
Railroad  Comrs.  v.  Atlantic  &c.  R. 
Co.,  71  S.  Car.  130,  50  S.  E.  641. 


S824 


RAILROADS 


206 


station,  the  order  may  be  enforced  by  mandamus.^®  So,  upon  the 
same  general  principle,  it  has  been  held  that,  where  the  commis- 
sioners have  authority  to  order  a  railroad  company  to  construct 
a  crossing,  mandamus  will  lie  to  enforce  obedience  to  the  order.*' 
The  enforcement  of  an  order  made  by  a  board  of  commissioners 
requiring  a  railroad  company  to  conform  to  a  schedule  of  rates 
established  by  the  commissioners,  is  a  matter  of  public  interest, 
and  hence  an  action  is  properly  brought  in  the  name  of  the  state." 

§824  (699).  Mandamus — Enforcing  orders  of  commissioners 
— Illustrative  cases. — In  addition  to  the  cases  referred  to  in  dis- 
cussing the  general  question  of  enforcing  the  orders  of  railroad 
commissioners,  we  refer  to  other  cases  which  illustrate  the  gen- 
eral doctrine.  In  a  Florida  case  it  was  held  that  mandamus  was 
the  appropriate  remedy  to  compel  a  railroad  company  to  comply 
wMth  the  order  of  the  commissioners  requiring  schedules  to  be 
posted,  but  it  was  held  that  the  court  could  not,  in  the  absence 
of  an  order  of  the  commissioners  specifically  prescribing  the  kind 
and  size  of  type  that  should  be  used,  specifically  direct  what  kind 
and  size  of  type  the  company  should  use.*"   In  one  of  the  reported 


18  Railroad  Comrs.  v.  Portland  R. 
Co.,  63  Maine  269.  18  Am.  Rep. 
208.  The  statute  involved  in  the 
case  cited  provided  that  the  com- 
missioners might  apply  to  the 
courts  for  the  enforcement  of  its 
orders. 

1^  State  V.  Chicago  &c.  R.  Co., 
29  Nebr.  412,  45  N.  W.  469,  42  Am. 
&  Eng.  R.  Cas.  248. 

IS  Campbell  v.  Cliicago  &c.  R. 
Co.,  86  Iowa  587,  53  N.  W.  351,  17 
L.  R.  A.  443.  See  generally  as  to 
enforcement  of  such  orders  and 
what  is  a  sufficient  compliance, 
Michigan  R.  R.  Com.  v.  Detroit 
&c.  R.  Co.,  182  Mich.  234.  148  N. 
W.  385.  184  Mich.  242,  150  N.  W. 
861:  Detroit  &c.  Ry.  Co.  v.  Mich. 
R.  R.  Com.,  171  Mich.  335,  137 
N.    W.    329.      The    commission    is 


generally  a  proper  party  to  insti- 
tute mandamus  proceedings  to  en- 
force its  orders.  Note  in  L.  R.  A. 
1918E,  304,  and  illustrative  cases 
already  cited  in  this  section;  but  in 
Indiana  it  is  held  that  the  commis- 
sion is  not  the  real  party  in  inter- 
est and  cannot  institute  such  an 
action  in  its  own  name  or  on  rela- 
tion of  the  state,  but  may  enforce 
its  orders  by  bringing  a  suit  in 
equity.  State  ex  rel.  Public  Serv- 
ice Com.  V.  Vandalia  R.  Co.,  183 
Ind.  49,  108  N.  E.  97,  P.  U.  R. 
1915B,  981,  citing  as  to  the  right  to 
enforce  the  order  by  suit  in  equity, 
Wabash  R.  Co.  v.  Railroad  Com.. 
176  Ind.  428,  95  N.  E.  673. 

li*  State  v.  Pensacola  &c.  R.  Co., 
11  I'la.  403,  9  So.  89,  46  Am.  & 
Eng.  R.  Cas.  704.     In  this  case  the 


207 


STATE   RAILROAD  COMMISSIONERS 


§824 


cases  the  relator  asked  for  a  writ  to  compel  the  railroad  company 
to  locate  a  station  at  a  place  where  1)y  contract  it  had  ag"reed  with 
the  relator  that  it  should  be  located,  but  the  court  denied  the  writ, 
holding  that  a  private  obligation  of  the  nature  of  the  one  relied 
upon  by  the  relator  could  not  be  enforced  by  mandamus.-''  If  the 
duties  required  are  discretionary,  performance  can  not  be  coerced 
by  mandate.-^  Where  the  charter  of  a  railroad  company  expressly 
requires  it  to  build  and  maintain  its  line  to  a  designated  point, 
the  duty  created  is  a  specific  and  imperative  one,  and  its  perform- 
ance may  be  coerced  by  mandamus,^-  and  we  can  see  no  reason 
why  the  rule  laid  down  does  not  apply  to  specific  and  imperative 
orders  made  by  railroad  commissioners  under  legislative  au- 
thority. It  was  held  that,  under  the  Iowa  statute,  which  con- 
ferred authority  upon  the  courts  to  enforce  the  orders  of  the 
board  of  commissioners  by  "equitable  actions"  in  the  "name  of 
the  state,"  mandamus  is  not  the  exclusive  remedy."   We  do  not. 


court  decided  that  schedules  "must 
be  kept  continuously  posted." 

20  Florida  Central  &c.  R.  Co.  v. 
State,  31  Fla.  482,  20  L.  R.  A.  419, 
34  Am.  St.  30,  56  Am.  &  Eng.  R. 
Cas.  306,  citing  State  v.  Paterson 
&c.  R.  Co.,  43  N.  J.  L.  505;  Parrott 
V.  City,  44  Conn.  180,  26  Am.  Rep. 
439. 

21  People  V.  New  York  &c.  R. 
Co.,  104  N.  Y.  58,  9  N.  E.  856,  58 
Am.  Rep.  484;  Northern  Pacific 
R.  Co.  V.  Territory,  142  U.  S.  492. 
12  Sup.  Ct.  283,  35  L.  ed.  1092,  48 
Am.  &  Eng.  R.  Cas.  475,  overrul- 
ing Northern  Pacific  &c.  R.  Co.  v. 
Territory,  3  Wash.  Ten  303,  13 
Pac.  604. 

22  Union  Pac.  R.  Co.  v.  Hall,  91 
U.  S.  343,  23  L.  ed.  428.  See  State 
V.  Hartford  &c.  R.  Co.,  29  Conn. 
538;  New  Orleans  &c.  R.  Co.  v. 
Mississippi,  112  U.  S.  12,  5  Sup.  Ct. 
19,  28  L.  ed.  619;  People  v.  Boston 
&c.  Railroad  Co.,  70  N.  Y.  569.     In 


Northern  Pacific  &c.  R.  Co.,  142 
U.  S.  492,  12  Sup.  Ct.  283,  35  L.  ed. 
1092,  48  Am.  &  Eng.  R.  Cas.  475, 
the  court  approves  the  cases  of 
York  &c.  R.  Co.  v.  Queen,  1  El.  & 
Bl.  858;  Commonwealth  v.'  Fitch- 
burg  R.  Co.,  12  Gray  (Mass.)  180: 
State  V.  Southern  &c.  R.  Co.,  18 
]\Iinn.  40;  Atchison  &c.  R.  Co.  v. 
Denver  &c.  R.,  110  U.  S.  667,  4 
Sup.  Ct.  185,  28  L.  ed.  291:  South 
Eastern  R.  Co.  v.  Commissioners, 
6  Q.  B.  Div.  586,  and  denied  the 
doctrine  of  State  v.  Republican  &c. 
R.  Co.,  17  Nebr.  647,  24  N.  W.  329, 
52  Am.  Rep.  424.  Mandamus  is 
also  held  an  appropriate  remedy  in 
Michigan  R.  R.  Com.  v.  Detroit 
&c.  Ry.  Co.,  182  Mich.  234,  148  N. 
W.  385. 

-'■''  State  V.  Mason  City  R.  Co..  85 
Iowa  516,  52  N.  W.  490,  55  Am.  & 
Eng.  R.  Cas.  73.  See  also  Camp- 
bell V.  Chicago  &c.  R.  Co.,  86  Iowa 
587.  53  N.  W.  351.  17  L.  R.  A.  443. 


^824 


RAILROADS 


208 


however,  understand  the  case  referred  to  as  deciding  that  man- 
damus is  not  an  appropriate  remedy,  but  we  luiderstand  it  as 
simply  deciding  that  mandamus  is  not  the  only  remedy,  although 
it  is  an  appropriate  one.-'*  It  is  held  that  although  a  penalty  is 
prcscril)c(l  for  disobeying  the  orders  of  the  commissioners,  man- 
damus will  lie,-^  but  other  cases  assert  a  different  doctrine.-"  We 
think  that  the  mere  fact  that  a  penalty  is  prescribed  is  not  suffi- 
cient to  defeat  an  application  for  mandamus,  for  the  recovery 
of  a  penalty  may  not  afford  adequate  relief.'^  Where  mandamus 
is  brought  to  enforce  an  order  of  the  railroad  commissioners,  it 
should  appear  on  its  face  to  be  within  their  authority,  and  if  the 
order  contains  a  material  provision  which  does  not  appear  from 
the  alternative  writ  to  be  within  their  powers,  and  such  writ 
commands  a  compliance  forthwith  a  demurrer  thereto  should 
be  sustained. ^^ 


2-1  In  the  case  referred  to  the 
court  said:  "It  was  held  in  Boggs 
V.  Chicago  &c.  R.  Co.,  54  Iowa  435, 
6  N.  W.  744,  that  mandamus  was 
a  proper  remedy  to  such  a  right, 
and  other  cases  have  been  prose- 
cuted by  such  a  proceeding,  but  it 
is  not  held  that  such  a  remedy  is 
exclusive.  It  should  not  be  claimed 
that  but  a  single  remedy  can  be 
available  to  a  party.  The  doctrine 
of  the  election  of  remedies  is  old 
and  familiar."  But  the  rule  is  that 
where  there  is  another  adequate 
remedy  parties  can  not  resort  to 
the  extraordinary  remedy  of  man- 
damus. 

-^  State  V.  Chicago  &c.  R.  Co., 
79  Wis.  259,  48  N.  W.  243,  12  L. 
R.  A.  180.  The  same  court  has 
held  that  a  mandatory  injunction 
will  be  awarded.  Jamestown  v. 
Chicago  &c.  R.  Co.,  69  Wis.  648, 
34  N.  W.  728;  Oshkosh  v.  Milwau- 
kee   &c.    R.    Co.,   74   Wis.    534,    43 


X.  W.  489,  17  Am.  St.  175.  See 
People  v.  Mayor  &c.,  10  Wend. 
(N.  Y.)  393.  Objection  to  the  rem- 
edy must  be  taken  by  answer  or 
demurrer,  or  on  the  trial,  or  it 
will  be  unavailing.  Buffalo  &c.  Co. 
V.  Delaware  &c.  R.  Co.,  130  N.  Y. 
152,  29  N.  E.  121;  Elliott  App. 
Proc,  §§  658,  679. 

26  State  V.  Mobile  &c.  R.  Co.,  59 
Ala.  321;  Railroad  Comrs.  v.  Rail- 
road Co.,  26  S.  Car.  353,  2  S.  £. 
127.  To  authorize  recovery  of  pen- 
alty, order  must  be  specific  in  di- 
recting what  the  company  shall  do. 
State  V.  Alabama  &c.  R.  Co.,  67 
Miss.  647,  7  So.  502.  See  generally 
United  States  v.  Delaware  &c.  R. 
Co.,  40  Fed.  101. 

--  Rex  V.  Barker,  3  Burr.  1265. 
For  additional  illustrative  cases  as 
to  mandamus,  see  note  in  L.  R.  A. 
1918E,  304,  et  seq. 

28  State  v.  Atlantic  &c.  R.  Co.,  51 
Fla.  578,  40  So.  875. 


20f) 


STATE  RAILROAD   COMMISSIONERS 


§825 


§825  (700).  Suits  against  railroad  commissioners  are  not 
ordinarily  suits  against  the  state. — The  settled  general  rule  is 
that  a  suit  can  not  be  successfully  prosecuted  against  a  state 
except  by  its  consent.  This  rule  applies  to  actions  against 
officers  if  the  result  will  be  to  create  a  claim  against  the  state. 
If  the  action  is  actually  against  the  state,  although  nominally 
against  its  officers,  the  suit  cannot  be  maintained.^®  In  one  of 
the  reported  cases  it  was  held  that  so  far  as  the  suit  against  the 
commissioners  sought  to  enjoin  them  from  formulating  a  sched- 
ule it  was  not  a  suit  against  the  state,  but  that  so  far  as  it  sought 
to  enjoin  the  commissioners  from  bringing  a  suit  in  the  name  of 
the  state  to  collect  penalties  it  was  a  suit  against  the  state.^° 
The  general  rule,  however,  as  affirmed  by  the  federal  courts,  and 
it  is  one  resting  on  sound  principle,  is  that  suits  against  railroad 
commissioners  are  not  suits  against  the  state.^^ 

§826  (701).  Remedies  for  illegal  acts  of  railroad  commis- 
sioners.— It  seems  to  us  to  be  clear,  on  principle,  that  where 
railroad  commissioners  exceed  their  jurisdiction,  or  by  wrongful 


29  Louisiana  v.  Jumel,  107  U.  S. 
711,  2  Sup.  Ct.  128,  27  L.  ed.  448; 
Cunningham  v.  Macon  &c.  R.  Co., 
109  U.  S.  446,  3  Sup.  Ct.  292,  609, 
27  L.  ed.  992;  Virginia  Coupon 
Cases,  114  U.  S.  270.  5  Sup.  Ct.  903. 
923,  925,  928,  931,  932,  962,  1020,  29 
L.  ed.  185;  Hagood  v.  Southern, 
117  U.  S.  52,  6  Sup.  Ct.  608,  29  L. 
ed.  805;  Ayers,  In  re,  123  U.  S. 
443,  8  Sup.  Ct.  164,  31  L.  ed.  216: 
Printup  V.  Cherokee  R.  Co.,  45  Ga. 
365;  State  v.  Burke,  33  La.  Ann. 
498;  Weston  v.  Dane,  51  Maine  461 ; 
^loore  V.  Tate,  87  Tenn.  725,  11 
S.  W.  935,  10  Am.  St.  712;  Mar- 
shall V.  Clark,  22  Tex.  23;  Houston 
&c.  R.  Co.  V.  Randolph,  24  Tex. 
317.  See  generally  Baltzer  v.  State, 
104  N.  Car.  265,  10  S.  E.  153;  Lin- 
coln County  V.  Luning,  133  U.  S. 
529,  10  Sup.  Ct.  363,  33  L.  ed.  766. 


30  IMcWhorter  v.  Pensacola  &c. 
R.  Co.,  24  Fla.  417,  5  So.  129,  2 
L.  R.  A.  504,  12  Am.  St.  220. 

31  Reagan  v.  Farmers'  Loan  &c. 
Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047, 
38  L.  ed.  1014,  9  Am.  R.  &  Corp. 
Rep.  641:  Tindal  v.  Wesley,  167 
U.  S.  204,  220,  17  Sup.  Ct.  770,  42 
L.  ed.  137;  Smyth  v.  Ames.  169 
U.  S.  466,  18  Sup.  Ct.  418,  423,  42 
L.  ed.  819;  Railroad  Co.  v.  Ten- 
nessee, 101  U.  S.  337,  25  L.  ed.  960; 
Mississippi  Railroad  Commission 
V.  Illinois  Central  R.  Co.,  203  U.  S. 
335,  27  Sup.  Ct.  90,  51  L.  ed.  209; 
Prout  V.  Starr,  188  U.  S.  537.  23 
Sup.  Ct.  398,  47  L.  ed.  584;  Louis- 
ville &c.  R.  Co.  V.  Burr,  63  Fla. 
491,  58  So.  543,44  L.  R.  A.  (N.  S.) 
189  (reviewing  the  authorities  upon 
the  general  subject  in  note). 


827 


RAILROADS 


210 


acts  invade  the  rights  of  others,  the  parties  may  resort  to  the 
appropriate  remedies  for  a  vindication  of  their  rights,  whether 
those  remedies  be  legal  or  equitable.  If  a  right  be  established 
and  its  wrongful  invasion  shown,  the  courts  will  apply  the  ap- 
propriate remedy. '-  The  proper  remedy  is.  of  course,  to  be  de- 
termined from  the  nature  of  the  case  and  the  character  of  the 
relief  sought ;  but.  given  a  case  where  remediable  rights  are 
shuwn.  the  courts  will  find  a  remedy.  If  an  exclusive  statutory 
remedy  is  given,  that  remedy  must  be  pursued. ■^'^  The  complain- 
ant who  seeks  to  recover  under  the  statute  must  plead  such  facts 
as  bring  his  case  full}-  within  the  statutory  provisions.^* 

§827  (702).  Specific  statutory  remedy — Federal  rule. — The 
general  rule  is  that  where  a  statute  creates  a  new  right  the 
remedy  specifically  provided  must  be  pursued.-'''  The  federal 
courts  do  not,  how^ever,  give  full  effect  to  this  rule,  but  maintain 


32  Murray  v.  Chicago  &c.  R.  Co., 
62  Fed.  24;  Chicago  &c.  R.  Co.  v. 
Osborne,  52  Fed.  912. 

33  Winsor  &c.  Co.  v.  Chicago  &c. 
R.  Co.,  52  Fed.  716;  Young  v.  Kan- 
."^as  City  &c.  R.  Co.,  33  Mo.  App. 
509.  It  is  held  in  the  first  of  the 
cases  cited  that  the  remedy  given 
by  statute  to  recover  extortionate 
charges  supersedes  the  common  law 
remedy.  It  was  also  held  that  un- 
less the  carrier  charges  more  than 
the  maximum  rate  fixed  by  statute, 
no  action  will  lie,  citing  Burlington 
&c.  R.  Co.  v.  Dey,  82  Iowa  312,  48 
N.  W.  98,  12  L.  R.  A.  436,  31  Am. 
St.  477;  State  v.  Fremont  &c.  R. 
Co.,  22  Nebr.  313,  35  N.  W.  118; 
Sorrell  v.  Central  R.  Co.,  75  Ga. 
509;  Chicago  &c.  R.  Co.  v.  People. 
77  111.  443.  But  see  Little  Rock 
&c.  R.  Co.  v.  East  Tennessee  &c. 
R.  Co.,  47  Fed.  771,  where  it  is 
held  that  the  statutory  remedj-  is 
cumulative. 


3*  Winsor  &c.  Co.  v.  Chicago  &c. 
R.  Co.,  52  Fed.  716,  citing  Ken- 
nayde  v.  Railroad  Co.,  45  Mo.  255; 
Bayard  v.  Smith,  17  Wend.  (N.  Y.) 
88;  King  v.  Dickenson,  1  Saund. 
135. 

3-'-'  Cliandler  v.  Ilanna,  73  Ala. 
390;  Janney  v.  Buell,  55  Ala.  408; 
Indiana  &c.  R.  Co.  v.  Oakes,  20 
Ind.  9;  Dickinson  v.  Van  Wormer, 
39  Mich.  141;  Dudley  v.  Mayhew. 
3  N.  Y.  9;  Hollister  v.  Hollister 
Bank,  2  Keyes  (N.  Y.)  245;  Mcln- 
tire  V.  Western  &c.  R.  Co.,  67  N. 
Car.  278;  Carolina  &c.  R.  Co.  v. 
McKaskill,  94  N.  Car.  746.  In 
^linneapolis  &c.  R.  Co.  v.  State 
Board  of  Ry.  Comrs.,  30  N.  Dak. 
221,  152  N.  W.  513.  it  is  held  that 
an  appeal  to  the  Supreme  Court 
will  lie  from  the  order  of  the  board 
although  ministerial  or  legislative 
and  although  such  an  appeal  is  not 
provided  for  in  the  particular  stat- 
ute.    But  see  Illinois  Cent.   R.  Co. 


211 


STATE   RAILROAD  COMMISSIONERS 


§827 


that  the  procedure  of  the  federal  tribunals  cannot  be  regulated 
l)y  state  statutes.^®  We  do  not  understand  the  federal  courts  to 
hold  that  rights  given  by  state  statutes  will  not  be  enforced  ;  on 
the  contrary,  our  understanding  is  that  such  rights  will  be  en- 
forced, but  the  remedy  and  procedure  will  be  such  as  prevail  in 
the  courts  of  the  nation.  In  a  case  in  one  of  the  United  States 
circuit  courts  the  railroad  commissioners  had  made  an  order 
classifying  the  railroads  of  the  state  and  fixing  a  tariff  of  charges. 
The  railroad  company  insisted  that  the  rates  fixed  by  the  com- 
missioners were  unreasonable  and  sued  for  an  injunction,  the 
commissioners  contended  that  the  federal  court  had  no  jurisdic- 
tion because  there  existed  an  adequate  remedy  by  petition  to  the 
supreme  court  of  the  state,  but  the  court  denied  the  contention 
of  the  commissioners  and  held  that  it  had  jurisdiction.^^ 


V.  Dodd,  105  Miss.  23,  61  So.  743, 
49  L.  R.  A.  (N.  S.)  565,  where  other 
cases  are  reviewed,  and  the  whole 
subject  of  appeals  in  such  cases  is 
considered  in  note. 

36  Clark  V.  Smith.  13  Pet.  (U.  S.) 
195,  10  L.  ed.  119;  Fitch  v.  Creigh- 
ton,  24  How..(U.  S.)  159,  16  L.  ed. 
45;  Orvis  v.  Powell,  98  U.  S.  176, 
178.  25  L.  ed.  238;  Mills  v.  Scott, 
99  U.  S.  25,  25  L.  ed.  294;  Van 
Norden  v.  ^lorton.  99  U.  S.  378.  25 
L.  ed.  453;  Cummings  v.  National 
Bank,  101  U.  S.  153.  25  L.  ed.  903; 
Connecticut  &c.  Ins.  Co.  v.  Cush- 
man.  108  U.  S.  51,  2  Sup.  Ct.  236, 
27  L.  ed.  648;  Holland  v.  Challen, 
110  U.  S.  15,  3  Sup.  Ct.  495.  28  L. 
ed.  52:  Reynolds  v.  Crawfordsvilie 
First  Nat.  Bank,  112  U.  S.  405,  5 
Sup.  Ct.  213.  28  L.  ed.  72,Z;  Davis 
V.  Jones,  2  Fed.  618;  Flash  v.  Wil- 
kerson.  22  Fed.  689;  Fechheimer  v. 
Baum,  37  Fed.  167;  Borland  v.  Ha- 
ven, 37  Fed.  394. 

^'^  Ames  v.  Union  Pacific  R.  Co., 
64  Fed.  165,  172.  In  the  course  of 
the   opinion   nf   the   court    prepared 


by  ^Ir.  Justice  Brewer,  it  was  said: 
"It  is  further  insisted  by  defend- 
ants that  this  court  has  no  jurisdic- 
tion over  these  actions.  First,  be- 
cause, in  the  act  itself,  an  adequate 
legal  remedy  is  provided  by  peti- 
tion to  the  supreme  court  of  the 
state  and  courts  of  equity  may  not 
interfere  when  adequate  legal  rem- 
edies are  provided;  secondly,  be- 
cause the  rates  are  prescribed  by 
a  direct  act  of  the  legislature,  and 
not  fixed  by  any  commission.  I 
am  unable  to  assent  to  either  of 
these  contentions.  The  remedy  re- 
ferred to  is  found  in  section  5, 
which  authorizes  any  railroad  com- 
pany, believing  the  rates  prescribed 
to  be  unreasonable  and  unjust,  to 
bring  an  action  in  the  supreme 
court  of  the  state,  and  that  if  that 
court  is  satisfied  that  the  rates  are. 
as  claimed,  unjust  and  unreason- 
able to  such  company,  it  may  make 
an  order  directing  the  board  of 
transportation  to  permit  the  rail- 
road to  raise  its  rates  to  any  sum 
in  the  discretion  of  the  board,  pro- 


§  828] 


RAILROADS- 


212 


§828  (703).  Parties  to  suits  against  railroad  commissioners. 
— The  complaiiKint  in  a  suit  to  enjoin  a  lK)ard  of  railroad  com- 
missioners from  establishing  a  schedule  of  rates  cannot,  it  has 
l)een  held,  succeed  unless  he  shows  an  interest  in  the  controversy- 
peculiar  to  himself  and  not  common  to  the  public.^^  The  fact 
that  a  state  ships  goods  over  a  railroad  does  not  make  it  a  party 


vided  that  the  rates  so  raised  shall 
not    be    higher    than    were    those 
charged    by    such    railroad    on    the 
first    day    of    January,    1893.      But 
this  comes  very  far  short  of  being 
an    adequate   legal    remedy."     The 
court  also  said:    "An  adequate  le- 
gal  remedy  is   one   which  secures, 
absolutely  and  of  right,  to  the  in- 
jured  party  relief  from  the  wrong 
done.      But   even   if  it  were   a   full 
and    complete    legal    remedy,    it    is 
one  which  can  be  secured  only  in 
a  single  court,  and  that  a  court  of 
the  state.     And,  as  was  held  in  the 
case   of   Reagan  v.   Farmers'   Loan 
&c.  Co.,  154  U.  S.  362,  14  Sup.  Ct. 
1047,  38  L.  ed.  1014,  it  is  not  within 
the    power   of   the    state   to   tie    up 
citizens     of    other     states     to     the 
courts  of  that  state  for  the  redress 
of  theii-' rights,  and  for  the  protec- 
tion  against  wrong.     The   laws  of 
congress,  passed  under  the  author- 
ity    tt'f     the     constitution     of     the 
United   States,   open    the    doors   of 
the    federal    courts    to    citizens    of 
other    states    to    suits    and    actions 
tor    the    prevention    or    redress    of 
wronLf,  and  the  state  can  not  close 
those   doors.     Whatever  the  effect 
such  legislation  may  have  upon  the 
courts   of  the   state,   the   courts   of 
the  United  States  are  as  open  now 
as  they  were  to  actions  for  the  pro- 
tection  of   citizens   of  other   states 
in   their  property  rights  within  the 


?tate  of  Nel)raska."  This  case  is 
affirmed  in  Smyth  v.  Ames,  169 
U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed. 
819. 

■"^s  Board  of  Railroad  Comrs.  v. 
Symns  &c.  Co.,  53  Kans.  207,  9 
Am.  R.  &  Corp.  Rep.  676,  citing 
Scofield  V.  Railway  Co.,  43  Ohio  St. 
571,  3  N.  E.  907,  54  Am.  Rep.  846; 
Commissioners  v.  Smith,  48  Kans. 
331,  29  Pac.  565.  The  court  dis- 
criminated the  case  before  it  from 
the  cases  of  Chicago  &c.  R.  Co.  v. 
Dey,  35  Fed.  866;  Chicago  &c.  R. 
Co.  V.  Minnesota,  134  U.  S.  418,  10 
Sup.  Ct.  462,  23  L.  ed.  970:  Budd 
V.  People,  143  U.  S.  517,  12  Sup.  Ct. 
468.  36  L.  ed.  247,  .saying:  "We  are 
cited  to  cases  where  injunction  was 
maintained  by  the  railroad  com- 
pany against  the  enforcement  of 
the  order  of  such  a  board,  but  in 
these  cases  it  was  held  to  be  main- 
tainable because  the  rates  pro- 
posed to  be  put  in  force  were  so 
unreasonable  as  to  be  confiscatory. 
The  railroad  company,  being  a  pub- 
lic carrier  and  obliged  to  transport 
commodities  oflfcred  for  shipment, 
and  use  their  property  in  so  doing, 
it  was  held  that  a  provision  re- 
((uiring  the  carriage  of  a  person  or 
property  without  reward  amounted 
to  the  taking  of  private  property 
for  a  public  use  without  just  com- 
pensation, or  without  due  process 
of  law,  and  hence  a  court  of  equity 


213  STATE  RAlLiKO^VD   COMMISSIOjS'ERS  §  829 

to  a  suit  to  determine  the  validity  of  rates  of  freight  established 
by  the  commissioners.^'^  Railroad  commissioners  who  grant  au- 
thority to  one  railroad  company  to  cross  the  tracks  of  another  are 
held  to  be  mere  nominal  parties  to  a  suit  to  enjoin  the  commis- 
sioners from  rehearing  the  case  upon  the  application  of  the  com- 
pany whose  road  the  other  cpmpany  was  granted  a  right  to 
cross.*" 

§  829  (704).  Review  by  certiorari — Other  modes  of  review. — 
In  jurisdictions  where  the  practice  of  bringing  before  the  court 
for  review  the  proceedings,  of  an  inferior  court  tribunal,  or 
officer  exercising  judicial  authority,  whose  proceedings  are  sum- 
mary or  in  a  course  different  from  the  common  law*^  by  a  writ 
of  certiorari  prevails,  we  suppose  that  in  many  instances  the  ap- 
propriate mode  of  reviewing  the  proceedings  of  a  board  of  rail- 
road commissioners  would  be  by  certiorari.  The  board  of  com- 
missioners is  an  inferior  tribunal  invested,  in  some  instances  at 
least,  with  powers  in  their  nature  judicial,  so  that  it  would  seem 
that  in  the  proper  case  their  proceedings  are  reviewable  by  cer- 
tiorari. In  a  Massachusetts  case  it  was  assumed  that  certiorari - 
was  a  proper  remedy,  but  it  was  held  that  the  petition  must  be- 
dismissed  for  the  reason  among  others  that  the  petitioners  were' 
not  parties  to  the  proceedings.*^  Other  ways  in  which  a  review 
may  be  obtained,  either  directly  or  indirectly,  have  been  men- 
tioned in  preceding  sections  and  still  others  will  be  considered 

might  prevent  the   enforcement  of  Eng.  R.  Cas.  301.     See  also  Pacific 

such    a    provision."      See    State    v.  &c.  Tel.  Co.  v.  Eshleman,  166  Cal. 

Chicago   &c.   R.   Co.,  86   Iowa  304,  640,  137  Pac.  1119.  50  L.  R.  A.  (N. 

53  N.  W.  253.  S.)    652    (by  writ   of  review   under 

29  Clyde  V.  Richmond  &c.  R.  Co.,  statute  enlarging  scope  of  writ  of 

57  Fed.  436.  certiorari).  Certiorari  is  held  not  to 

■*"  Union  &c.  R.  Co.  v.  Board  of  be  the  proper  remedy  to  secure  the 

Railroad   Comrs.,   52  Kans.   680,  35  reduction  of  a  rate,  since  the  court 

Pac.  224.  could   do   no   more   in    such   a   pro- 

41  Farmingham  &c.   Co.  v.   Coun-  ceeding   than    set   aside    the    order, 

ty   Comrs.,    112    Mass.   206;    Elliott  Public    Service    Gas    Co.   v.    Board 

Roads  and   Streets.     (3d  ed.,  §425,  of  Public  Utility  Comrs.,  87   N.  J. 

ct  seq.).  E.  597.  94  Atl.  634,  L.  R.  A.  1918A, 

4"-  Cunningham      v.      Board,      158  421. 
Mass.  104,  32  N.  E.  959,  56  Am.  & 


§829 


RAILROADS 


214 


in  the  following  section,  but  the  most  common  direct  method 
provided  in  many  instances  are  by  appeal  or  proceedings  to  set 
aside  the  order.*^ 


*^  As  to  right  tt)  appeal  depend- 
ing on  statute,  construction  of 
such  statutes  and  power  of  court 
on  review,  see  generally  the  Illi- 
nois Cent.  R.  Co.  v.  Dodd.  105 
Miss.  23,  61  So.  743,  and  decisions 
reviewed  in  note  to  that  case  as 
reported  in  49  L.  R.  A.  (N.  S.)  565. 
Under  the  Indiana  law  providing 
an  appeal  from  the  commission  to 
the  circuit  court,  such  court  hears 
the  case  de  novo  and  not  on  re- 
view, and  passes  on  the  weight  of 
the  evidence  as  heard  by  it  with- 
out being  bound  by  the  finding  of 
the  commissioners.  Public  Service 
Com.  V.  Cleveland*  &c.  R.  Co. 
(Ind.),  121  N.  E.  116  (also  holding 
that  a  petition  by  a  railroad  com- 
pany for  a  joint  rate  with  another 
company  should  not  be  granted  un- 
less it  will  benefit  the  shipping  pub- 
lic, as  it  is  not  sufficient  that  it  will 
merely  benefit  the  petitioning  rail- 
road). Under  a  statute  providing 
that  a  railroad  company  aggrieved 
by  an  order  of  the  Public  Service 
Commission  may  institute  pro- 
ceedings to  set  aside  such  order  on 
the  ground  that  it  is  unreasonable 
or  unlawful,  an  unreasonable  order 
must  be  considered  by  the  court  as 
unlawful,  and  an  order  forbidding 
the  company  to  delay  local  trains 
to  permit  the  passage  of  delayed 
through  trains  is  unreasonable 
where  the  evidence  shows  that  lo- 
cal trains  are  never  delayed  more 
than  ten  minutes  and  that,  unless 
so  delayed,  the  through  trains  arc 
delayed    more    than    half    an    hour. 


Northern  Cent.  R.  Co.  v.  Laird,  124 
Md.  141.  91  Atl.  768,  Ann.  Cas. 
1916D.  1030.  The  statute  may  make 
the  commission's  finding  of  fact 
prima  facie  true  and  its  orders  are 
not  to  be  set  aside  unless  clearly 
against  the  evidence,  or  beyond  the 
scope  of  the  commission's  author- 
ity or  an  infringement  upon  some 
constitutional  right.  Chicago  Mo- 
tor Bus  Co.  V.  Chicago  Stage  Co.. 
287  111.  320,  122  N.  E.  477;  Public 
Utilities  Com.  v.  Chicago  &c.  Ry. 
Co.,  275  111.  555,  114  N.  E.  325, 
Ann.  Cas.  1917C.  50;  State  Public 
Utilities  Com.  v.  Toledo  &c.  R.  Co., 
267  111.  93,  107  N.  E.  774;  Interstate 
Commerce  Com.  v.  Union  Pac.  R. 
Co.,  222  U.  S.  541,  32  Sup.  Ct.  108. 
56  L.  ed.  308.  See  also  State  v. 
Great  Northern  Ry.  Co.,  130  Minn. 
57,  153  N.  W.  247,  Ann.  Cas.  1917B, 
1201;  People  v.  McCall.  219  N.  Y. 
84,  113  N.  E.  795,  Ann.  Cas.  1916E, 
1042:  Settle  v.  Public  Utilities  Com., 
94  Ohio  St.  417,  114  N.  E.  1036; 
State  ex  rel.  Tacoma  E.  Ry.  Co.  v. 
Northern  Pac.  Ry.  Co.,  104  Wash. 
405.  176  Pac.  5.30  (order  will  not  be 
disturbed  rr.'..c.-.s  an  arbitrary  and 
wrongTul  exercise  of  discretion). 
See  also  as  to  appeals  and  matters 
considered  thereon  State  Public 
Utilities  Com.  v.  Chicago  &c.  R. 
Co..  275  111.  555,  114  N.  E.  325, 
Ann.  Cas.  1917C,  50;  State  ex  rel. 
Missouri  Pac.  R.  Co.  v.  Atkinson, 
269  Mo.  634.  192  S.  W.  86,  L.  R.  A. 
1918A,  46;  Hocking  Valley  Ry.  Co. 
V.  Public  Utilities  Com.,  92  Ohio  St. 
9,  110  N.  E.  521,  L.  R.  A.  1918A,  267. 


215  STATE  RAILROAD   COMMISSIONERS  §  830 

§830  (705).     Injunction  against  commissioners — Generally. — 

The  illegal  and  unauthorized  acts  of  a  board  of  railroad  commis- 
sioners may  be  restrained  in  a  proper  case  by  injunction.  Where 
a  state  statute  is  unconstitutional,  the  board  of  commissioners 
will  be  enjoined  from  enforcing  orders  assumed  to  be  made  by 
authority  of  such  statute.**  But,  it  is  held  here,  as  in  other  cases, 
that  injunction  will  not  lie  if  there  is  an  adequate  remedy  at 
law.*^  The  earlier  English  statute  recognized  the  power  of  the 
courts  to  enjoin  the  proceedings  of  railway  commissioners  in 
cases  where  they  assumed  powers  they  did  not  possess  or  vio- 
lated settled  rules  of  law,  but  the  courts  of  England  reluctantly 
interfere  with  the  decisions  of  the  commissioners,  and  will  do  so 
only  in  clear  cases.*"  In  this  country  courts  have  jurisdiction  over 
the  proceedings  of  railroad  commissioners,  although  there  may 
be  no  statute  specifically  or  expressly  conferring  it.  Granting  to 
railroad  commissioners  power  to  make  orders  does  not  necessarily 
take  away  the  jurisdiction  of  the  courts.  The  general  rule  is  that 
jurisdiction  once  granted  is  not  divested  unless  there  is  a  clear 
statutory  provision  divesting  it.  But  the  power  of  the  court 
rests  on  higher  grounds.  The  legislature  does  not  create  or  vest 
the  judicial  power  of  the  commonwealth ;  that  is  done  by  the 
constitution;  the  legislature  simply  distributes  the  power.  The 
legislature  has  no  judicial  power,  for  its  power  is  exclusively 

4*  Chicago  &c.  R.  Co.  v.  Dey,  35  Corp.  Rep.  606.  A  temporary  in- 
Fed.  866,  1  L.  R.  A.  744;  Pick  v.  junction  may  be  granted  against 
Chicago  &c.  R.  Co.,  6  Biss.  (U.  S.)  enforcement  by  a  state  railroad 
177;  Reagan  v.  Farmers'  Loan  &c.  commission  of  a  rate  for  intrastate 
Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047,  transportation  which  will  not  per- 
38  L.  ed.  1014;  Louisville  &c.  R.  mit  the  railroad  company  from  all 
Co.  V.  Railroad  Com.,  19  Fed.  679;  sources  to  pay  reasonable  operat- 
Farmers'  Loan  &c.  Co.  v.  Stone,  ing  expenses.  Bellamy  v.  Missouri 
20  Fed.  270;  Chicago  &c.  R.  Co.  v.  &c.  R.  Co.,  215  Fed.  18,  L.  R.  A. 
Dey,  35    Fed.  866,   overruling   Chi-  1915A,    1. 

cago  &c.  R.  Co.  V.  Becker,  32  Fed.  ^5  Louisville  &c.  R.  Co.  v.   Burr, 

883;    McWhorter  v.   Pensacola   &c.  63  Fla.  491,  58  So.  543,  44  L.  R.  A. 

R.  Co.,  24  Fla.  417,  5  So.  129,  2  L.  (N.  S.)  189. 

R.  A.  504,  12  Am.  St.  220;  Seawell  47  Barret   v.   Great    Northern   &c. 

V.  Kansas  City  &c.  R.  Co.,  119  Mo.  R.  Co.,  1  C.  B.  (N.  S.)  423,  28  L.  T. 

224,   24    S.   W.    1002,    9   Am.    R.    &  254,  38   Eng.   L.  &  Eq.  218. 


§S31 


RAILROADS 


216 


legislative,  and   as   it   has   no  judicial   power,   it  cannot,  in   the 
proper  sense,  delegate  such  power."*" 

§831  (706),  Where  commissioners  exceed  their  jurisdiction 
injunction  will  lie. — If  railway  commissioners  exceed  their  juris- 
diction, and  their  acts  are  more  than  mere  fugitive  or  transient 
trespasses,  injunction  will  lie.  The  rule  that  where  a  tribunal, 
such  as  a  board  of  railroad  commissioners,  transcends  its  powers, 
mjunction  is  the  appropriate  remedy,  is  a  familiar  one.  The  dif- 
ficulty in  practically  applying  the  rule  stated  is  in  determining 
whether  the  commissioners  have  exceeded  their  jurisdiction.  As 
their  jurisdiction  is  wholly  statutory,  they  exceed  it  whenever 
they  do  an  act  not  authorized  by  the  statute  from  which  they 
derive  their  powers.^" 

§  832  (707).  Vacating  orders  of  commissioners  on  the  ground 
of  fraud. — A  board  of  railroad  commissioners  is  subject  to  the 
equity  jurisdiction  of  the  courts.^^   If  it  makes  an  order  which  is 


*^  Greenough  v.  Greenough,  11 
Pa.  St.  489,  51  Am.  Dec.  567;  Per- 
kin.s  V.  Corbin,  45  Ala.  103,  6  Am. 
Rep.  698;  Vandercook  v.  Williams, 
106  Ind.  345;  Smythe  v.  Boswell, 
117  Ind.  365,  20  N.  E.  268.  Authori- 
ties cited,  Elliott  App.  Proc.  §§  1, 
2,  3  and  notes.  Mr.  Bryce  says: 
"But  in  America  a  legislature  is  a 
legislature  and  nothing  more.  The 
same  instrument  which  creates 
it  creates  also  the  executive,  gov- 
ernor and  the  judges.  They  hold 
by  a  title  as  good  as  its  own. 
If  the  legislature  should  pass  a 
law  depriving  the  governor  of  an 
executive  function  conferred  by 
the  constitution,  that  law  would 
be  void.  If  the  legislature  at- 
tempted to  interfere  with  the 
courts,  their  action  would  be 
even  more  palpably  illegal  and  in- 
eflfectual."  Bryce  Am.  Com.  429. 
It    is   not   to   be   understood,   how- 


ever, that  the  legislature  may  not 
interfere  with  the  courts,  so  far  as 
concerns  matters  of  procedure,  but 
judicial  powers  resident  in  courts 
legislative  action  is  inefifective  to 
take  away  or  bestow  upon  admin- 
istrative   or   ministerial   officers. 

■"^o  South  Eastern  &c.  R.  Co.  v. 
Railway  Comrs.,  L.  R.  6  Q.  B.  D. 
586,  per  Lord  Selborne,  vide,  p.  591; 
Great  Western  R.  Co.  v.  Railroad 
Comrs.,  L.  R.  7  Q.  B.  D.  182;  South 
Eastern  R.  Co.  v.  Railroad  Comrs., 
L.  R.  5  Q.  B.  D.  217;  Regina  v. 
Railway  Comrs.,  L.  R.  22  Q.  B. 
D.  642.  See  Caterham  &c.  R.  Co. 
V.  London  &c.  R.  Co.,  1  C.  B.  (N. 
S.)  410;  Bennet  v.  Manchester  &c. 
R.  Co.,  6  C.  B.  (N.  S.)  707,  714: 
Pelsall  &c.  R.  Co.  v.  London  &c. 
R.  Co.,  L.  R.  23  Q.  B.  D.  536;  Tift 
V.   Southern   R.   Co.,   123    Fed.   789. 

•''1  Clyde  V.  Richmond  &c.  R.  Co., 
57  Fed.  436. 


217 


STATE  RAILKOAD   COMMISSIONERS 


833 


fraudulent  in  its  nature,  the  order  may  be  vacated  by  a  decree  of 
a  court  of  chancery."'-  To  entitle  a  party  to  a  decree  vacating  or 
annulling  an  order  upon  the  ground  of  fraud  it  must  be  made  to 
appear  that  there  was  actual  fraud  in  obtaining  the  order,  and  if 
there  be  no  fraud  the  order  will  not  be  vacated,  although  the 
parties  who  obtained  it  were  influenced  by  corrupt  motives. 

§  833  (708).  Federal  question — Removal  of  causes  from  state 
courts. — It  has  been  held  that  where  a  state  board  of  railroad 
commissioners  brings  an  action  to  enforce  obedience  to  its  orders 
the  case  cannot  be  removed  to  the  federal  court,  although  it  ap- 
pears that  a  federal  question  is  involved. ^^  The  court  suggested 
that  the  proper  course  was  to  put  in  a  pleading  presenting  the 
federal  question,  and  in  the  event  of  an  adverse  decision  by  the 
highest  court  of  the  state,  carry  the  case  to  the  Supreme  Court 
of  the  United  States  by  a  writ  of  error.  In  another  case,^*  how- 
ever, the  doctrine  of  the  case  referred  to  is  denied,  and  it  is 
asserted  that  the  case  may  be  removed.  The  case  last  referred 
to  holds  that  if  the  petition  for  removal''^  shows  that  a  federal 
question  is  involved,  a  removal  vv^ill  be  ordered,  but  in  so  holding 
it  seems  to  us  that  the  court  was  in  error.  The  law  as  declared 
by  the  Supreme  Court  of  the  United  States  is,  that  a  cause  is  not 


52Coe  V.  Aiken,  61  Fed.  24.  In 
the  case  cited  the  court  said:  "With 
reference  to  the  second  objection 
there  is  no  doubt  in  my  mind  that 
a  court  of  equity  may  set  aside  the 
action  of  a  tribunal  of  this  char- 
acter, if  it  is  fraudulent  in  its  na- 
ture or  essence,  or  was  fraudulently 
obtained.  It  may  even  go  further, 
and  for  the  same  reasons,  set  aside 
the  judgments  of  a  judicial  tribu- 
nal. This  is  a  fundamental  princi- 
ple of  law." 

53  Dey  V.  Chicago  &c.  R.  Co.,  45 
Fed.  82.  See  also  North  Carolina 
Corp.  Com.  v.  Southern  R.  Co., 
151  N.  Car.  447.  66  S.  E.  427. 


"'■*  State  V.  Coosaw  &c.  Co.,  45 
Fed.  804. 

^^'  The  court,  in  the  case  referred 
to,  State  V.  Coosaw  &c.  Co.,  45  Fed. 
804,  811,  cited  in  support  of  its  con- 
clusion, ^[etcalf  V.  Watertown,  128 
U.  S.  589,  9  Sup.  Ct.  173.  32  L.  ed. 
544;  State  v.  Illinois  &c.  R.  Co.,  33 
Fed.  721;  Austin  v.  Gagan,  39  Fed. 
626:  McDonald  v.  Salem  &c.  Co.. 
31  Fed.  577;  Johnson  v.  Accident 
Ins.  Co.,  35  Fed.  374,  but  as  appears 
from  the  cases  referred  to  in  the 
following  note  those  cases  were 
wrongly   decided. 


§  833  RAILROADS  218 

removable  as  involving  a  federal  question  unless  the  facts  mak- 
ing it  removable  appear  from  the  plaintiff's  statement  of  his 
claim.'® 

58  Chappell    V.    Waterworth,    155  Sup.    Ct.   654,   38    L.   ed.    511.      See 

U.  S.  102,  15  Sup.  Ct.  34,  39  1..  ed.  also  Williams  v.    First   Nat.    Bank, 

85;  East  Lake  Land  Co.  v.  Brown,  216  U.   S.  582,  30  Sup.   Ct.  441,   54 

155  U.   S.  488,  15  Sup.   Ct.  357,  39  L.  ed.  625;  State  v.  Louisville  &c. 

L.  ed.  233;  Tennessee  v.  Union   &  R.  Co.,  104  Miss.  413,  Gl  So.  425. 
Planters'   Bank,    152   U.    S.   454,    14 


CHAPTER  XXIX 


PENAL  OFFENSES  BY  AND  AGAINST  RAILROAD  COMPANIES 


Sec.  Sec. 

840.    Penal     offenses     by     railroad       857. 
companies — Generally.  858. 

84L    Penal     statutes     strictly    con-      859. 
strued  —  No  extraterritorial 
effect.  860. 

842.  Right  of  action  as  affected  by      86L 

penal      statutes — Effect      of 
violation  as  proof  of  negli-      862. 
gence.  863. 

843.  Whether  private  injury  essen- 

tial to  recovery  of  penalty.       864. 

844.  Action     for     enforcement     of 

penal  statutes.  865. 

845.  The    informer's    rights — Par- 

ties. 866. 

846.  The  penalty — Computation. 

847.  When     "penalty"     and     when 

"liquidated  damages." 

848.  Indictment    of    railroad    com-      867. 

panies  for  causing  death. 

849.  Violation  of  Sunday  laws.  868. 

850.  Indictment    of    railroad    com- 

pany     for      maintaining      a      869. 
nuisance. 

851.  Indictment      under      separate       870. 

coach  act — Variance.  871. 

852.  Obstruction  of  highways. 

853.  Failure    to    maintain    accom-      872. 

modations   at  stations. 

854.  Indictment      for      failure      to       873. 

maintain  accommodations. 

855.  Statutory    signals  —  Stops    at      874. 

crossings. 

856.  Blackboards   and    bulletins    at 

stations. 


Failure  to  furnish  cars. 

Unlawful  speed. 

Penalties  for  detention  of  bag- 
gage. 

Other  penal  regulations. 

Full  crew  and  hours  of  serv- 
ice laws. 

Blacklisting — Clearance  cards. 
Violations  of  federal  regula- 
tions. 

Penalty  for  confinement  of 
live   stock. 

Penalty  for  confinement  of 
live  stock — State  legislation. 

Offenses  against  railroads — 
Obstructing  mails  and  in- 
terfering with  interstate 
commerce. 

English  statutorj'  penalties  for 
riding  without  paying  fare. 

Sale  of  tickets  without  au- 
thority-— "Scalpers." 

Climbing  on  cars— Evading 
payment  of  fare. 

Placing  obstruction  on  track. 

Shooting  or  throwing  missile 
at  car. 

Breaking  into  depot  or  car. — 
Burglary. 

Injury  to  railroad  property — 
Malicious   trespass. 

Other  crimes  against  railroad 
companies. 


§  840  (709).  Penal  offenses  by  railroad  companies — Gener- 
ally.— Railroad  corporations  are  the  subject  of  much  legislation 
by  Congress,  legislatures  and  municipalities,  within  their  respec- 

219 


5  840 


RAIIjROADS 


220 


tive  spheres.  Rci^ulaliuns  arisinj^  from  the  power  to  reguhite 
commerce  are  usually  such  as  apply  to  common  carriers  gener- 
ally, but  many  statutes  and  ordinances  enacted  in  the  exercise 
of  the  police  power  look  particularly  to  the  peculiar  nature  of 
the  operation  of  railroads  and  often  apply  to  steam  railroads  ex- 
clusively. It  is  thoroughly  established  that  legislatures,  within 
their  spheres,  have  power  to  compel  railroad  companies  to  dis- 
charge their  duties  and  obligation  to  shii)]icrs  and  the  public  by 
reasonable  statutory  regulations,  which  may  be  enforced  by  fines 
and  penalties.^  Some  courts  have  held  that  corporations  are  not 
included  in  general  penal  statutes  forbidding  the  commission  of 
particular  acts  unless  included  in  express  language,-  and  base 
their  decisions  upon  the  rule  that  penal  statutes  must  be  strictly 
construed,  maintaining  that  the  term  "person"  under  such  strict 
construction  cannot  apply  to  a  corporation,^  but  it  seems  to  be 
the  sound  rule,  supported  by  the  weight  of  authority,  that  cor- 
porations are  amenable  to  penal  statutes  forl)idding  the  commis- 
sion of  offenses  l)y  "persons,"  when  the  circumstances  in  which 
-they  are  placed  are-identical  with  those  of  a  natural  person-  ex- 


1  Missouri  Pacific  1\.  Co.  v. 
Humes,  115  U.  S.'SIZ,  6  Sup.  Ct. 
110,  29  L.  ed.  463,  22  Am.  &  Eng. 
R.  Cas.  557;  McGowan  v.  Wilminpf- 
lon  &c.  R.  Co.,  95  N.  Car.  417.  27 
.^m.  &  Eng.  R.  Cas.  64;  Branch  v. 
Wilmington  &c.  R.  Co.,  11  N.  Car. 
347.  See  chapter  on  governmental 
control,  fn  the  peculiar  case  of 
Goodspeed  v.  Ithaca  St.  Ry.  Co.. 
184  N.  Y.  351,  n  N.  E.  392,  a  car- 
rier was  held  exempt  from  the  pen- 
alty for  an  overcharge  on  the 
ground  that  it  had  honestly  mis- 
taken its  statutory  rights.  The 
Texas  statute  imposing  a  penalty 
of  not  less  than  $100  or  more  than 
$500  on  a  carrier  refusing  to  re- 
deem its  unused  tickets  has  been 
held  not  open  to  the  objections  that 
it  was  unreasonably  excessive.  Tex- 
as &c.  R.  Co.  V.  Alahaffey  (Tex. 
Civ.  App.").  81  S.  W.  1047. 


-  In  l^enson  v.  Monson  &c.  R. 
Co..  9  ^Nlet.  (Mass.)  562,  it  was  held 
that  a  statute  imposing  a  pcnaltj- 
upon  "the  owner,  agent,  or  super- 
intendent of  any  manufacturing  es- 
tablishment" did  not  appl)'  to  a 
"manufacturing  corporation."  Sec 
5  Tliomp.  Corp.  (2d  ed.)   §  6285. 

^  In  Cumberland  &c.  Co.  v.  Port- 
land, 56  IMaine  11,  the  court  held 
that  an  action  for  penalt\^  could 
not  be  maintained  against  a  munici- 
pal corporation  which  had  violated 
a  statute  imposing  a  penalty  upon 
"any  person  or  persons."  Another 
Maine  decision  asserts,  that  an  ac- 
tion can  not  be  maintained  against 
a  corporation  for  the  commission 
of  an  ofifense  forbidden  by  a  penal 
statute  applying  in  terms  to  "any 
person,"  and  wliich,  in  another  sec- 
tion, provided  that  the  ofifense 
should    constitute   larccnv,    for    the 


221 


PENAL  OFFENSES 


§840 


pressly  included  in  the  statute,- and.  where  the  statute  can  be 
applied  equally  well  to- them  as  corporations.*  It  is  generally 
held  that  corporations  are-indictable  for  non-feasance. in  the  cases 
in  which  a  natural  person  would  be  indictable,'  but  there  is.  con- 
flict as  to  whether  they  are  thus  indictable  for  acts  of  misfeas- 
ance. It  is  maintained  b}^  some  courts,  and  it  seems  with  good 
reason,  that  a  corporation  may  be  indicted  for  misfeasance,  or 
the  doing  of  an  act  unlawful  in  itself  and  injurious  to  the  rights 
of  others,  as  well  as  for.  an  omission  of  duty,*^  but  it  is.  said  that 
they  cannot  be  indicted  for  offenses  which  derive  their,  crimi- 
nality from  evil  intent,  or  which  are  simply  violations  of  the 
social  duties  peculiar  to  natiu"al  persons.'    Lord  Coke  early  laid 


double  reason  tliat  criminal  intent 
can  not  be  imputed  to  a  corpora- 
tion, and  that  such  statutes  are 
not  to  be  enlarged  by  cons.truction. 
Androscoggin  &c.  Co.  v.  Bethel 
&c.  Co.,  64  Maine  441.  See  also 
State. V.  .Ohio  &c.  R.  Co.,  23  Ind. 
362;  Indianapolis  &c.  R.  Qo.  v. 
State.  Z7  Ind.  489.  493;  Common- 
wealth V.  Swift  Run  Gap  Turnpike, 
2  Va.  Cas.  362. 

*  South  Carolina  R.  Co.  v.  Mc- 
Donald, 5  Ga.  531;  Wales  v.  Mus- 
catine, 4  Iowa  302:  Stewart  v.  Wa- 
terloo Turn  Verein,  71  Iowa  226, 
32  N.  W.  275,.' 60  Am.  Rep.  786: 
State  V.  Morris  &c.  R.  Co.,  23  N. 
J.  L.  360;  State  v.  Security  Bank, 
2  S.  Dak.  538,  51  N.  W.  ^Z7;  State 
V.  First  Nat.  Bank,  2  S.  Dak.  568, 
51  X.  W.  587;  State  v.  Vermont 
Cent.  R.  Co.,  27  Vt.  103.  See  State 
V.  Baltimore  &c.  R.  Co.,  15  W.  Va. 
362,  36  Am.  Rep.  803,  for  a  review 
of  the  authorities.  And  see  also 
Chicago  &c.  R.  Co.,  v.  Ellison,  113 
Mich.  ZZ,  71  N.  W.  324;  State  v. 
Ice  &  Fuel  Co.  (N.  Car.),  81  S.  E. 
72>7,  52  L.  R.  A.  (N.  S.)  216;  and 
note  in  Ann.  Cas.  1914A,  1310, 
5  Thomp.  Corp.  §  6285. 


•' Texas  &c.  R:  Co.  v.  State.  41 
■  Ark.  498,  20  Am.  &  Eng;  R.  Cas. 
626;  Louisville  &c.  R.  Co.  v. 
Coinmonwealth.  13  Rush.  (Ky.) 
388,  26  Am.  Rep.  205,  and  note; 
Commonwealth  v.  Central  Bridge 
Corp.,  12  Cush.  (Mass.)  242:  Bos- 
ton &c.  R.  Co.  V.  State,  32  N.  H. 
215:  Waterford  &c.  v.  People,  9 
Barb.  (N.  Y.)  161 ;  People  v.  Al- 
bany, 11  Wend.  (X.  V.)  539,  27 
Am.  Dec.  95,  and  note;  Queen  v. 
Birmingham  &c.  R.  Co.,  2  Gale  & 
D.  236. 

^  Commonwealth  v.  Prop,  of  New 
Bedford  Bridge,  2  Gray  (Mass.), 
339:  State  v.  Morris  &c.  R..  Co., 
23  N.  J.  L.  360;  State  v.  Vermont 
Cent.  R.  Co.,  27  Vt.  103;  State  v. 
Baltimore  &c.  Co.,  15  W.  Va.  Z62. 
2i6  Am.  Rep.  803,  citing  authorities; 
Queen  v.  Great  &c.  R.  Co..  9  Q. 
B.  315.  10  Jur.  755.  See  also  State 
V.  Ice  &  Fuel  Co.  (N.  Car.).  81  S.  E. 
72,7,  52  L.  R.  A.  (N.  S.)  216;  Com- 
monwealth V.  Lehigh  Valley  R. 
Co.,  165  Pa.  St.  162.  30  Atl.  836,  27 
L.  R.  A.  231. 

"  It  has  been  held  that  an  action 
of  trespass  for  false  imprisonment 
will  lie  against  a  corporation,  but 


RAILROADS 


222 


(iowii  the  rule  that  corporations  are  persons  within  the  purview 
of  penal  statutes,  and  Mr.  Justice  Story,  "finding,  therefore,  no 
authority  at  common  law,  which  overthrows  the  doctrine  of  Lord 
Coke,"  refused  to  "engraft  any  such  constructive  exception  upon 
the  text  of  the  statute."®  The  act,  to  be  punishable  by  penalty, 
must  come  within  the  scope  of  the  duty  or  power  of  the  corpora- 
tion,^ otherw  ise  the  penalty  can  only  be  inflicted  upon  the  mem- 
bers and  officers  or  representatives  of  the  corporation,^"  who  may 
l;e  presumed  to  have  acted  as  individuals.  But  the  members  and 
officers  arc  not  always  criminally  liable  when  the  corporation  is." 
Where  a  railroad  is  in  the  hands  of  a  receiver  the  corporation 
cannot  be  prosecuted  for  crimes  or  misdemeanors  committed  by 
the  agents  or  servants  of  the  receiver.^-  Under  the  rule  of  strict 
construction  it  has  been  held  that  a  penalty  denounced  against 
a  "railroad  company"  is  not  recoverable  against  a  "receiver."" 


an  action  on  the  case  for  malicious 
prosecution  will  not  lie  for  the 
reason  that  malicious  intent  can 
not  be  imputed  to  a  corporation. 
Owsley  V.  Montgomery  &c.  R.  Co., 
27  Ala.  560.  But  it  is  now  gener- 
ally held  that  a  corporation  may  be 
convicted  even  where  criminal  in- 
tent is  necessary.  A  recent  case 
to  this  effect,  reviewing  many  of 
the  authorities,  is  State  v.  Ice  & 
Fuel  Co.  (N.  Car.),  81  S.  E.  727, 
52  L.  R.  A.  (N.  S.)  216.  See  also 
Com.  V.  Illinois  Cent.  R.  Co.,  152 
Ky.  320,  153  S.  W.  459,  45  L.  R.  A. 
(N.  S.)  344;  Com.  v.  New  York 
Cent.  &c.  R.  Co.,  206  Mass.  417, 
92  N.  E.  766;  People  v.  Rochester 
&c.  R.  Co.,  195  N.  Y.  102,  88  N.  E. 
22.  133  Am.  St.  770,  21  L.  R.  A. 
(N.  S.)  998. 

8  United  States  v.  Amedy,  11 
Wheat.  (U.  S.)  393,  412,  6  L.  ed. 
638;  Louisville  &c.  R.  Co.  v.  State, 
3  Head  (Tenn.)  523,  75  Am.  Dec. 
778;  Queen  v.  Great  &c.  R.  Co., 
9  Q.  B.  315,  10  Jur.  755. 


*•  Reg.  v.  Great  North  of  Eng- 
land   Railway.    9    Q.    B.    315,    326. 

10  Kane  v.  People,  3  Wend.  (N. 
Y.)  363;  Edge  v.  Commonwealth, 
7  Pa.  St.  275. 

^1  State  v.  Barksdale,  5  Humph. 
(Tenn.)  154.  Stockholders  are  not 
usually  liable  individually.  State  v. 
Gilmore,  24  N.   H.  461. 

"State  V.  Wabash  R.  Co..  115 
Ind.  466,  17  N.  E.  909,  1  L.  R.  A. 
179,  35  Am.  &  Eng.  R.  Cas.  1: 
State  V.  Norfolk  &c.  R.  Co.,  152  N. 
Car.  785,  67  S.  K.  42,  26  L.  R.  A. 
(N.  S.)  710. 

i"*  Bonner  v.  Franklin  Co-op. 
Assn.,  4  Tex.  Civ.  App.  166,  23  S. 
W.  317;  Turner  v.  Cross,  33  Tex. 
218,  18  S.  W.  578,  15  L.  R.  A.  262, 
and  note;  Texas  &c.  R.  Co.  v.  Barn- 
hart.  5  Tex.  Civ.  App.  601,  23  S. 
W.  801;  Missouri  &c.  R.  Co.  v.  Sto- 
ner,  5  Tex.  Civ.  App.  50,  23  S.  W. 
1020.  See  however,  and  compare 
Arkansas  Cent.  R.  Co.  v.  State,  72 
Ark.  252,  79  S.  W.  772. 


223 


PENAL  OFFENSES 


§841 


But  it  has  been  held  that  receivers  appointed  by  the  federal 
courts  do  not  fall  under  this  rule  as  they  are  required  by  a  federal 
statute  to  operate  the  roads  under  and  in  compliance  with  the 
laws  governing  railway  companies  in  the  states  respectively  in 
which  the  property  is  situated.^* 

§841  (710).  Penal  statutes  strictly  construed — No  extrater- 
ritorial effect. — The  rigid  rules  of  the  common  law  with  reference 
to  the  liability  of  common  carriers  should  not  be  applied  in  cases 
involving  the  violation  of  a  penal  statute,  for  a  penal  statute  is  to 
be  construed  strictly  in  favpr  of  one  charged  with  violating  it,'^ 
but  it  has  been  held  that  "this  rule  is  not  violated  by  adopting 
the  sense  of  the  words  which  best  harmonize  with  the  object 
and  intent  of  the  legislature,  and  the  whole  context  of  the  statute 
must  be  construed   together,"^^    The  declaration  or   complaint 


1*  Bonner  v.  Franklin  Co-op. 
Assn.  4  Tex.  Civ.  App.  166,  23  S. 
W.  317. 

1"'  Chicago  &c.  R.  Co.  v.  People, 
217  111.  164,  75  N.  E.  368:  Bond  v. 
Wabash  &c.  R.  Co.,  67  Iowa  712. 
25  N.  W.  892,  23  Am.  &  Eng.  R. 
Cas.  608;  Omaha  &c.  R.  Co.  v. 
Hale.  45  Nebr.  418,  63  N.  W.  849; 
Whitehead  v.  Wilmington  &c.  R. 
Co.,  87  N.  Car.  255,  9  Am.  &  Eng. 
R.  Cas.  168. 

i«  State  V.  Indiana  &c.  R.  Co.,  133 
Ind.  69,  32  N.  E.  817,  18  L.  R.  A. 
502;  State  v.  Hirsch,  125  Ind.  207. 
24  N.  E.  1062,  9  L.  R.  A.  170.  In 
United  States  v.  Wiltberger,  5 
Wheaton  (U.  S.)  76,  5  L.  ed.  Z7, 
Marshall,  C.  J.,  said:  "Though 
penal  laws  are  to  be  construed 
strictly,  they  are  not  to  be  con- 
strued so  strictly  as  to  defeat  the 
obvious  intention  of  the  legislature. 
The  maxim  is  not  to  be  so  applied 
as  to  narrow  the  words  of  the 
statute  to  the  exclusion  of  cases 
which   those   words    in    their    ordi- 


nary acceptation,  or  in  that  sense 
in  which  the  legislature  has  ob- 
viously used  them,  would  compre- 
hend. The  intention  of  the  legis- 
lature is  to  be  collected  from  the 
words  they  employ.  '  Where  there 
is  no  ambiguity  in  the  words,  there 
is  no  room  for  construction."  In 
United  States  v.  Hartwell,  6  Wall. 
(U.  S.)  385,  18  L.  ed.  830,  Swayne, 
J.,  said:  "The  object  in  construing 
penal  as  well  as  other  statutes  is 
to  ascertain  the  legislative  intent. 
That  constitutes  the  law.  If  the 
language  be  clear  it  is  conclusive. 
There  can  be  no  construction  where 
there  is  nothing  to  construe.  The 
words  must  not  be  narrowed  to 
the  exclusion  of  what  the  legisla- 
ture intended  to  embrace;  but  the 
intention  must  be  gathered  from 
the  words  and  they  must  be  such 
as  to  leave  no  room  for  a  reasona- 
ble doubt  upon  the  subject.  It  must 
not  be  defeated  by  a  forced  and 
overstrict   construction." 


^S4\ 


i;  \iMx(>\i)S 


224 


must  ])rc'scnt  a  case  strictly  within  the  provisions  of  the  statute, 
not  leaving-  any  essential  facts  to  be  gathered  by  argument  or 
inference. ^^  Besides  being  strictly  construed,  these  statutes  carry 
no  extraterritorial  effect,  whether  the  j)enalty  be  to  the  public 
or  to  persons,  and  they  cannot  be  enforced  in  the  courts  of  an- 
other state,  either  by  force  of  the  statute  or  upon  the  principles 
of  comity.^*"  The  Supreme  Court  of  the  United  States  has  held, 
however,  that  a  statute  making  directors  personally  liable  to 
creditors  of  a  corporation  for  making  false  reports  may  be  en- 
forced anywhere,  deciding  that  while  such  a  statute  is  penal  in 
the  sense  that  it  should  receive  a  strict  construction  it  is  not 
penal  in  the  sense  that  it  cannot  be  enforced  in  a  foreign  state, 
for  it  gives  a  civil  remedy  at  the  suit  of  the  creditor  only,  meas- 
ured by  the  amount  of  the  debt."  It  has  also  been  held  by  the 
Supreme  Court  of  the  United  States  that  the  question  whether 
a  statute  is  penal  in  such  a  sense  as  to  forbid  its  enforcement  in  a 
foreign  jurisdiction,  "depends  upon  the  question  whether  its  pur- 
pose is  to  punish  an  offense  against  the  public  justice  of  the  state, 
or  to  afford  a  private  remedy  to  a  person  injured  by  the  wrongful 
act."2« 


I'' Whitcoraft  v.  A^andcrver,  12 
111.  235;  Western  U.  Tel.  Co.  v. 
Wilson,  108  Ind.  308,  9  N.  E.  172, 
16  Am.  &  Eng.  Corp.  Cas.  257; 
State  V.  Androscoggin  R.  Co.,  76 
Maine  411,  20  Am.  &  Eng.  R.  Cas. 
624:  Barter  v.  Martin,  5  ]\Iaine  76. 
Where  the  statute  says  that  the  ac- 
tion shall  be  brought  in  the  name 
of  the  people  of  the  state  of  Michi- 
gan, an  action  in  the  name  of  the 
prosecuting  attorney  for  and  on  be- 
lialf  of  the  people  of  the  state  of 
Michigan  will  lie.  People  v.  Brady, 
90  Mich.  459,  51  N.  W.  537. 

1*  Carnahan  v.  W.  U.  Tel.  Co., 
89  Ind.  526,  46  Am.  Rep.  175;  First 
National  Bank  v.  Price,  33  Md.  487, 
3  Am.  Rep.  204;  Derrickson  v. 
.Smith,  27  N.  J.  L.  166;  Scoville  v. 
Canfield,  14  Johns.  (N.  Y.)  338,  7 
.Am.  Dec.  467;  Blaine  v.  Curtis,  59 


Vt.  120,  7  Atl.  708,  59  Am.  Rep. 
702;  Ogden  v.  Folliott,  3  T.  R.  726; 
Sec  Western  U.  Tel.  Co.  v.  Hamil- 
ton, 50  Ind.  181;  Henry  v.  Sargeant, 
13  N.  II.  321,  40  .Am.  Dec.  146.  But 
sec  where  statute  is  partly  com- 
pensator}'. Great  Western  Mach. 
Co.  V.  Smith,  87  Kans.  331,  124  Pac. 
414,  Ann.  Cas.  1913E,  242. 

^^  Huntington  v.  Attrill,  146  U. 
S.  657,  13  Sup.  Ct.  224,  36  L.  ed. 
1123,  per  Graj^,  J.  See  Boyce  v. 
Wabash  &c.  Co..  63  Iowa  70.  18 
X.  W.  673,  50  Am.  Rep.  730,  23 
\ni.  (!v-  h'ng.  R.  Cas.  172,  in  wliich 
an  Iowa  Court  allowed  an  action 
for  double  damages  provided  by  an 
Illinois  statute;  also  Great  Western 
Mach.  Co.  V.  Smith,  87  Kans.  331, 
124  I'ac.  414,  Ann.  Cas.  1913E,  243. 

-"  Huntington  v.  .A.ttrill,  146  U.  S. 
657,  13  Sup.  Ct.  224,  36  L.  ed.  1123. 


225 


PENAL   OFFEKSES 


§842 


§842  (711).  Right  of  action  as  affected  by  penal  statutes — 
Effect  of  violation  as  proof  of  negligence. — Unless  the  common 
law  right  of  action  is  thereby  taken  away  in  express  terms  or  by 
necessary  implication,  the  penalty  imposed  by  a  penal  statute  is 
cumulative  only,  and  the  common  law  right  of  action  continues 
to  exist  unimpaired.-^  It  may,  perhaps,  be  laid  down  as  a  general 
rule  that  the  enactment  of  a  penal  statute  does  not  establish  a 
new  liability  aside  from  the  penalty  denounced  by  the  statute 
itself.  In  other  words,  a  penal  statute  cannot  ordinarily  be  re- 
garded as  the  foundation  of  a  new  right  of  action  in  addition  to 
that  prescribed,  and  the  best  reasoned  cases  hold  that  the  only 
new  liability  arising  from  the  neglect  of  such  purely  statutory 
duty  is  for  the  prescribed  penalty,^^  except,  perhaps,  where  the 


per  Gray,  J;  Dennick  v.  Railroad 
Co.,  103  U.  S.  11,  26  L.  ed.  439; 
Herrick  v.  Minneapolis  &c.  R.  Co., 
31  Minn.  11,  16  N.  W.  413,  47  Am. 
R.  771;  Chicago  &c.  R.  Co.  v.  Doyle, 
60  Miss.  977;  Knight  v.  West  Jer- 
sey R.  Co.,  108  Pa.  St.  250,  56  Am. 
Rep.  200;  Morris  v.  Chicago  &c. 
R.  Co.,  65  Iowa  727,  23  N.  W.  143, 
54  Am.  Rep.  39;  Higgins  v.  Central 
&c.  R.  Co.,  155  Mass.  176,  29  N.  E. 
534,  31  Am.  St.  544;  In  Mexican 
Natl.  R.  Co.  V.  Jackson  (Tex.  Civ. 
App.),  32  S.  W.  230,  it  was  held 
that  a  law  of  Mexico  making  negli- 
gence resulting  in  injury  to  another 
a  penal  oflfence,  and  also  giving  a 
right  of  action  civil  in  nature,  was 
not  penal  in  the  sense  that  the  civil 
remedy  could  not  be  enforced  in 
the  courts  of  Texas,  and  the  Texas 
court  awarded  damages,  although 
the  injury  occurred  in  Mexico.  See 
also  2  Am.  L.  Reg.  &  Rev.  (N.  S.) 
725. 

21  United    States    v.    Howard,    17 
Fed.  638;  Tyler  v.  W.  U.  Tel.  Co., 


54  Fed.  634;  Aldrich  v.  Howard,  7 
R.  I.  199;  Caswell  v.  Worth,  5  El. 
&  BI.  848,  per  Coleridge,  J.;  Couch 
v.  Steel,  3  El.  &  Bl.  402.  See  post, 
§  844. 

22  Hartford  v.  Talcott,  48  Conn. 
525,  40  Am.  Rep.  189;  Flynn  v.  Can- 
ton Co.,  49  Md.  312,  17  Am.  Rep. 
603;  Kirby  v.  Boylston  Market 
Asso.,  14  Gray  (Mass.)  249,  74  Am. 
Dec.  682;  Taylor  v.  Lake  Shore  &c. 
R.  Co.,  45  Mich.  74,  7  N.  W.  728,  40 
Am.  Rep.  457,  per  Cooley,  J.;  Hol- 
werson  v.  St.  Louis  &c.  R.  Co.,  157 
Mo.  216,  57  S.  W.  770,  SO  L.  R.  A. 
850,  861  (quoting  the  text  as  stat- 
ing the  law);  Vandyke  v.  Cincin- 
nati, 1  Disney  (Ohio)  532;  Phila- 
delphia R.  Co.  V.  Ervin,  89  Pa.  St. 
71,  33  Am.  Rep.  726;  Heeney  v. 
Sprague,  11  R.  I.  456,  23  Am.  Rep. 
502.  But  see  Bott  v.  Pratt,  33 
Minn.  323,  23  N.  W.  237,  53  Am. 
Rep.  47,  53  n.;  Jetter  v.  N.  Y.  &c. 
R.  Co.,  2  Abb.  Dec.  458.  See  also 
Bain  v.  Ft.  Smith  &c.  Co.,  116  Ark. 
125,    172    S.    W.    843    (ordinance): 


^^842 


RAILROADS 


226 


statute  prescribes  that  the  duty  shall  be  to  particular  persons 
or  to  a  particular  class  of  persons,  and  not  purely  a  public  duty.^^ 
In  one  instance,  however,  the  Supreme  Court  of  the  United 
States  held  in  the  case  of  the  death  of  a  boy  resulting  from  a 
violation  of  an  ordinance  requiring  railroad  companies  to  fence 
their  right  of  way  in  a  prescribed  manner,  that  **the  duty  is  due, 
not  to  the  city  as  a  municipal  body,  but  to  the  public,  considered 
as  composed  of  individual  persons;  and  each  person  specially 
injured  by  the  breach  of  the  obligation  is  entitled  to  his  individ- 


Indiana  &c.  Coal  Co.  v.  Neal,  166 
Ind.  458,  n  N.  E.  850;  Gibson  v. 
Kansas  City  &c.  Co.,  85  Kans.  346, 
116  Pac.  502,  Ann.  Cas.  1912D,  1103 
and  cases  cited  in  note.  In  his 
opinion  in  the  Michigan  case,  su- 
pra. Judge  Cooley  said:  "If  it  was 
only  a  public  duty  it  can  not  be 
pretended  that  a  private  action  can 
be  maintained  for  a  breacli  thereof 

Nevertheless,     the     burden 

that  individuals  are  required  to 
bear  for  the  public  protection  or 
benefit  maj^  in  part  be  imposed  for 
the  protection  or  benefit  of  some 
particular  individual  or  class  of  in- 
dividuals also,  and  then  there  may 
be  an  individual  right  of  action  as 
well  as  a  public  prosecution  of  a 
breacli  of  duty  which  causes  indi- 
vidual injury  ....  The  nature  of 
the  duty  and  the  benefits  to  be  ac- 
complished through  its  perform- 
ances must  generally  determine 
whether  it  is  a  duty  to  the  public 
in  part  or  exclusively,  or  whether 
individuals  may  claim  that  it  is  a 
duty  to  the  public  in  part  or  ex- 
clusively, or  wlicther  individuals 
may  claim  tliat  it  is  a  duty  im- 
posed wholly  or  in  part  for  their 
especial  benefit."  In  .\ldrich  v. 
Trip]),  11  R.  I.  141.  23  .\rn.  Rep.  434. 


the  plaintiff  sought  to  recover  dam- 
ages for  an  injury  arising  from  a 
violation  of  an  ordinance  which 
created  a  new  duty.  The  court 
said:  "We  do  not  suppose  that  the 
creation  of  new  civil  liabilities  be- 
tween individuals  was  any  part  of 
the  object  for  which  the  power  to 
enact  ordinances  was  granted."  On 
the  other  hand,  in  Jetter  v.  N.  Y. 
&c.  R.  Co.,  2  Abb.  Dec.  458,  the 
court,  taking  an  extreme  view  and 
overruling  some  previous  deci- 
sions, said:  "It  is  an  axiomatic 
trutli  that  ev^ery  person,  while  vio- 
lating an  express  statute,  is  a 
wrong-doer,  and  as  such  is  ex  ne- 
cessitate negligent  in  the  eye  of 
the  law,  and  everjf^  innocent  party 
whose  person  is  injured  by  the  act 
which  constitutes  the  violation  of 
the  statute  is  entitled  to  a  civil  rem- 
edy for  such  injury,  notwithstand- 
ing any  redress  the  public  may  also 
have." 

-^  Taylor  v.  Lake  Shore  &c.  R. 
Co.,  45  Mich.  74,  7  N.  W.  728,  40 
.\ni.  Rep.  457.  Sec  also  Monteith 
v.  Kokomo  &c.  Co.,  159  Ind.  149. 
152,  153,  64  N.  E.  610,  58  L.  R.  A. 
944,  and  cases  cited;  and  note  in 
47  I..  R.  A.  (N.  S.)  821. 


227 


PENAL   OFFENSES 


§842 


ual  compensation,  and  to  an  action  for  its  recovery. "2*  It 
is  also  well  settled  that  where  the  statute  prescribes  a  duty 
which  is  owino^  to  an  individual  or  class  of  individuals,  the 
fact  of  its  violation  may  constitute  negligence,  or  at  least 
])rima  facie  evidence  thereof,  and  contribute  an  important 
clement  of  the  injured  person's  cause  of  action,-^  even  though 
the  omission  of  the  duty  may  not  have  constituted  negli- 
gence before  the  passage  of  the  law.  It  has  been  held  that  non- 
performance of  such  statutory  duty,  resulting  in  injury  to  an- 
other, may  be  pronounced  to  be  negligence  as  a  conclusion  of 
law.-^  There  is,  however,  much  conflict  among  the  authorities  as 
to  how  far  the  violation  of  these  statutory  duties  should  be 
deemed  to  constitute  negligence.  In  some  states  the  statutes 
themselves  provide  that  where  injury  follows  violation,  the  viola- 
tion shall  constitute  a  prima  facie  case  of  negligence,"  and  in  one 
of  these  states  where  violation  of  the  statute  is  followed  by 
injury,  the  element  of  proximate  cause  has  been  conclusively 
presumed  by  the  courts.'^  These  last  decisions  are,  as  it  seems 
to  us,  unsound,  and  the  rule,  supported  by  the  weight  of  au- 


-*  Hayes  v.  Michigan  Cent.  R. 
Co.,  Ill  U.  S.  228,  4  Sup.  Ct.  369, 
28  L.  ed.  410,  per  Matthews,  J. 
Compare,  however,  Southern  R.  Co. 
V.  Cooper,  172  Ala.  505,  55  So.  211 
(but  not  those  in  service  of  com- 
pany); Bain  v.  Ft.  Smith  &c.  Co., 
116  Ark.  125,  172  S.  W.  843: 
Bischof  V.  Illinois  So.  R.  Co.,  232 
111.  446,  83  N.  E.  948,  13  Ann.  Cas. 
185. 

25  Hayes  v.  Michigan  Cent.  R. 
Co.,  Ill  U.  S.  228,  4  Sup.  Ct.  369, 
28  L.  ed.  410. 

26  Central  R.  &c.  Co.  v.  Smith, 
78  Ga.  694,  3  S.  E.  267,  34  Am.  & 
Eng.  R.  Cas.  1;  Terre  Haute  & 
Indianapolis  R.  Co.  v.  Voelker,  129 
Til.  540,  22  N.  E.  20,  39  Am.  &  Eng. 
R.  Cas.  615.  See  also  Stafiford  v. 
Chippewa  &c.  R.  Co.,  110  Wis.  331, 
85    N.   W.    1036,    1045,   citing   text; 


White's  Supp.  to  Thomp.  Neg. 
§  10  and  numerous  authnrities 
there  cited. 

-'  Columbus  &c.  R.  Co.  v.  Ken- 
nedy, 78  Ga.  646,  3  S.  E.  267,  31  Am. 
&  Eng.  R.  Cas.  92.  In  Mississippi, 
Georgia  and  Tennessee.  See  Chi- 
cago &c.  R.  Co.  V.  Trotter,  60  Miss. 
442;  Mobile  &c.  R.  Co.  v.  Dale,  61 
Miss.  206,  20  Am.  &  Eng.  R.  Cas. 
651;  Tennessee  R.  Co.  v.  Walker, 
11  Heisk.  (Tenn.)  383.  See  also 
Stafiford  v.  Chippewa  &c.  R.  Co., 
110  Wis.  331,  85  N.  W.  1036. 

2s  Tennessee  R.  Co.  v.  Walker, 
11  Heisk.  (Tenn.)  383;  Hill  v. 
Louisville  &c.  R.  Co.,  9  Heisk. 
(Tenn.)  823;  Nashville  &c.  R.  Co. 
V.  Thomas,  5  Heisk.  (Tenn.)  262. 
But  see  Louisville  &c.  R.  Co.  v. 
Connor,  9  Heisk.   (Tenn.)    19. 


§842 


KAILKOADS 


228 


thority,  is  that  while  one  who  violates  a  statute  or  an  ordinance-^ 
may  be  regarded  as  a  wrong-doer,  and  the  act  regarded  as  negli- 
gence, still  it  may  or  may  not  be  the  proximate  cause  of  the  in- 
jury complained  of  according  to  the  facts  of  the  particular  case. 
In  some  courts,  however,  it  is  held  that  the  mere  violation  of  a 
municipal  ordinance  is  not  negligence  per  se,  but  merely  evidence 
of  it.^°  It  is  generally  held,  and  this  we  regard  as  the  true  doctrine, 
that  the  element  of  proximate  cause  must  be  established,  and 
that  it  will  not  necessarily  be  presumed  from  the  fact  that  an 
ordinance  or  statute  has  been  violated. ^^  Negligence,  no  matter 
in  what  it  consists,  cannot  create  a  right  of  action  unless  it  is 
the  proximate  cause  of  the  injury  complained  of  by  the  plaintiff. 


-^  Wesley  City  Coal  Co.  v.  Heal- 
er. 84  111.  126;  St.  Louis  &c.  R.  Co. 
V.  Dunn,  78  111.  197;  Pennsylvania 
Co.  v.  Hensil,  70  Ind.  569,  36  Am. 
Rep.  188,  6  Am.  &  Eng.  R.  Cas.  79; 
Chicago  &c.  R.  Co.  v.  Boggs,  101 
Ind.  522,  51  Am.  Rep.  761;  Pennsyl- 
vania R.  Co.  v.  Stegemeier,  118  Ind. 
305,  309,  20  N.  E.  843,  10  Am.  St. 
136;  Indiana  &c.  R.  Co.  v.  Barn- 
hart,  115  Ind.  399,  410,  16  N.  E.  121; 
Pennsylvania  R.  Co.  v.  Horton,  132 
Ind.  189,  31  N.  E.  45;  Correll  v. 
Burlington  &c.  R.  Co.,  38  Iowa  120, 
18  Am.  Rep.  22;  Railway  Co.  v. 
Schneider,  45  Ohio  St.  678,  17  N. 
E.  321;  Baker  v.  Pendergast,  32 
Ohio  St.  494,  30  Am.  Rep.  620;  San 
Antonio  &c.  R.  Co.  v.  Bowles,  88 
Tex.  634,  32  S.  W.  880;  Wanless  v. 
N.  E.  R.  W.  Co.,  L.  R.  6  Q.  B.  481 
(L.  R.  7  H.  L.  Cas.  12).  See  also 
Salisbury  v.  Herchenroder,  106 
Mass.  458,  8  Am.  Rep.  354;  Balti- 
more City  R.  Co.  V.  McDonnell,  43 
Md.  552. 

•'"'  Hayes  v.  Michigan  Cent.  R. 
Co.,  Ill  U.  S.  228,  4  Sup.  Ct.  369, 
28  L.  ed.  410:  Bain  v.  Ft.  Smith  &c. 
Co.,   116  Ark.   125,   172   S.  W.  843; 


Van  Horn  v.  Burlington  &c.  R.  Co., 
59  Iowa  33,  U  N.  W.  752,  7  Am.  & 
Eng.  R.  Cas.  591;  Baltimore  &c.  R. 
Co.  V.  McDonnell,  43  ]\Id.  534;  Lane 
V.  Atlantic  Works,  111  Mass.  136; 
Hanlon  v.  South  Boston  &c.  R. 
Co.,  129  Mass.  310;  Faber  v.  St. 
Paul  &c.  R.  Co.,  29  Minn.  465,  13 
N.  W.  902,  8  Am.  &  Eng.  R.  Cas. 
277;  Liddy  v.  St.  Louis  R.  Co.,  40 
Mo.  506;  Kelley  v.  Hannibal  &c.  R. 
Co.,  75  Mo.  138;  Knupfie  v.  Knicker- 
bocker &c.  Co.,  84  N.  Y.  491;  Meek 
V.  Pennsylvania  R.  Co.,  38  Ohio  St. 
632,  13  Am.  &  Eng.  R.  Cas.  643,  and 
note;  Philadelphia  &c.  R.  Co.  v. 
Boyer,  97  Pa.  St.  91,  2  Am.  &  Eng. 
R.  Cas.  172.  Upon  principle  this 
seems  to  us  to  be  a  better  rule  than 
that  which  makes  the  violation  of 
an  ordinance,  or  even  a  statute, 
conclusive  proof  of  negligence  or 
negligence  per  se.  See  also  Hen- 
derson V.  Durham  Traction  Co.. 
132  N.  Car.  779,  44  S.  E.  598,  600, 
and  note  to  Ashley  v.  Kanawha  &c. 
Co..  9  Ann.  Cas.  840,  842. 

31  Hayes  v.  Michigan  Cent.  R. 
Co..  Ill  U.  S.  228,  4  Sup.  Ct.  369, 
28  L.  ed.  410,  15  Am.  &  Eng.  R. 


220 


PENAL  OFFENSES 


§843 


§843  (711a).  Whether  private  injury  essential  to  recovery 
of  penalty. — Proof  of  private  injury  is  not  required  under  the 
Wisconsin  statute  which  provides  that  if  any  railroad  corpora- 
tion shall  violate  any  of  the  regulations  of  the  statute  it  shall 
be  liable  to  any  person  injured  for  all  damages  and  "in  addition" 
shall  forfeit  not  less  than  the  sum  specified  as  a  penalty  to  be 
recovered  in  an  action  in  the  name  of  the  state. ^^- 

§844  (712).  Action  for  enforcement  of  penal  statutes. — 
Actions  for  the  enforcement  of  statutory  penalties  against  cor- 
porations are  generally  held  to  be  civil  actions.^^  In  jurisdictions 
in  which  corporations  are  held  to  be  included  in  the  term  "per- 
sons" in  general  statutes,  the  action  should  conform  to  the  usual 
or  prescribed  action  under  such  statutes,  be  it  civil  or  criminal. 
It  is  held  in  some  jurisdictions  which  still  recognize  common  law 
crimes  and  actions,  that  the  statutory  penalty  may  be  recovered 


Cas.  394:  Pennsylvania  R.  Co.  v. 
Hensil,  70  Ind.  569,  36  Am.  Rep. 
188;  Baltimore  &c.  R.  Co.  v.  Young, 
146  Ind.  374,  45  N.  E.  479;  Lake 
Erie  &c.  R.  Co.  v.  Mikesell,  23  Ind. 
App.  395,  55  N.  E.  488;  Philadel- 
phia &c.  R.  Co.  V.  Stebbing,  62  Md. 
504.  19  Am.  &  Eng.  R.  Cas.  36: 
Kelley  v.  Hannibal  &c.  R.  Co.,  75 
Mo.  138,  13  Am.  &  Eng.  R.  Cas. 
638.  See  also  post,  §§  1648,  1649. 
The  text  is  also  quoted  with  ap- 
proval in  Henderson  v.  Durham 
Traction  Co..  132  N.  Car.  779,  44 
S.  E.  598.  600.  See  upon  the  gen- 
eral subject  as  to  whether  such  vio- 
lation is  negligence  per  se  and  also 
as  to  proximate  cause,  the  notes  in 
47  L.  R.  A.  (N.  S.)  821,  and  49  L. 
R.  A.  (N.  S.)  660,  et.  seq. 

32  State  v.  Wisconsin  &c.  R.  Co., 
128  Wis.  79,  107  N.  W.  295. 

33  Katzenstein  v.  Raleigh  &c.  R. 
Co..  84  N.  Car.  688,  6  Am.  &  Eng. 
R.  Cas.  464;  Rockwell  v.  State,  11 


Ohio  130;  Edenton  v.  Wool,  65  N. 
Car.  379;  3  Black's  Com.  160.  See 
also  Chaffee  v.  United  States,  18 
Wall.  (U.  S.)  516,  21  L.  ed.  908: 
Corporation  &c.  v.  Eaton,  4  Cranch 
C.  C.  352;  Durham  v.  State,  117  Ind. 
477,  19  N.  E.  327;  McCoun  v.  New 
York  Central  &c.  R.  Co.,  50  N.  Y. 
176;  Western  Union  Tel.  Co.  v. 
Scircle,  103  Ind.  227,  2  N.  E.  604; 
Davis  V.  State,  119  Ind.  555,  22  N. 
E.  9;  City  of  Owosso  v.  Mich.  Cent. 
R.  Co.,  183  Mich.  688,  150  N.  W. 
323.  See  also  note  in  27  L.  R.  A. 
(N.  S.)  739.  As  elsewhere  stated, 
however,  it  is  held  that  an  action 
to  recover  a  penalty,  although  civil 
in  form,  is  essentially  criminal  in 
its  nature.  Ante,  §  746.  But  it  is 
held  that  the  state  need  not  prove 
the  offense  beyond  a  reasonable 
doubt.  State  v.  Chicago  &c.  R. 
Co.,  122  Iowa  22,  96  K.  W.  904. 
101  Am.  St.  254. 


§845 


KAILHOADS 


230 


by  indictment  or  information  unless  such  mode  is  excluded  by 
the  statute,  and  that  the  prescribed  remedy  is  only  cumulative 
to  the  one  given  by  llie  common  law.^'*  In  some  other  jurisdic- 
tions it  has  been  held  that  both  the  statutory  penalty  and  the 
actual  damages  may  be  recovered  in  one  action  where  both  arise 
from  the  same  transaction.^^  In  these  actions  it  has  been  held 
that  it  is  not  required  that  the  plaintiff  shcjuld  prove  his  case 
with  the  same  degree  of  certainty  that  he  would  if  the  action 
were  criminal  in  form.^'' 

§845  (713).  The  informer's  rights — Parties. — The  informer 
cannot  maintain  an  action  in  his  own  name  unless  plainly  author- 
ized by  statute,  nor  can  he  control  such  action,  without  such 
authority,  when  brought.^''  It  is  held  that  the  penalty  is  a  for- 
feiture to  the  sovereign  for  the  violation  of  the  law  and  the 
share  accorded  the  informer  is  simply  an  inducement  to  the  citi- 
zen to  apprise  the  puldic  officer  of  violations.''^  It  has  also  been 
held  that  a  complaint  is  defective,  on  demurrer,  if  the  iiif(,»rmer  is 
made  plaintiff"  when  only  the  state  can  sue,  and  in  one  case  leave 
to  amend  by  making  the  state  plaintiff  was  refused,^^  but  other 


3*  United  States  v.  Howard,  17 
Fed.  638;  State  v.  Wabash  &c.  R. 
Co.,  89  Mo.  562;  State  v.  Corwin, 
4  Mo.  609;  Hodgman  v.  People,  4 
Den.  (N.  Y.)  235;  State  v.  Helgen, 
1  Speer  (S.  Car.)  310;  State  v. 
Meyer,  1  Speer  (S.  Car.)  305;  State 
V.  Maze,  6  Humph.  (Tenn.)  17.  It 
is  held  that  the  Missouri  statute 
permits  one  bringing  a  qui  tarn  ac- 
tion to  bring  the  action  either  civ- 
illy or  criminally  bj-  information. 
State  V.  Hannibal  &c.  Co.,  30  Mo. 
A  pp.  494. 

35  Wells  V.  New  Haven  &c.  Co., 
151  Mass.  46,  23  N.  E.  724,  21  Am. 
St.  423,  44  Am.  &  Eng.  R.  Cas. 
491n;  Kansas  City  &c.  R.  Co.  v. 
Spencer,  72  Miss.  491,  17  So.  168; 
Hodges  V.  Wilmington  &c.  R.  Co., 
105  N.  Car.  170,  10  S.  E.  917.     See 


also  McFarland  v.  Mississippi 
River  &c.  Ry.  Co.,  175  Mo.  422, 
75  S.  W.  152. 

^^TexR^  &c.  R.  Co.  V.  Mahaffey 
(Tex.  Civ.  App.),  81  S.  W.  1047. 

■'*"  Colburn  v.  Swett,  1  Mete. 
(Mass.)  232;  Nye  v.  Lamphere,  2 
Gray  (Mass.)  297;  Omaha  &c.  R. 
Co.  v.  Hale,  45  Nebr.  418,  63  N. 
W.  849,  50  Am.  St.  554,  and  note; 
Seward  v.  Beach,  29  Barb.  (N.  Y.) 
239;  Fleming  v.  Bailey.  5  East  313; 
Barnard  v.  Gostling,  2  East  569; 
Drew  v.  Hilliker,  56  Vt.  641.  But 
see  Chicago  &c.  Co.  v.  Howard,  38 
111.  414. 

38  Omaha  &c.  R.  Co.  v.  Hale,  45 
Nebr.  418,  63  N.  W.  849,  50  Am.  St. 
554,  and  note. 

39  St.  Louis  &c.  R.  Co.  V.  State, 
56  Ark.  166,  19  S.  W.  572. 


231 


PKNAL   OFFENSES 


§845 


courts  have  permitted  amendments.*"  Where  the  statute  pro- 
vides for  a  recovery  of  the  penalty  by  an  action  in  the  name  of 
the  state  by  the  prosecuting-  attorney  for  the  benefit  of  himself 
and  the  school  fund  the  case  is  not  removable  to  the  federal 
court,  although  the  compariy  is  a  citizen  of  another  state,  on  the 
ground  that  the  prosecuting  attorney  is  the  real  party  in  inter- 
est."*^ ft  is  said  that  the  same  strict  construction  precludes  the 
state  from  prosecuting  an  action  where  the  statute  gives  that 
right  to  the  informer,*-  but  to  exclude  the  state,  the  right  in  the 
informer  must  be  plainly  conferred  by  the  statute,  although  not 
necessarily  in  express  words,*^  and  it  has  been  held  that  where 
one  moiety  goes  to  the  state,  the  state  may  prosecute  for  the 
whole,  unless  the  informer  has  commenced  a  qui  tarn  action.** 
It  would  seem  that  the  offense  should  not  go  unpunished  and  the 
state  thereby  lose  its  portion  of  the  penalty,  simply  because  no 
citizen  has  elected  to  prosecute  an  action  in  the  role  of  informer. 
It  has  also  been  held  that  where  the  state  prosecutes  a  civil  action 
for  the  penalty  or  when  the  grand  jury  returns  an  indictment  it 
must  appear  of  record  that  the  informer  complained  in  the  pre- 
scribed manner,  under  the  statute,*^  or  the  whole  penalty  will  go 
to  the  state.  No  acts  can  render  one  an  informer  unless  he 
actually  gave  the  information  leading  to  conviction,*^  nor  can  a 


40  See  Maggett  v.  R.ibcrts.  108 
N.  Car.  174.  12  S.  E.  890. 

41  Southern  R.  Co.  v.  State  (Ind. 
App.),  72  N.  E.  174.  See  also  Hunt- 
ington V.  Attrill,  146  U.  S.  657.  13 
Sup.  Ct.  224,  36  L.  ed.  1123. 

42  United  States  v.  Laescki,  29 
Fed.  699:  Higby  v.  People,  5  Hi. 
165.  See  also  McFarland  v.  Mis- 
sissippi River  &c.  R.  Co.,  175  Mo. 
422,  75  S.  W.  152. 

■*'^  The  clause  "who  may  prose- 
cute." or  "who  prosecutes"  has 
been  held  sufficient  to  show  the 
legislative  intent.  Drew  v.  Hilli- 
ker,  56  Vt.  641.  A  common  inform- 
er has  the  right  to  sue  under  a 
statute  giving  the  penalty  "to  any 
person   who   may   prosecute   there- 


for." N3'e  v.  Lamphere,  2  Gray 
CNIass.)  297.  In  United  States  v. 
Laescki,  29  Fed.  699;  the  use  of  the 
language  "recoverable,  one-half  to 
the  use  of  the  informer"  in  the  stat- 
ute was  held  to  authorize  the  in- 
former to  sue.  See  also  Lynch  v. 
The   Economy,  27  Wis.  69. 

4*  State  V.  Bishop,  7  Conn.  181: 
Commonwealth  v.  Howard,  13 
Mass.  221;  Rex.  v.  Hymen.  7  T. 
R.  532. 

45  Commonwealth  v.  Frost,  5 
^lass.  53;  State  v.  Smith.  49  N.  H. 
155;  Commonwealth  v.  Davenger. 
10  Phila.  (Pa.)  478. 

4<'>  Brewster  v.  Gelston,  1  Paine 
(U.  S.)  426. 


§  845  RAILROADS  232 

person  claim  an  informer's  share  of  the  penalty  simply  because 
he  is  the  sole  witness  in  the  case.*^  Some  of  the  courts  hold  that 
if  the  party  injured  is  authorized  to  sue  for  the  penalty,  any  one 
of  several  parties  jointly  injured  by  the  same  offense  may  sue 
and  recover  the  penalty,*^  but  it  has  been  held,  on  the  other  hand, 
that  a  penal  action  cannot  be  maintained  by  several  persons 
jointly  as  common  informers  unless  the  statute  authorizes  such 
a  proceeding,*^  although  it  seems  that  if  the  penalty  is  specific 
and  does  not  rest  in  computation,  only  one  action  can  be  brought, 
and  the  parties  injured  must  join  in  a  single  action  in 
order  that  all  may  secure  their  respective  shares.^"  The 
party  who  first  commences  a  qui  tam  action  thereby  ac- 
quires an  interest  in  the  penalty  of  which  he  cannot  be  divested 
by  a  subsequent  suit  by  another  informer,  even  though 
judgment  first  be  awarded  in  the  latter  suit,^^  but  while 
the  informer,  by  first  instituting  suit  or,  perhaps  by  giving 
the  necessary  information  to  the  prosecutor,  acquires  a  right 
superior  to  any  other  informer  of  the  same  offense,  he  does 
not  acquire  a  vested  right  to  the  penalty  until  after  judgment,'' 
and  his  right  to  a  share  of  a  forfeiture  does  not  vest  until  the 
money  is  ready  for  distribution.  Accordingly,  his  share  of  the 
penalty  will  be  determined  by  the  law  in  force  at  the  time  of  the 
final  decree  directing  distribution.^^  By  some  of  the  statutes  a 
private  citizen  is  given  the  right  to  sue  in  his  own  name  to  re- 

4"  Williamson    v.    State,    16    Ala.  -'^  United  States  v.  About  Twen- 

431.     See  United  States  v.  Connor,  ty-five    Thousand    Gallons    &c.,    1 

138  U.  S.  61,  11  Sup.  Ct.  229,  34  L.  Ben.  (U.  S.)  367;  United  States  v. 

ed.  860.  Twenty-five    Thousand     Segars,    5 

48  Phillips  V.  Bevans,  23  N.  J.  L.  Blatchf.  (U.  S.)  500;  United  States 
373.  V.    Eight    Barrels    Distilled    Spirits, 

49  Commonwealth  v.  Winchester,  1  Ben.  (U.  S.)  472;  United  States 
3  Pa.  L.  J.  Rep.  34.  v.  Connor,  138  U.  S.  61,  11  Sup.  Ct. 

50  Edwards  V.  Hill,  11  111.  22.  229,  34  L.  ed.  860.     But  in  Indiana, 

51  Pike  V.  Madbury,  12  N.  PI.  262;  Missouri,  Kentucky  and  elsewhere 
Beadleston  v.  Sprague,  6  Johns.  this  common  law  rule  has  been  al- 
(N.  Y.)  101.  tered    somewhat   by  statute   and   it 

52  Confiscation  cases,  7  Wall.  (U.  is  only  necessary  that  the  penalty 
S.)  454,  19  L.  ed.  196;  St.  Mary's  should  have  accrued  before  the  re- 
V.   State,   12   Ga.   475;    Chicago   &c.  peal  of  the  statute  imposing  it. 

R.  Co.  V.  Adler.  56  111.  344. 


233  PENAL  OFFENSES  §  846 

cover  the  penalty,  where,  after  a  certain  time,  the  proper  officers 
having  had  notice  of  the  offense,  fail  to  sue  for  the  state,  and  in 
such  a  case  it  is  no  defense  that  the  suit  is  brought  without  au- 
thority of  such  officers  or  without  notice  to  them.^*  Upon  re- 
covery, the  informer  properly  designated  on  the  record  as  such 
may  secure  his  share  of  the  penalty  by  motion  to  have  it  paid 
to  him.'^'^  It  has  been  held  that  the  fact  that  the  informer  rode  on 
trains  repeatedly  for  the  sole  purpose  of  accumulating  penalties 
accruing  by  reason  of  overcharges  in  fare  will  not  constitute  a 
defense,  and  the  penalties  may  be  collected. ^^  In  one  instance  it 
was  held  that  in  case  of  the  compromise  of  an  action  for  a  pen- 
alty the  informer  was  entitled  to  his  share  of  the  amount  the 
same  as  if  it  had  been  prosecuted  to  judgment."  But,  ordinarily, 
penal  actions  brought  qui  tam  cannot  be  compromised  without 
leave  of  the  court,^*  and  as  a  general  rule  it  will  require  that  the 
portion  due  the  state  be  paid.^^  Furthermore,  the  law  does  not 
concern  itself  with  the  motives  of  the  party  seeking  to  enforce 
a  penalty.  This  is  entirely  outside  the  issue,  and  it  is  not  in  any 
wise  material  that  the  informer  at  the  time  of  noting  a  violation 
of  the  law  had  in  mind  the  matter  of  collecting  the  statutory 
penalty.^" 

§846  (714).  The  penalty — Computation. — Where  the  statute 
simply  prescribes  a  maximum  and  minimum  penalty,  and  does 
not  specify  who  shall  fix  the  amount,  it  has  been  held  that  the 
question  is  for  the  jury."  And  if  the  statute  directs  that  the  pen- 
si  Commissioners  V.  Purdy,  13  57  Hull  v.  Welsh,  82  Iowa  117,  47 
Abb.  Pr.  (N.  Y.)  434,  36  Barb.  (N.      N.  W.  982. 

Y.)    266;    Root    v.    Alexander,    63  58  Raynham     v.     Rounseville,     9 

Hun  557,  18  N.  Y.  S.  632.  See  Pick.  (Mass.)  44;  Caswell  v.  Allen, 
Pomroy  v.  Sperry,  16  How.  Pr.  10  Johns.  (N.  Y.)  118;  Middleton 
(N.  Y.)  211.  V.    Wilmington    &c.    R.    Co.,   95    N. 

55  Hull    V.    Welsh,    82    Iowa    117,       Car.  167. 

47  N.  W.  982.  59  Wardens  v.   Cope,  2  Ired.   (N. 

56  St.  Louis  &c.  R.  Co.  V.  Gill,  54  Car.)  44.  See  Bradway  v.  LeWor- 
Ark.  101,  15  S.  W.  18,  11  L.  R.  A.  thy,  9  Johns.  (N.  Y.)  251;  Haskins 
452;  Fisher  v.  New  York  &c.  R.  v.  Newcomb,  2  Johns.  (N.  Y.)  405. 
Co.,  46  N.  Y.  644;  Parks  v.  Nash-  ^o  Hennion  v.  New  York  St.  R. 
ville  &c.  R.  Co.,  13  Lea  (Tenn.)   1,  Co.,  101  N.  Y.  S.  100. 

49  Am.  Rep.  655,  18  Am.  &  Eng.  R.  "  McDaniel  v.  Gate  City  Co.,  79 

Cas.  404.  Ga.  58.  3  S.  E.  693;  Hines  v.  Dar- 


S846 


RAILROADS 


234 


alty  shall  equal  double  the  value  of  certain  goods,  the  jury  may 
determine  the  value  of  the  goods  by  verdict,  and  the  court  may 
double  the  amount,*'-  but  if,  after  the  proper  instructions,  the 
jury  find  for  a  specific  sum,  that  sum  is  presumed  to  be  twice  the 
value  of  the  goods,  unless  otherwise  shown  in  the  verdict.*'-^  If 
the  offense  is  single  and  continuous  and  it  is  plain  that  the  statute 
only  contemplates  one  offense,  it  is  held  that  only  one  penalty 
will  have  accrued  up  to  the  time  the  action  is  iDrought,''*  but 
where  a  specific  penalty  is  declared  for  each  separate  offense,  or 
for  each  day  or  week  of  its  continuance,  the  amount  of  the  judg- 
ment may  be  a  matter  of  computation  for  the  court,  after  con- 
viction for  each  offense.*'^  In  some  cases,  however,  it  has  been 
maintained  that  it  was  not  the  legislative  intent  that  an  informer 
be  allowed  to  open  a  book  account  of  penalties  earned,  and,  de- 
laying suit  a  vear,  bring  an  action  for  an  enormous  sum,  and  that 
but  one  penalty  could  be  recovered  for  all  delinquencies  prior 


ling,  99  Mich.  47,  57  N.  W.  1081. 
It  seems  to  us  that  a  statute  which 
does  not  designate  the  penalty,  or 
give  some  rule  for  ascertaining  it, 
should  be  held  invalid. 

62  Dygert  v.  Schenck.  23  Wend. 
(N.  Y.)  446,  35  Am.  Dec.  375,  and 
note. 

63  Cross  v.  United  States,  1  Gall. 
(U.  S.)  26. 

64  It  has  also  been  held  that  if 
the  offense  was  committed  by  sev- 
eral persons,  only  one  penalty  can 
be  recovered,  and  the  offense  will 
not  be  regarded  a  distinct  offense 
by  each.  Palmer  v.  Conly,  4  Den. 
(N.  Y.)  374;  Conley  v.  Palmer,  2 
N.  Y.  182;  Ingcrsoll  v.  Skinner,  1 
Den.  (N.  Y.)  540.  Held,  under 
Ohio  statute  providing  that  railway 
companies  shall  provide  a  black- 
board and  register  the  time  of  ar- 
rival, lateness,  etc.,  of  each  train, 
and  providing  a  penalty  of  $10  for 
"each  violation  of  the  provisions  of 
the   act."   that   failure   to  provide   a 


])lackboard  renders  the  company 
liable  to  only  one  penalty,  although 
a  large  number  of  trains  were  un- 
registered. State  v.  Cleveland  &c. 
R.  Co.,  8  Ohio  C.  C.  604.  Under 
the  differently  worded  Indiana  stat- 
ute it  was  held  that  one  penalty 
could  be  collected  for  each  train 
not  registered,  no  blackboard  hav- 
ing been  erected.  State  v.  Indiana 
&c.  R.  Co.,  133  Ind.  69,  2,2  N.  E. 
817.  18  L.  R.  A.  502. 

65  Where  the  penalty  was  for 
each  day's  continuance,  it  was  held 
unnecessary  to  declare  in  separate 
counts,  but  all  were  properly 
grouped  together.  Toledo  &c.  R. 
Co.  V.  Stephenson,  131  Ind.  203, 
30  N.  E.  1082.  See  also  Gulf  &c. 
R.  Co.  V.  State  (Tex.  Civ.  App.), 
169  S.  W.  385.  Rut  the  second 
offense  must  be  of  the  same  nature 
as  the  first,  and  there  must  be  con- 
viction. Scot  v.  Turner,  1  Root 
(Conn.)   163. 


235 


PENAL  OFFENSES 


§846 


to  each  action,*^''  and  this  is  on  the  additional  (j^round  that  the 
penalty  is  not  for  the  satisfaction  of  the  injured  party,  for  he 
still  has  his  action  for  damages.  But  where  the  language  of  the 
statute  is  plain,  courts,  although  sometimes  reluctant,  have  felt 
bound  to  award  a  penalty  for  each  violation,  where  the  sum 
amounted  to  many  thousands  of  dollars/'"  Following  the  rule  of 
strict  construction,  it  has  been  held  that  only  cme  penalty  can  be 
assessed  where  the  plaintiff  has  paid,  in  one  payment,  an  account 
covering  a  large  number  of  overcharges,  where  the  statute  pro- 
vided a  penalty  for  each  "collection  or  demand.""^  In  enforcing 
the  federal  statute  relating  to  confinement  of  animals,  the  courts 
have  refused  to  construe  the  law  so  as  to  make  the  confinement 
of  each  animal  a  separate  offense,  where  a  large  shipment  was 
made/^  And  in  a  recent  Texas  case,  where  the  statute  provided 
that  the  company  should  be  liable  for  a  certain  penalty  for  each 
week  it  failed  to  have  water  closets  at  passenger  stations,  it  was 
held  that  the  penalty  could  be  recovered  for  each  week  the  com- 
pany failed  to  comply  with  the  stattite  at  any  station  in  the 
county,  but  not  for  each  station  at  which  it  failed  to  comply 
with  the  statute.'"  We  have  elsewhere  discussed  the  constitu- 
tionalitv  of  statutes  giving  double  damages.'''^    Such  statutes  are 


66  Fisher  v.  New  York  &c.  R. 
Co.,  46  N.  Y.  644;  Parks  v.  Nash- 
ville &c.  R.  Co..  13  Lea  (Tenn.)  1. 
49  Am.  Rep.  655;  Murray  v.  Gal- 
veston &c.  R.  Co.,  63  Tex.  407,  51 
Am.  Rep.  650,  and  note.  This  seems 
to  us  the  true  doctrine.  But  the 
statute  may  so  plainly  provide  for 
separate  prosecutions  that  nothing 
remains  for  the  courts  but  to  en- 
force it  as  it  is  written.  The  Indi- 
ana statute  in  regard  to  noting  the 
time  of  arrival  of  trains  on  a  black- 
board authorizes  a  cumulative  pen- 
alty. Southern  R.  Co.  v.  State 
(Tnd.  App.),  72  N.  E.  174,  165  Ind. 
613.  75  X.  E.  272:  State  v.  Indiana 
&o.  R.  Co..  133  Ind.  69,  32  N.  E. 
817,  18  L.  R.  A.  502. 


'■"  Sec  State  v.  Kansas  City  R. 
Co.,  32  Fed.  722,  per  Brewer,  J. 
See  also  Gulf  &c.  R.  Co.  v.  State 
(Tex.  Civ.  App.),  169  S.  W.  385. 

68  Porter  v.  Dawson  Bridge  Co., 
157  Pa.  St.  367,  27  Atl.  730.  The 
practice  of  giving  penalties  to  in- 
formers has  been  condemned  by 
able  jurists,  and  certainly  statutes 
giving  such  penalties  should  not  be 
extended  by  construction. 

69  United  States  v.  Boston  &c.  R. 
Co.,  15  Fed.  209. 

70  ^Missouri  &c.  R.  Co.  v.  State 
(Tex.  Civ.  App.),  97  S.  W.  724. 
Compare,  however.  Gulf  &c.  R.  Co. 
V.  State  (Tex.  Civ.  App."),  169  S.  W. 
385. 

-1  See  ante,   §  785. 


^  S-il  HAILHOADS  236 

in  their  nature  penal/-  but  are  construed  by  some  courts  as 
here  remedial.  Statutes  giving  the  party  injured  by  overcharges 
a  right  of  action  for  an  amount  ecjual  to  three  and  even  five 
times  the  legal  amount  of  freight  have  been  upheld." 

§  847  (715).     When  "penalty"  and  when  "liquidated  damages." 

■ — It  is  often  a  close  question  whether  the  statute  in  prescribing 
an  amount  to  be  paid  to  the  person  injured  by  its  disregard 
contemplates  the  enforcement  of  a  penalty  or  the  liquidation  of 
damages.  It  arises  when  the  court  proceeds  to  give  effect  to  the 
widely  different  rules  of  construction  which  apply  respectively 
to  penal  statutes  and  to  statutes  creating  or  defining  a  civil 
liability.  It  has  been  held  in  condemnation  proceedings  where 
by  the  terms  of  the  inquisition  the  company  is  required  to  pay  a 
fixed  sum  to  the  owner  in  case  it  fails  to  perform  specified  con- 
ditions that  such  sum  is  not  a  penalty  but  liquidated  damages.^^ 
And  the  rule  was  held  to  be  substantially  the  same  as  that  which 
prevails  in  cases  of  contracts.  Where  it  is  stated  in  "clear  and 
unambiguous  terms  that  a  certain  sum  shall  be  paid  by  way  of 
compensation  upon  a  breach  of  the  contract,  or  where  the  cov- 
enant is  to  do  several  acts  the  damages  arising  from  the  breach 
of  which  are  uncertain,  and  incapable  of  being  ascertained  by  any 
fixed  pecuniary  standard,"  the  sum  so  fixed  will  be  considered  as 
liquidated  damages  and  not  as  a  penalty.^^  On  the  other  hand  it 
has  been  as  clearly  laid  down  that  where  the  breach  is  capable 
of  accurate  valuation  and  the  parties  have  agreed  on  a  different 
sum  to  be  paid  in  default,  such  sum  is  to  be  regarded  as  a  penalty 

"2  Missouri  Pac.  R.  Co.  v.  Humes,  statute  awarding  five  times  the  le- 

115  U.  S.  512,  6  Sup.  Ct.  110,  29  L.  gal    freight    rate    to    the    victim    of 

ed.   463,    22    Am.    &    Eng.    R.    Cas.  overcharges   was   upheld  in   Herri- 

557;    Bettys    v.    Milwaukee    &c.    R.  man  v.   Burlington   &c.   R.    Co.,   57 

Co.,  37  Wis.  323.  Towa   187,  9  N.  W.  378,  10  N.  W. 

"Burkholder  v.  Union  Trust  Co.,  340,  9  Am.  &  Eng.  R.  Cas.  339. 

82  Mo.  572,  23  Am.  &  Eng.  R.  Cas.  ■^'»  Pennsylvania  R.  Co.  v.  Reich- 

656;  Missouri  Pac.  R.  Co.  v.  Humes,  crt,  58  Md.  261,  10  Am.  &  Eng.  R. 

22   Am.    &   Eng.    R.   Cas.    557,   and  Cas.  429. 

authorities  cited;  Spealman  v.  Mis-  7.5  Geiger  v.  The  Western  Mary- 

sonri   Pac.   R.   Co.,  71   Mo.  434.     A  land  R.  Co.,  41  Md.  4. 


237  PEXAL  OFFENSES  §  847 

and  not  as  liquidated  damages/"  The  reasoning  in  these  cases 
has  l)een  applied  to  statutes,  in  regard  to  which  the  same  dis- 
tinction has  been  drawn,  and  it  has  been  held  that  laws  prescrib- 
ing the  amount  to  be  paid  upon  a  violation,  where  without  refer- 
ence -to  the  statute  the  person  injured  has  a  cause  of  action, 
simply  prescribe  the  measure  of  damages  and  do  not  denounce  a 
penalty;"  in  other  words,  that  such  statutes  are  not  penal  but 
remedial.''*  In  some  states  it  is  held  that  the  "forfeiture"  as 
designated  by  the  statute  is  a  penalty  as  is  also  the  attorney's 
fee  allowed,^^  but  while  the  attorney's  fees  may  be  allowed  in 
addition  to  the  statutory  amount  prescribed,  it  is  said  that  it  can 
not  be  maintained  that  they  constitute  a  "penalty  for  exercising 
the  right  of  defense."*"  The  Connecticut  statute  providing  that 
railroad  companies  shall  be  liable  for  fires  kindled  by  sparks 
from  their  locomotives,  although  they  are  free  from  negligence, 
is  held  not  to  be  penal  but  remedial,*^  and  statutes  allowing 
treble  the  usurious  interest  collected,  double  damages  for  fraudu- 
lently removing  property,  and  double  damages  for  injuries  re- 
sulting from  defects  in  highways  have  respectively  been  held  to 
be  remedial  statutes  which  should  be  liberally  construed.*^  Even 
revenue  laws  imposing  forfeitures  for  fraud  were  held  by  the 
Supreme  Court  of  the  United  States  not  to  be  technically  penal  in 

-6  St.  Louis  &c.  R.  Co.  V.  Shoe-  82  Iowa  312,  48  N.  W.  98,  12  L.  R. 

maker,    27    Kans.    677,    11    Am.    &  A.  436,  and  note,  31  Am.  St.  477. 

Eng.  R.  Cas.  379.  si  Newton  v.    New   York   &c.   R. 

77  Houston  &c.  R.  Co.  v.  Harry,  Co.,  56  Conn.  21,  12  Atl.  644,  32 
63  Tex.  256,  18  Am.  &  Eng.  R.  Cas.  Am.  &  Eng.  R.  Cas.  347.  In  our 
502.  opinion  this  doctrine  is  of  doubtful 

78  Frohock    v.    Pattee,    38    Maine  soundness. 

103;    Quimby  v.    Carter,   20    Maine  82  Qj-^y  v.  Bennett,  3  Met. (Mass.) 

218;    Reed    v.    Northfield,    13    Pick.  522;    Reed    v.    Northfield,    13    Pick. 

(Mass.)   94,  23  Am.  Dec.  662,  and  (Mass.)  94,  23  Am.  Dec.  662;  Bay 

note.  City  &c.  R.  Co.  v.  Austin,  21  Mich. 

79  Dow  V.  Beidelman,  49  Ark.  455,  390;  Stanley  v.  Wharton,  9  Price 
31  Am.  &  Eng.  R.  Cas.  14;  Kansas  301.  But  see,  contra,  Hines  v.  Wil- 
Pac.  R.  Co.  V.  Mower,  16  Kans.  mington  &c.  R.  Co.,  95  N.  Car.  434, 
573;  Kansas  Pac.  R.  Co.  v.  Yanz,  59  Am.  R.  250;  Coble  v.  ShofFner. 
16  Kans.  583.  75  N.  Car.  42;  Cohn  v.  Neeves,  40 

8<^  Burlington  &c.  R.  Co.  v.  Dey,       Wis.  393. 


§848 


RAILROADS 


238 


such  a  sense  as  to  require  strict  construction.*^  On  the  other 
hand,  it  is  held  that  statutes  relating  to  criminal  offenses  and  all 
statutes  which  impose  as  punishment  any  penalties,  pecuniary 
or  otherwise,  or  forfeitures  of  money  or  other  property,  or  which 
provide  for  the  recovery  of  damages  beyond  just  compensation  to 
the  party  injured,  whether  recovered  in  a  suit  by  the  state  or  by 
a  private  individual,  are  penal  in  the  sense  that  they  fall  under 
the  rule  of  strict  construction.^*  This  is  the  only  doctrine  that 
can  be  defended  on  principle.  The  question  must,  however, 
necessarily  depend  largely  upon  the  language  of  the  particular 
statute  and  is  to  be  determined,  in  part,  by  the  apparent  intention 
that  the  statute  carries  of  providing  for  redress  or  for  punish- 
ment. 

§848  (716).  Indictment  of  railroad  companies  for  causing 
death. — In  some  of  the  states  railroad  companies  are  by  statute 
made  subject  to  indictment  and  fine  in  case  the  death  of  any 
person  is  caused  by  their  negligence  or  that  of  their  servants. 
Such  statutes  have  been  held  constitutional  and  valid.^^  It  has 
been  held  under  the  old  New  Hampshire  statute  that  the  form  of 
the  indictment  is  governed,  in  the  main  at  least,  by  the  principles 
of  the  criminal  law,*®  but  as  the  fine  or  penalty  is  recoverable, 
under  most  of  the  statutes,  for  the  widow,  children,  next  of  kin, 
heirs  or  other  designated  person  more  or  less  dependent  upon 


83  Taylor  v.  United  States,  3 
How.  (U.  S.)  197,  11  L.  ed.  559. 

84  Schooner  Bolina,  1  Gall.  (U. 
S.)  75;  Brooks  v.  Western  Union 
Tel.  Co.,  56  Ark  224,  19  S.  W.  572; 
Cumberland  «S:c.  Canal  Corp.  v. 
Hitchings,  57  Maine  146;  Bay  City 
&c.  R.  Co.  V.  Austin,  21  Mich.  390; 
Camden  &c.  R.  Co.  v.  Briggs,  22 
N.  J.  L.  623;  Hines  v.  Wilmington 
&c.  R.  Co.,  95  N.  Car.  434,  59  Am. 
Rep.  250:  Henderson  v.  Sherborne, 
2  M.  &  W.  236:  Nicholson  v.  l-ields, 
7  H.  &  N.  810. 

85  Boston  &c.  R.  Co.  v.  State,  32 
N.  H.  215,  and  authorities  cited  in 
following  notes   infra.     But,   in   the 


absence  of  statute,  the  company  is 
usually  not  held  subject  to  indict- 
ment. Commonwealth  v.  Illinois 
Cent.  R.  Co.,  152  Ky.  320,  153  S.  W. 
459,  45  L.  R.  A.  (N.  S.)  344;  People 
V.  Rochester  R.  Co.,  59  Misc.  347, 
112  N.  Y.  S.  362.  But  see  Smith 
V.  Louisville  &c.  R.  Co.,  75  Ala. 
449,  21  Am.  &  Eng.  R.  Cas.  157. 

^•5  State  V.  Manchester  &c.  R.  Co., 
52  N.  H.  528;  State  v.  Wentworth, 
Zl  N.  H.  196.  For  the  history  of 
the  New  Hampshire  legislation  and 
tlic  present  statute  in  that  state,  see 
French  v.  Mascoma  &c.  Co.,  66 
N.  H.  90.  20  Atl.  363. 


239 


PEXAIi   OFFENSES 


§848 


the  deceased,  it  is  said  that  such  statutes  are  designed  to  take 
the  place  of  Lord  Campbell's  act/^  and  it  is  held  that  the  indict- 
ment must  show  the  existence  of  some  person  of  the  class  desig- 
nated.*'^ It  is  also  held,  for  the  same  reason,  that  the  same  rules 
of  evidence  and  principles  of  law  are  to  be  applied  on  the  trial 
as  in  analogous  civil  actions  for  damages.^"  Thus,  under  the 
Maine  statute,  it  has  been  held  that  the  deceased  must  be  shown 
to  have  been  free  from  contributory  negligence.""  But  the  con- 
trary has  been  held  as  to  passengers  in  Massachusetts.®^  In 
Maine,  but  not  in  Massachusetts,  it  seems  that  the  remedy  by 
indictment  is  limited  to  cases  where  the  injured  person  dies  im- 
mediately, and  is  not  an  employe  of  the  company.''-  The  proof 
should  support  the  theory  of  the  indictment,  and  a  material 
variance  may  be  fatal  to  a  recovery.''^ 


87  State  V.  Grand  Trunk  R.  Co., 
58  Maine  176,  4  Am.  Rep.  258. 

58  State  V.  Grand  Trunk  &c.  R. 
Co..  60  Maine  145;  Commonwealth 
V.  Eastern  R.  Co.,  5  Gray  (Mass.) 
473;  State  v.  Gilmore,  24  N.  H.  461. 
Compare  Commonwealth  v.  Boston 
&c.  R.  Co.,  11  Cush.  (Mass.)  517. 

59  State  V.  Grand  Trunk  R.  Co., 
58  Maine  176,  4  Am.  Rep.  258;  State 
V.  Maine  Cent.  R.  Co.,  11  Maine 
490,  21  Am.  &  Eng.  R.  Cas.  216; 
State  V.  Manchester  &c.  R.  Co.,  52 
N.  H.  528. 

90  State  V.  Maine  Cent.  R.  Co., 
76  Maine  357,  49  Am.  R.  622,  and 
note.  19  Am.  &  Eng.  R.  Cas.  312; 
State  V.  Maine  Cent.  R.  Co.,  81 
Maine  84,  16  Atl.  368.  See  also 
State  V.  Manchester  &c.  R.  Co.,  52 
N.  H.  528. 

91  Commonwealth  v.  Boston  &c. 
R.  Co.,  134  Mass.  211;  Merrill  v. 
Eastern  R.  Co.,  139  Mass.  252,  29 
N.  E.  666.  As  to  one  not  a  pas- 
senger the   same   ruling  was   made 


as    in    Maine.      Commonwealth    v. 
Pioston  &c.  R.  Co.,  126  Mass.  61. 

92  State  V.  [Maine  Cent.  R.  Co.. 
60  Maine  490;  State  v.  Grand  Trunk 
^c.  R.  Co.,  61  Maine  114,  14  Am. 
Rep.  552.  Rut  see  Commonwealth 
V.  Metropolitan  &c.  R.  Co.,  107 
.Mass.  236;  Daley  v.  Boston  &c.  R. 
Co.,  147  Mass.  101,  16  N.  E.  690, 
Zi  Am.  &  Eng.  R.  Cas.  298;  Com- 
monwealth V.  Boston  &c.  R.  Co., 
133  ?\rass.  383,  8  Am.  &  Eng.  R. 
Cas.  297.  The  Massachusetts  stat- 
ute has  been  changed  several  times, 
and  under  some  of  the  acts  death 
need  not  result,  and  special  pro- 
vision is  also  made  for  recovery 
where  a  servant  is  killed. 

9s  See  State  v.  Maine  Cent.  R. 
Co..  81  Maine  84,  16  Atl.  368;  Com- 
monwealth V.  Fitchburg  R.  Co..  120 
Mass.  Zll\  Commonwealth  V.  Fitch- 
burg R.  Co.,  126  Mass.  472;  Com- 
monwealth V.  Boston  &c.  R.  Co., 
133  Mass.  383,  8  Am.  &  Eng.  R. 
Cas.  297. 


§  849  RAILROADS  240 

§849  (jn).  Violation  of  Sunday  laws. — It  has  been  held  in 
some  instances  that  a  railroad  company  is  a  person  within  the 
purview  of  general  penal  statutes  against  "persons"  requiring 
the  observance  of  Sunday.'^*  Many  states  have  regulations  look- 
ing particularly  to  the  operation  of  railroads  on  that  day.  Some 
prohibit  the  running  of  freight  or  excursion  trains,  and  the  load- 
ing or  unloading  of  freight.  Some  designate  the  hours  during 
which  trains  may  run  or  the  emergency  which  shall  excuse  their 
running  during  the  prohibited  hours.^^  These  statutes  are  up- 
held as  falling  properly  within  the  police  power,  and  they  are 
enforced  by  penalty  recoverable  sometimes  by  civil  action  and 
in  some  states  by  indictment.  The  weight  of  authority,  how- 
ever, is  to  the  efifect  that  the  running  of  trains  is  excluded  from 
the  statute  on  the  ground  of  its  being  "a  work  of  necessity," 
where  such  exception  is  made,^*^  but  some  well  reasoned  decisions 
have  held  it  not  to  be  so.^^  The  Georgia  statute,  prohibiting  the 
running  of  freight  trains  on  the  Sabbath,  has  been  held  not  to 
apply  to  a  railroad  which  begins  and  ends  in  other  states  and 
which  does  not  run  a  distance  greater  than  thirty  miles  in 
Georgia.^^ 

§  850  (718).  Indictment  of  railroad  company  for  maintaining 
a  nuisance. — A  railroad  company  may  be  indicted  for  maintain- 

^*  Sparhawk  v.  Union  &c.  R.  Co.,  ward    of   trains    loaded   with    stock 

54  Pa.   St.  401,  439;  State  v.  Balti-  is  a  work  of  necessity  and  not  ille- 

more   &c.    R.    Co.,    15   W.   Va.  362,  gal.      Philadelphia    &c.    R.    Co.    v. 

2>6    Am.    Rep.    803.      Tn    West    Vir-  Lehman,  56  Md.  209,  40  Am.  Rep. 

ginia     the     law     has     since     been  415. 

changed  by  statute.     State  v.  Nor-  ^^  Sparhawk  v.  Union  &c.  R.  Co., 

folk  &c.  R.  Co.,  2)Z  W.  Va.  440,  10  54   Pa.   St.   401;   Commonwealth   v. 

S.  E.  813,  43  Am.  &  Eng.  R.  Cas.  Jeandcll,  2  Grant's  Cas.   (Pa.)   506; 

330.  Johnston   v.   Com.,  22   Pa.    St.   102. 

"■"' Jackson  V.  State,  88  Ga.  787,  15  This    rule    has    been    changed    by 

S.  E.  905.  statute   in    Pennsylvania.     The    de- 

«6  Augusta    R.    Co.    v.    Renz,    55  cision    of   Strong,   J.,   in   Sparhawk 

Ga.   126;   Commonwealth  v.   Louis-  v.    Union    &c.    R.    Co.    supra,    is    a 

ville    &c.    R.    Co.,    80    Ky.    291,    44  valuable    contribution    to    the    law 

Am.  Rep.  475;  Smith  v.  New  York  on  this  subject. 

&c.  R.  Co.,  46  N.  J.  L.  7,  18  Am.  ss  Griggs   v.   State,    126   Ga.   442, 

&  Eng.  R.  Cas.  399.     Carrying  for-  55  S.  E.  179. 


241 


PENAL  OFFENSES 


§850 


Ing  a  nuisance."''  Thus,  railroad  companies  have  been  indicted 
for  placing  and  leaving  cars  in  a  public  highway,^  for  failing  to 
keep  a  crcjssing  in  repair,-  for  failure  to  give  warnings  or  signals 
at  crossings,^  for  unlawfully  cutting  through  and  obstructing  a 
public  highway,*  and  for  permitting  pools  of  water  to  form  on 
their  land  and  become  stagnant.^  So,  they  are  liable  for  main- 
taining a  private  nuisance  to  those  who  are  specially  injured 
thereby.*^  But  there  are  many  acts  that  might  constitute  a 
nuisance  if  performed  by  an  individual  which  will  not  constitute 


s'9  Commonwealth  v.  New  Red- 
ford  &c.  Co.,  2  Gray  (Mass.)  339; 
Northern  Cent.  R.  Co.  v.  Common- 
wealth, 90  Pa.  St.  300.  5  Am.  & 
Eng.  R.  Cas.  318;  State  v.  Vermont 
Cent.  R.  Co.,  27  Vt.  103;  Reg.  v. 
Great  North  &c.  R.  Co.,  9  Q.  B. 
315;  Louisville  &c.  R.  Co.  v.  State, 
3  Head  (Tenn.)  523,  75  Am.  Dec. 
778;  note  in  14  Am.  &  Eng.  R.  Cas. 
152,  and  authorities  in  following 
notes,  infra.  And  a  general  rail- 
road statute  providing  a  method 
for  compelling  a  railroad  company 
to  maintain  structures  in  accord- 
ance with  law  does  not  abrogate 
the  common  law  remedy  by  indict- 
ment for  encroachment  on  a  high- 
waJ^  State  v.  Lackawana  R.  Co. 
(N.  J.),  90  Atl.  1103;  State  v.  Mor- 
ris &c.  R.  Co.,  23  N.  J.  L.  360. 

1  Cincinnati  R.  Co.  v.  Common- 
wealth, 80  Ky.  137;  State  v.  West- 
ern &c.  R.  Co., '95  N.  Car.  602; 
State  V.  Troy  &c.  R.  Co.,  57  Vt. 
144;  post,  §  852.  See  also  Becker 
V.  State,  33  Ind.  App.  261,  71  N.  E. 
188:  Mason  v.  Ohio  River  R.  Co., 
51  W.  Va.  183,  41  S.  E.  418,  421, 
citing  te.xt. 

-  Paducah  &c.  R.  Co.  v.  Com- 
monwealth. 80  Ky.  147,  10  Am.  & 
Eng.  R.  Cas.  318;  State  v.  Morris 


&c.  R.  Co.,  23  N.  J.  L.  360,  and 
authorities  cited;  People  v.  New 
York  &c.  R.  Co.,  74  N.  Y.  302; 
Memphis  &c.  R.  Co.  v.  State,  87 
Tenn.  746,  11  S.  W.  946;  post  §  852. 

3  Louisville  &c.  R.  Co.  v.  Com- 
monwealth, 13  Bush  (Ky.)  388,  26 
Am.  Rep.  205,  and  note;  Louisville 
&c.  R.  Co.  V.  Commonwealth,  80 
Ky.  143,  44  Am.  Rep.  468. 

•*  Pittsburgh  &c.  R.  Co.  v.  Reich, 
101  111.  157;  Commonwealth  v. 
Nashua  &c.  R.  Co.,  2  Gray  (Mass.) 
54;  Fanning  v.  Osborne,  102  N.  Y. 
441;  Reg.  v.  Longton  Gas  Co.,  2 
El.  &  E.  651;"  post,  §852. 

5  Salem  v.  Eastern  R.  Co.,  98 
Mass.  431,  96  Am.  Dec.  650.  This, 
however,  was  not  a  prosecution  by 
indictment,  but  was  an  action  by  a 
city,  under  a  statute,  to  recover  the 
expense  of  removing  the  nuisance. 
And  it  is  a  penal  offense  under  the 
Kentuckj'  statute  for  a  railroad 
company  to  pollute  the  waters  of 
a  stream  with  deleterious  and 
deadly  substance.  Commonwealth 
V.  Louisville  &c.  R.  Co.,  175  Ky. 
267,  194  S.  W.  345. 

6  Baltimore  &c.  R.  Co.  v.  Fifth 
Baptist  Church,  108  U.  S.  317.  2 
Sup.  Ct.  719,  27  L.  ed.  739.  11  Am. 
&  Eng.  R.  Cas.  IS;  Little  Rock  R. 


i?850 


RAILROADS 


242 


a  nuisance  by  a  railroad  company.  This  is  especially  true  where 
the  alleged  nuisance  merely  affects  the  public.  A  railroad  com- 
pany authorized  by  the  legislature  to  construct  and  operate  a 
road  for  the  i)uldic  use  is  therel:)y  relieved  from  many  of  the  con- 
sequences attending  the  construction  and  operation  of  a  road  by 
an  individual  without  such  authority,  and  it  may,  perhaps,  be 
stated  as  a  general  rule  that,  so  long  as  it  keeps  within  the  scope 
of  the  powers  and  authority  granted,  a  railroad  company  is  not 
liable  either  civilly  or  criminally  for  a  nuisance  which  is  the 
necessary  result  of  the  construction  and  operation  of  its  road,  in 
accordance  with  its  charter,"  although  it  may  be  made  liable  for 
many  acts  of  commission  or  omission  by  express  legislation 
under  the  police  power.  It  has  been  held  that  a  provision  in  the 
charter  of  a  turnpike  company  imposing  a  penalty  for  failing  to 


Co.  V.  Brooks,  39  Ark.  403,  43  Am. 
Rep.  277,  17  Am.  &  Eng.  R.  Cas. 
152:  Jones  v.  Railroad  Co.,  107 
Mass.  261;  Pennsylvania  R.  Co.  v. 
Angel,  41  N.  J.  Eq.  316,  7  Atl.  432. 
56  Am.  Rep.  1 ;  Cogswell  v.  New 
York  &c.  R.  Co.,  103  N.  Y.  10.  8 
N.  E.  537,  56  Am.  Rep.  6,  and  note; 
Brown  v.  Eastern  &c.  R.  Co..  22 
Q.  B.  391,  Zl  Am.  &;  Eng.  R.  Cas. 
558. 

"  Randall  v.  Jacksonville  &c.  R. 
Co.,  19  Fla.  409,  17  Am.  &  Eng.  R. 
Cas.  184;  Georgia  R.  &c.  Co.  v. 
Maddox,  116  Ga.  64,  42  S.  E.  315, 
321,  citing  text;  State  v.  Louisville 
&c.  R.  Co.,  86  Ind.  114,  10  Am.  & 
Eng.  R.  Cas.  286;  Rogers  v.  Ken- 
nebec &c.  R.  Co.,  35  Maine  319: 
Chope  V.  Detroit  &c.  R.  Co.,  Z1 
Mich.  195,  26  Am.  Rep.  512;  Eaton 
V.  Boston  &c.  R.  Co..  51  N.  H.  504. 
12  Am.  Rep.  147;  Uline  v.  New 
York  Cent.  &c.  R.  Co.,  101  N.  Y. 
98,  4  N.  E.  536,  54  Am.  Rep.  661: 
Danville  &c.  R.  Co.  v.  Common- 
wealth, li  Pa.  St.  29;  Rex  v. 
Pease.    4    B.    &    Ad.    30.      See    also 


Louisville  &c.  Co.  v.  Jacobs.  109 
Tenn.  727,  72  S.  W.  954.  61  L.  R.  A. 
188.  189,  citing  text.  Certainly  this, 
is  true  as  to  the  state,  but  it  is 
frequently  said  that  the  legislature 
can  not  authorize  a  private  nui- 
sance, and  it  can  not  take  away  or 
destroy  individual  rights,  such  as 
the  right  of  access  by  authorizing 
additional  burdens  upon  a  high- 
way. Elliott  Roads  and  Streets, 
(3d  ed.)  484,  485.  and  authorities 
cited.  Where  property  has  been 
taken,  however,  under  the  right  of 
eminent  domain  the  property  own- 
ers are  presumed  to  have  been  com- 
pensated at  the  time  it  was  taken, 
for  the  inconvenience  arising  from 
the  ordinary  operation  of  the  road. 
Clark  V.  Hannibal  &c.  R.  Co.,  Z(> 
:\lo.  202;  Porterficld  x.  Bond,  38 
Fed.  391:  Dearborn  v.  Boston  &c. 
R.  Co.,  24  N.  H.  179;  Chicago  &c. 
Co.  V.  Locb,  118  111.  203,  8  N.  E. 
460,  59  Am.  Rep.  341,  and  note,  and 
numerous  authorities  cited;  Lafay- 
ette &c.  Co.  V.  New  -Mbany  &c. 
Co.,   13   Ind.  90,  74   Am.  Dec.   246; 


243 


pen.Uj  offenses 


§851 


keep  its  road  in  repairs  does  not,  ipso,  facto,  take  away  its  lia- 
bility to  indictment,®  and  it  has  also  been  held,  on  the  other 
hand,  that  a  corporation  cannot  be  indicted  for  maintaining  'i 
nuisance  while  in  the  hands  of  a  receiver.''  But,  while  this  is 
doubtless  true  wdien  the  nuisance  is  created  and  maintained  by 
the  receiver,  we  think  there  may  be  cases  where  the  company 
remains  in  existence,  in  which  the  company  mig-ht  be  held  liable 
for  a  nuisance  caused  by  itself  and  not  connected  with  the  opera- 
tion of  the  road  by  the  receiver. 

§851  (718a).  Indictment  under  separate  coach  act — Vari- 
ance.— In  m.-niy  states  there  are  statutes  requiring  separate 
coaches  for  white  people  and  for  colored  people.  A  railroad  com- 
pany, indicted  for  failure  to  furnish  separate  coaches  for  the 
transportation  of  white  and  colored  passengers  under  a  statute 
making  that  an  ofifense,  cannot  be  convicted  where  the  proof 
merely  shows  a  discrimination  in  the  quality  and  convenience  of 
the  separate  coaches  and  this  is  made  another  offense  by  the 
statute.^" 

§852  (719).  Obstruction  of  highways. — Railroad  compa- 
nies, in  many  jurisdictions,  are  liable  to  indictment  for  the  ob- 
struction of  public  highways,  sometimes  under  general  statutes 


Swinney  v.  Fort  Wayne  &c.  Co., 
59  Ind.  205;  Lafayette  &c.  Co.  v. 
Mnrdock,  68  Ind.  137;  Indiana  &c. 
Co.  V.  Allen,  113  Ind.  308,  15  N.  E. 
451,  3  Am.  St.  650;  White  v.  Chi- 
cago &c.  Co.,  122  Ind.  317,  23  N.  E. 
782,  7  L.  R.  A.  257.  Dunsmore  v. 
Central  &c.  R.  Co.,  72  Iowa  182,  33 
N.  W.  456;  Cnsbj^  v.  Owensboro 
Railway  Co.,  10  Bush  (Ky.)  288; 
Randle  v.  Pacific  &c.  Co.,  65  IMo. 
325;  Parrot  v.  Cincinnati  &c.  Rail- 
way Co.,  10  Ohio  St.  624;  Struthers 
V.  Dunkirk  &c.  Railway  Co.,  87  Pa. 
St.  282.  See  also  Pennsylvania  Co. 
v.  TJppincott,  116  Pa.  St.  472,  9  Atl. 
o71.  2  Am.  St.  618;  Pennsylvania  R. 
Co.  V.  Marchant,  119  Pa.  St.  541,  13 


Atl.  690,  4  Am.  St.  659.  A  city 
ordinance  attempting  to  authorize 
the  obstructing  of  a  highway  cross- 
ing for  thirty  minutes  has  been  held 
unreasonable.  J.  K.  &  W.  H.  Gil- 
crest  Co.  v.  Des  Moines,  128  Iowa 
49,  102  N.  W.  831. 

8  Susquehanna  &c.  Turnpike  Co. 
V.  People,  15  Wend.  (N.  Y.)  267; 
President  &c.  v.  People,  9  Barb. 
(N.  Y.)   161. 

9  State  V.  Wabash  R.  Co.,  115 
Ind.  466,  17  N.  E.  909,  1  L.  R.  A. 
179;  State  v.  Vermont  Cent.  R.  Co., 
30  Vt.  108. 

^0  Illinois  &c.  R.  Co.  v.  Common- 
wealtli.  74  S.  W.  1076,  25  Ky.  L. 
295. 


§  852  RAILROADS  244 

and  sometimes  under  statutes  directed  specifically  against  them.''^ 
In  Tennessee  it  is  held  that  a  railroad  company  is  indictable, 
under  the  common  law,  for  obstructing  highways  while  con- 
structing their  road,  il  they  can  prevent  obstruction  of  the  high- 
way by  building  bridges  or  substituting  a  road,  which  must  be 
done  within  a  reasonable  time,  and  that  this  is  the  rule,  whether 
the  charter  prohibits  the  obstruction  or  not.^=^  In  most  of  the 
states  the  matter  is  regulated  by  statutes  which  prescribe  the 
penalty  and  the  mode  of  collecting  it."  but  in  the  absence  of 
statutes  the  railroad  company  is  amenable  to  the  common  law. 
In  Indiana  the  statute  imposes  a  penalty  upon  "any  person" 
who  shall,  "unnecessarily  and  to  the  hindrance  of  passengers," 
obstruct  any  highway,  and  declares  that  the  word  "persons" 
shall  here  include  corporations.  Strictly  construing  this  statute, 
the  court  held  that  an  action  seeking  to  recover  the  penalty  for 
failure  to  restore  a  highway,  after  construction  of  the  railroad, 
would  not  lie,  but  said  that  the  company  could  be  compelled,  by 
mandate,  to  restore  the  highway  to  its  original  condition.^^  Un- 
der the  same  statute  the  company  was  required  to  pay  the  pen- 
alty for  each  day  of  the  continuance  of  obstruction,  where  the 
road  was  constructed  at  such  a  grade  as  to  make  the  highway 
passing  under  it  impassable.^^  Railroad  companies,  in  most 
states,  are  made  liable  to  penalties  for  obstructing  a  passage 

11  State  V.  Morris  &c.  R.  Co.,  23  Illinois  &c.  R.  Co.  v.  State.  71  Miss. 
X.  J.  L.  360;  Northern  Cent.  R.  Co.  253,  14  So.  459;  Corning  v.  Head, 
V.  Commonwealth,  90  Pa.  St.  300;  33  N.  Y.  S.  360,  86  Hun  (N.  Y.)  12; 
Louisville  &c.  R.  Co.  v.  State,  3  Northern  Cent.  R.  Co.  v.  Common- 
Head  (Tenn.)  523,  75  Am.  Dec.  wealth,  90  Pa.  St.  300;  Pittsburgh 
778;  State  v.  Vermont  Cent.  R.  Co.,  Szc.  R.  Co.  v.  Commonwealth,  101 
27  Vt.  103,  107.  See  also  Becker  Pa.  St.  192:  State  v.  Floyd,  39  S. 
V.  State,  33  Ind.  App.  261.  71  N.  E.  Car.  23,  17  S.  E.  505. 

188.  14  Cummins  v.    Evansville   &c.   R. 

12  Commonwealth  v.  Erie  &c.  R.  Co..  115  Ind.  417,  18  N.  E.  6:  citing 
Co.,  27  Pa.  St.  339,  67  Am.  Dec.  Indianapolis  &c.  R.  Co.  v.  State, 
471;  Louisville  &c.  R.  Co.  v.  State,  37  Ind.  489;  State  v.  Demaree,  80 
3  Head  (Tenn.^  523,  75  Am.  Dec.  Ind.  519;  Clawson  v.  Chicago  &c. 
778.  R.  Co.,  95  Ind.  152. 

I'' State  V.  Dubuque  &c.  Railroad  i"' Toledo  &c.  R.  Co.  v.  Stephen- 

Co.,   88   Iowa   508,   55   N.   W.   727:       son,  131  Ind.  203,  30  X.  E.  1082. 


245 


PENAL  OFFENSES 


§852 


over  a  hij^hway  by  allowing  their  trains  to  stand  on  crossings 
beyond  a  reasonable  or  necessary  time.^"  It  has  been  held  that 
the  simple  stopping  of  trains  on  the  highway  does  not  constitute 
the  offense  unless  it  has  actually  obstructed  travel. ^^  A  railroad 
company  has  been  held  not  to  be  liable  to  a  fine  for  obstructing 
a  street  in  a  town  having  no  ordinance  on  the  subject  where  the 
statute  provides  for  a  fine  for  obstructing  a  street  for  a  longer 
time  "than  the  ordinance  shall  prescribe. "^^  So  a  railroad  com- 
pany may  be  liable  for  the  acts  of  its  servants  in  obstructing 
streets  in  violation  of  law,  notwithstanding  its  instructions  to 
its  servants  to  conform  to  the  law."  Railroad  companies  neces- 
sarily have  the  right  to  construct  their  road  upon  their  right  of 
way  over  highways,  but  the  common  law,  and,  in  many  states, 
special  laws  relating  to  highways,  require  that  they  shall  do  so 
without  unnecessary  inconvenience  to  the  public.  The  right  of 
way  over  public  highways  is  generally  obtained  on  the  condi- 
tion, either  implied  or  specified  in  the  grant  or  condemnation 
proceedings,  that  after  construction  the  highway  shall  be  re- 
stored to  a  condition  at  least  as  good  as  the  original,  and  upon 
failure  of  such  restoration  prosecution  may  follow,-^  and   it  is 


16  See  Commonwealth  v.  Boston 
&c.  R.  Co.,  135  Mass.  550;  Illinois 
&c.  R.  Co.  V.  State,  71  Miss.  253, 
14  So.  459;  ante,  §  850.  And 
cities  usually  have  power  to  pass 
ordinances  to  that  effect  under 
charter  authority  to  control  streets, 
prevent  obstruction,  and  the  like. 
City  of  Owosso  v.  Michigan  Cent. 
R.  Co.,  183  Mich.  688.  150  N.  W. 
323. 

"Illinois  &c.  R.  Co.  v.  People, 
49  111.  App.  538.  540,  542.  See  also 
Hinchman  v.  Pere  Marquette  R. 
Co.,  136  Mich.  341,  99  N.  W.  277; 
65  L.  R.  A.  553;  Crowley  v.  Chi- 
cago &c.  R.  Co.,  122  Wis.  287,  99 
N.  W.  1016.  But  this  must  depend 
upon  the  particular  statute  in- 
volved. 


18  Illinois  &c.  R.  Co.  v.  State,  71 
Miss.  253,  14  So.  459. 

19  Commonwealth  v.  New  York 
&r.  R.  Co.,  112  Mass.  412. 

20  People  v.  Chicago  &  Alton  R. 
Co.,  67  111.  118:  Chicago  &c.  R.  Co. 
v.  People,  44  III.  App.  632;  Padu- 
cah  &c.  R.  Co.  V.  Commonwealth. 
80  Ky.  147,  10  Am.  &  Eng.  R.  Cas. 
318;  People  v.  New  York  &o.  R. 
Co..  89  N.  Y.  266,  10  Am.  &  Eng. 
R.  Cas.  266;  Pittsburgh  &c.  R.  Co. 
V.  Commonwealth.  101  Pa.  St.  192, 
10  Am.  &  Eng.  R.  Cas.  321;  State 
V.  Ohio  River  R.  Co..  38  W.  Va. 
242,  18  S.  E.  582;  State  v.  Monon- 
gahela  R.  Co.,  37  W.  Va.  108.  16 
S.  E.  519.  See  Louisville  &c.  R. 
Co.  V.  Commonwealth.  16  Ky.  L. 
68,  26  S.  W.  536. 


§  853  RAILROADS  246 

not  necessary  that  a  demancl  nrsi  be  made  upon  the  defenchmt 
to  restore  the  highway.-^  Where  the  company  claims  to  have 
constructed  a  sufficient  sul^stitute.for  the  highway  impaired  the 
question  is  for  the  jury.-- 

§  853   (720).     Failure  to  maintain  accommodations  at  stations. 

— It  is  generally  conceded  that  railroad  companies  ma}',  by  stat- 
ute, be  required  to  maintain  such  station-houses  as  will  accom- 
modate their  passengers,  and  it  has  even  been  held  by  some 
courts,  in  the  absence  of  express  statutory  requirement,  that 
mandamus  will  lie  to  compel  the  construction  of  a  station  at  a 
proper  and  necessary  place. -^  But  in  some  states  there  are  stat- 
utes prescribing  penalties  for  such  omission,  which  may  be 
enforced  by  suit,^*  and  it  has  been  held,  in  the  absence  of  a  penal 
statute,  that  where  the  station  is  poorly  kept  and  is  unsuitable 
for  its  purpose,  the  company  may  be  liable  to  indictment  and 
fine  for  criminal  negligence  in  the  performan.ee  of  its  public 
duties."  Where  two  companies  had  both  violated  a  statute  by 
not  providing  waiting-rooms  at  the  crossing  of  their  roads,  it 
was  held  that  either  was  liable  separately,  and  that  they  need  not 
be  joined  as  defendants,  and  one  company  was  compelled  to  pay 
the  penalty  for  each  day  of  the  continuance  of  the  violation. ^^ 

21  Corning  v.   Head.  3.3   N.  Y.   S.  R.  Co.,  83  AIo.  144,  25  Am.  &  Eng. 

360.  86  Hun  (N.  Y.)  12.  R.  Cas.   133;   State  v.   Concord  &c. 

=2  State  V.   Monongahela    R.   Co.,  R.    Co.,    59   N.    H.   85;    Bonham    v. 

2>7  W.  Va.   108,  16  S.  E.  519;  Rob-  Columbia    &c.    R.    Co..   26    S.    Car. 

erts  V.  Chicago  &c.  R.  Co.,  35  Wis.  353,  2  S.  E.  127,  30  Am.  &  Eng.  R. 

679.  Cas.  177;  State  v.  Kansas  City  &c. 

23  State,  ex  rel.  Mattoon  v.  Re-  R.  Co.,  32  Fed.  722.  See  also  as  to 
publican  &c.  R.  Co.,  17  Nebr.  647,  penalty  for  failure  to  furnish  freight 
52  Am.  Rep.  424,  22  Am.  &  Eng.  R.  cars,  note  in  15  L.  R.  A.  (N.  S.) 
Cas.  500;  State,  ex  rel.  Moore  v.  7?)2>.  As  to  heating  cars,  see  note 
Chicago  &c.  R.  Co..  19  Nebr.  476.  in  42  T..  R.  A.  (N.  S.)  110.  And  as 
27  N.  W.  434.  Sec  also  note  to  to  penalty  for  delay  in  delivery  or 
Minneapolis  &c.  R.  Co.  v.  Railroad  destruction  of  freight,  see  note  in 
Com.,  136  Wis.  146,  116  N.  W.  905,  20  L.  R.  A.  (N.  S.)  126. 

in  17  L.  R.  A.  (N.  S.)  821.     But  see  25  McKinney   v.    T.    C.    R.    Co.,    6 

ante,  §  739.  Towa  Ry.  Com.  557. 

24  State  v.  Alabama  &c.  Co.,  67  2g  State  v.  Kansas  City  &c.  R. 
^'i-  .  647,  7  So.  502,  42  Am.  &  Eng.  Co.,  32  Fed.  722,  per  Brewer,  J. 

R.    Cas.  681;   State  v.  Wabash   &c. 


247  PENAL  OFFENSES  §  853 

Where  it  was  made  the  duty  of  the  raihuad  commission  to  direct 
the  building  of  station-houses  and  to  prescribe  their  dimensions, 
the  comi)any  was  held  not  liable  to  the  penalty  for  each  day  of 
a  violation  of  the  order  of  the  commission,  as  the  commissioners 
had  failed  to  prescribe  the  dimensions."'  In  most  of  the  states 
there  are  statutes  requiring  railway  companies  to  maintain  sta- 
tions and  freight  depots  either  under  the  order  of  railway  com- 
missioners or  where  some  prescribed  population  or  amount  of 
business  exists  to  demand  them,  and  in  some  cases  the  offices 
and  waiting  rooms  are  required  to  be  open  and  in  condition  to 
receive  the  pul^lic  for  a  designated  time  before  the  arrival  of 
trains.  In  some  instances  the  neglect  to  follow  the  statute  con- 
stitutes a  misdemeanor  on  the  part  of  the  officer  or  servant,  and 
in  other  cases  the  statute  denounces  a  penalty  against  the  cor- 
poration.-^ A  statute  imposing  penalties  for  the  failure  of  rail- 
road companies  to  maintain  water  closets  at  passenger  stations 
has  been  sustained  against  the  objection  that  it  amounted  to  a 
deprivation  of  property  without  due  process  of  law.-''  But  it  has 
been  held  that  a  statute  requiring  water  closets  at  stations  does 
not  apply  to  mere  flag  stations  at  which  there  are  no  buildings 
and  no  agent.^" 

=  ■  State   V.   Alabama   &c.    R.    Co.,  Ky.  315,  194  S.  W.  346;  Galveston 

67  Miss.  647,  7  So.  502,  42  Am.  &  &c.    Ry.    Co.    v.    State    (Tex.    Civ. 

Eng.  R.  Cas.  681.     As  to  extent  of  App.),  194  S.  W.  462. 
power  of  railroad  commissions,  see  ^o  State  v.   Baltimore   &c.   R.  Co. 

chapter  on  State  Railroad  Commis-  61  W.  Va.  367,  56  S.  E.  518.  See  also 

sions,  ante.  Commonwealth  v.  Chesapeake  &c. 

28  As  to  what  orders  as  to  facili-  Ry.  Co.,  157  Ky.  140,  162  S.  W. 
ties  a  railroad  commission  may  783.  And  so  as  to  a  statute  requir- 
make,  compare  State  v.  Florida  ing  ticket  offices  and  waiting  rooms 
East  Coast  R.  Co..  67  Fla.  83,  64  So.  to  be  kept  open  at  least  thirty  min- 
443,  with  Erie  R.  Co.  v.  Board  iites  before  the  schedule  time  for 
(N.  J.),  89  Atl.  1001.  the   departure  of  passenger  trains. 

29  Missouri  &c.  R.  Co.  v.  State  Sandifer  v.  Louisville  &c.  R.  Co., 
(Tex.  Civ.  App.),  97  S.  W.  720.  See  28  Ky.  L.  464,  89  S.  W.  528.  Com- 
also  as  to  indictment  and  evidence  pare  Chesapeake  &c.  Ry.  Co.  v. 
under  such  statutes  requiring  con-  L.mliorn,  159  Ky.  325,  167  S.  W. 
venient    water    closets.      Louisville  132. 

&c.   R.   Co.  V.   Commonwealth,   175 


§  854  RAILROADS  248 

§854  (720a).  Indictment  for  failure  to  maintain  accommo- 
dations.— Under  the  Kentucky  statute  requiring  every  railroad 
company  to  provide  a  suitable  waiting  roorti  in  cities  and  towns, 
and  at  such  other  stations  as  the  railroad  commissioners  of  the 
state  may  require,  an  indictment  against  a  railroad  companv  for 
failing  to  provide  a  waiting  room  at  a  certain  village  on  its 
line  was  held  fatally  defective  because  of  its  failure  to  charge 
that  the  railroad  commission  had  ordered  the  company  to  main- 
tain such  a  station.'''^ 

§  855  (721).  Statutory  signals — Stops  at  crossings. — The  leg- 
islatures of  the  different  states  possess  and  freely  exercise  the 
power  to  prescribe  regulations  for  the  moving  and  operation  of 
trains  with  safety  both  to  the  passengers  and  to  the  public.  In 
most  cases  they  require  that  each  locomotive  shall  carry  a  bell 
and  whistle  and  prescri])e  the  signals  which  shall  be  given  upon 
approaching  crossings,  upon  starting  trains,  or  while  moving 
through  populous  neighborhoods.  Most  cities  exercise  the  power 
through  ordinances.^-  These  regulations  are  enforced  sometimes 
by  penalty  against  the  corporation  and  sometimes  by  fine  or 
even  imprisonment  of  the  servant  who  disregards  them.^^   Where 

^1  Commonwealth  v.  Illinois  Cent.  nance  prohibiting  blocking  of  cross- 

R.  Co.,  27  Ky.  L.  763,  86  S.  W.  542.  ing  for  more  than  ten  minutes  held 

•''2  Galena   &c.  R.   Co.  v.  Loomis,  to  make  the  engineer  alone  liable). 

13   111.  548,   56  Am.   Dec.  471;   Ga-  Western  Union   R.   Co.  v.   Fulton, 

lena  &c.  R.  Co.  v.  Appleby,  28  III.  64   111.   271;    People   v.    New    York 

283;  Pittsburgh  &c.  Co.  v.  Brown,  &c.  R.  Co.,  25  Barb.   (N.  Y.)   199; 

67  Tnd.  45,  33  Am.  Rep.  72,\  Com-  Beck    v.    Portland    &c.    R.    Co.,    25 

monwealth  v.  Eastern  R.  Co.,  103  Ore.  32,  34  Pac.  753;  Missouri  &c. 

Mass.  254,  4  Am.  Rep.  555,  Kamin-  R.  Co.  v.  Reynolds  (Tex.),  26  S.  W. 

itsky  V.  Northeastern  R.  Co.,  25  S.  879.      An    ordinance    imposing   im- 

Car.  53.    Also  Louisville  &c.  R.  Co.  prisonment    upon    the    person    in 

v.  Loyd,  185  Ala.  119,  65  So.  153.  charge    of    train    who    crosses    a 

^3  State    V.    Kansas    City    &c.    R.  street,  upon  which  street  cars  run, 

Co.,  54  Ark.  546,  16  S.  W.  567;  St.  without     being     signaled     by     the 

Louis  &c.  R.  Co.  V.  State,  58  Ark.  watchman    required    to    be    at    the 

39,  22  S.  W.  918;  St.  Louis  &c.  R.  crossing  is  held  valid  as  within  the 

Co.  v.  State,  55  Ark.  200,  17  S.  W.  grant  of  powers  of  the  city.     State 

806;   State  v.   Norfolk   So.   R.   Co.,  v.    Cozzens,    42    La.    Ann.    1069,    8 

168  N.  Car.  103,  82  S.  E.  963  (ordi-  So.  268. 


249 


PENAL  OFFENSES 


§856 


the  statute  imposes  a  penalty  for  each  failure  to  give  the  statu- 
tory signals,  the  penalty  may  be  collected  once  for  each  time  a 
crossing  is  passed  without  the  giving  of  the  signals,^*  and  it  has 
been  held  that  the  regulation  applies  whether  the  crossing  be  at 
grade  or  not.'^  While,  ordinarily,  an  action  for  damages  will  lie 
where  injury  results  from  failure  to  observe  these  regulations, 
there  are  instances  in  which  the  only  liability  is  the  penalty.^® 
Statutes  requiring  signals  are  mandatory,  and  there  is  ordinarily 
no  question  for  the  jury  where  the  facts  showing  a  failure  to 
give  the  signals  are  undisputed. ^^  The  enforcement  is  often  by 
indictment.''^  In  many  states  trains  are  required  to  come  to  a 
lull  stop  at  the  crossing  with  other  railroads,  except  where 
safety  appliances  are  used  or  where  watchmen  are  kept  con- 
stantly, and  failure  to  stop  is  punishable,  under  some  of  the 
statutes,  b}'  indictment. ^^ 

§856  (722).  Blackboards  and  bulletins  at  stations. — In  Indi- 
ana and  Ohio  railroad  companies  are  required  to  erect  at  each 
station  having  a  telegraph  office,  a  blackboard,  upon  which  it  is 
the  duty  of  the  agent  to  record  the  time  of  the  arrival  of  trains, 


34  People  V.  New  York  &c.  R. 
Co.,  25  Barb.  (N.  Y.)  199. 

35  Johnson  v.  Southern  Pac.  R. 
Co.,  147  Cal.  624,  82  Pac.  306;  Peo- 
ple V.  New  York  &c.  R.  Co.,  13 
N.  Y.  78.  Contra,  Jenson  v.  Chi- 
cago &c.  R.  Co.,  86  Wis.  589,  57 
N.  W.  359,  22  L.  R.  A.  680.  It  has 
been  held  that  a  statute  requiring 
a  whistle  to  be  blown  at  least 
eighty  rods  from  a  crossing  does 
not  impose  that  duty  when  the 
train  starts  within  that  distance. 
Gulf  &c.  R.  Co.  V.  Hall,  34  Tex. 
Civ.  App.  535,  80  S.  W.  133.  But 
the  better  rule  seems  to  be  that  the 
whistle  must  be  blown  even  in  such 
a  case.  Pittsburgh  &c.  R.  Co.  v. 
Terrell,  177  Ind.  447,  95  N.  E.  1109, 
42  L.  R.  A.  (N.  S.)  367,  and  cases 


there  cited;  also  post.  §  1648. 

36  Chicago  &c.  R.  Co.  v.  McDan- 
iels,  63  111.  122. 

3"  Havens  v.  Erie  R.  Co.,  53  Barb. 
(N.  Y.)  328;  Semel  v.  New  York 
&c.  R.  Co.,  9  Daly  (N.  Y.)  321.  We 
suppose,  however,  that  there  may 
be  cases  where  necessity  will  ex- 
cuse or  justify  the  failure  to  give 
the  prescribed  signals. 

38  Commonwealth  v.  Boston  &c. 
R.  Co.,  133  Mass.  383,  8  Am.  & 
Eng.  R.  Cas.  297,  and  note  citing 
authorities. 

39  Commonwealth  v.  Chesapeake 
&c.  R.  Co.,  16  Ky.  L.  481,  29  S.  W. 
136.  See  also  §  787  as  to  check- 
ing speed  or  stopping  at  highway 
crossings. 


§  857  KAILROADS  250 

and  "if  late,  how  much."  IJuth  statutes  have  I)een  upheld  as 
constitutional,  and  the  language  ui  the  ()hio  statute  has  been 
construed  to  impose  but  one  penalty  where  no  blackboard  was 
erected  at  all,  on  the  t^round  that  the  failure  to  erect  the  board 
was  a  necessary  part  of  each  \  iidation.""'  The  more  explicit  Ian- 
gfuage  of  the  Indiana  statute  has  been  held  to  authorize  a  penalty 
for  each  train  not  recorded  after  a  reasonable  time  being  allowed 
for  the  erection  of  the  blackboard,  and  a  large  accumulation  of 
penalties  has  several  times  been  allowed,'^  but  it  is  held  not  to 
apply  to  a  company  operating  a  line,  the  regular  time  of  passage 
from  one  end  to  the  other  of  wdiich  is  less  thaji  the  time  required 
to  elapse  between  the  posting  of  the  bulletin  and  the  arri\al  of 
the  train,  for  the  reason  that  it  would  be  useless,  impracticable, 
and  not  within  the  implication  of  the  statute.^-  It  has  been  held 
that  the  owner  of  a  railway  not  operating  it  is  not  within  the 
letter  or  spirit  of  the  act,  and  that  a  railway  company  created  by 
the  consolidation  of  two  companies  is  not  liable  for  a  failure  of 
the  lessee  of  one  of  the  extinguished  companies  to  give  the  black- 
board notices.*^  It  is  also  held  a  valid  exercise  of  the  police 
power  to  require  a  railroad  company  to  annually  fix  its  passenger 
and  freight  rates  and  post  a  schedule  in  each  of  its  depots  or 
stations,  and  such  a  requirement  is  not  a  regulation  of  interstate 
commerce.'** 

§857   (722a).     Failure    to    furnish    cars. — Under    the    rule    of 
strict  construction  of  penal  statutes  the  Texas  statute  imposing 

estate  V.  Cleveland   &c.  R.  Co..  165  Ind.  613.  75  N.  E.  272.     It  has 

8  Ohio   C.    C.    R.   604.      It   maj-  be  been  licld  that  the  .statute  does  not 

doubtful  whetlier  these  statutes  re-  apply    to    night    trains    at    stations 

ferred   to  in  the  text  are  constitu-  where  there  is  no  night  telegraph 

tional,  but  they  have  been  upheld.  operator.     Tcrre  Haute  &c.  R.  Co. 

Pennsylvania  Co.  v.  State,  142  Ind.  v.  State,  142  Ind.  428,  41  N.  E.  952. 

428,  41  N.  E.  937.  42  State  v.   Kentucky   &c.    Bridge 

41  State  v.  Indiana  &c.  R.  Co..  133  Co.,  136  Ind.  195,  35  N.  E.  991. 

Ind.  69,  32  N.  E.  817,   18  L.  R.  A.  43  state  v.  Pittsburgh  &c.  R.  Co.. 

502;  State  v.  Penn.  R.  Co..  133  Ind.  135  Ind.  578,  35  N.  E.  700. 

700,  32  N.  E.  822;  Pennsylvania  Co.  44  Chicago   &c.   R.   Co.   v.    Fuller. 

v.  State,  142  Ind.  428,  41  N.  E.  937:  17  Wall.  (U.  S.)  560,  21  L.  ed.  710. 

Southern     R.    Co.    v.     State     (Ind.  athrming  Fuller  v.  Chicago  &c.  R. 

App.).  72  N.  E.  174;  Same  v.  Same,  Co.,  31   Iowa  187. 


251 


PENAL  OFFENSES 


858 


a  penalty  on  a  railroad  company  for  failure  to  furnish  cars  on 
demand  has  been  held  not  to  impose  the  duty  on  a  railroad  com- 
pany to  furnish  cars  for  use  beyond  its  own  lines.*''  The  statute 
of  this  state  requires  the  application  for  cars  to  state  the  time 
when  they  are  desired.  An  application  for  a  car  "as  soon  as  pos- 
sible" is  not  sufficient  to  bring  the  applicant  within  the  statute.** 
There  is  authority  that  an  unprecedented  demand  on  a  railroad 
company  for  cars  will  excuse  the  company  for  failing  to  provide 
the  cars  demanded  \\here  the  company  has  sufficient  equipment 
for  ordinary  demands  upon  it.*^ 

§858  (723).  Unlawful  speed. — The  speed  of  trains  moving 
through  cities  and  towns  where  not  regulated  ]:)y  statute  is 
usually  governed  by  ordinances  enacted  within  the  local  exercise 
of  the  police  power.  The  statutory  limitations  upon  the  rate 
of  speed  of  trains  at  highway  crossing  are  held  to  be  limitations 
upon  the  company's  franchises,  and  a  violation  may  be  prose- 
cuted by  indictment  or  otherwise.*®  Where  the  penalty  is 
awarded  to  "the  person  aggrieved,"  it  has  been  held  to  be  col- 
lectible at  the  suit  of  one  who  suffered  injury  resulting  from  the 
frightening  of  his  horse  because  of  the  illegal  rate  of  speed, 
although  no  actual  collision  occurred.*^ 


*5  Houston  &c.  R.  Co.  v.  Buchan- 
an, 42  Tex.  Civ.  App.  620,  94  S.  W. 
199. 

46  Texas  &c.  R.  Co.  v.  Hughes. 
99  Tex.  533.  91  S.  W.  567. 

*"  St.  Louis  &c.  R.  Co.  v.  Leder 
Bros..  79  Ark.  59,  95  S.  W.  170.  But 
see  Patterson  v.  Missouri  Pac.  Coal 
Co..  11  Kans.  236,  94  Pac.  138,  15  L. 
R.  A.  (X.  S.)  IZZ.  The  Texas  stat- 
ute has  been  upheld  as  to  intrastate 
commerce.  Allen  v.  Texas  &c.  R. 
Co.,  100  Tex.  525,  101  S.  W.  792, 
and  held  invalid  as  to  interstate 
commerce.  Houston  &c.  R.  Co.  v. 
Mayes,  201  U.  S.  321,  26  Sup.  Ct. 
491.  50  L.  ed.  772. 

48  Chicago  &c.  R.  Co.  v.  Haggcr- 


ty,  67  111.  113:  Whitson  v.  Frank- 
lin, 34  Ind.  393;  Mobile  &c.  R.  Co. 
v.  State,  51  Miss,  137;  Merz  v.  Mis- 
souri Pac.  R.  Co.,  88  Mo.  672;  Clark 
v.  Boston  &c.  R.  Co.,  64  N.  H.  323. 
31  Am.  &  Eng.  R.  Cas,  548;  People 
v.  Boston  &c.  R.  Co.,  70  N.  Y.  569; 
Buffalo  &c.  R.  Co.  v.  Buffalo.  5 
Hill  (N.  Y.)  209;  Pennsylvania  &c. 
R.  Co.  v.  Lewis,  79  Pa.  St.  33; 
Horn  V.  Chicago  &c.  R.  Co.,  38 
Wis.  463;  Haas  v.  Chicago  &c.  R. 
Co.,  41  Wis.  44. 

4f  Chicago  &c.  R.  Co.  v.  People, 
120  111.  del.  12  N.  E.  207;  Grand 
Trunk  R.  Co.  v.  Rosenberger,  9 
Can.  S.  C.  311.  19  Am.  &  Eng.  R. 
Cas.  8. 


■<  859  RAILROADS  252 

§859  (723a).  Penalties  for  detention  of  baggage. — An  Iowa 
statute  which  provides,  "that  for  ever}-  day's  detention  to  trav- 
elers in  consequence  of  damac^e  as  before  described,  and  neces- 
sary delay  in  suit  for  s;ime.  said  companies,  owners,  or  agents 
shall  pay  to  each  person  so  delayed  a  sum  of  not  less  than  three 
dollars,  which  amount  shall  be  added  to  the  judgment  for  dam- 
ages to  property,  should  the  action  be  sustained,"  was  held  to 
apply  to  the  delay  caused  by  damage  or  injury  to  the  baggage 
only,  and  not  to  that  consequent  upon  a  detention  of  the  same, 
or  a  failure  to  deliver  it."'"  The  statute  only  covers  articles  that 
are  strictly  baggage;  it  does  not  apply,  for  example,  to  sample 
cases  of  merchandise  checked  as  baggage.^^ 

§  860  (724).  Other  penal  regulations. — There  are  many  penal 
regulations  applying  to  the  operation  of  railroads  which  are  not 
easily  classified.  In  many  states  railroad  commissioners  have 
jurisdiction  to  require  gates,  flagmen,  or  electric  signals  at  rail- 
road crossings.^-  In  other  states  this  power  is  to  a  limited  extent 
conferred  upon  the  county  commissioners,  and  may  be  exercised 
by  the  towns  and  cities  through  ordinances,  and  in  most  of  the 
states  the  municipal  corporations  are  granted  the  power  to  make 
reasonable  regulations.  Where  a  crossing  was  over  a  switch 
track  only,  and  such  track  was  not  in  use  after  six  o'clock  in  the 
evening  nor  on  Sundays  or  legal  holidays,  an  ordinance  requir- 
ing the  company  to  maintain  a  flagman  at  such  crossing  "be- 
tween the  hours  of  7  o'clock  A.  M.  and  9  o'clock  P.  M.  of  each 
and  every  day  of  the  year"  was  held  unreasonable  and  void.'^^ 
Railroads  are  often  required  to  provide  large  signs  at  road  cross- 
ings to  warn  travelers  of  the  proximity  of  the  track  and  its  dan- 
ger, and  to  maintain  and  keep  in  repair  proper  crossings.  In 
Indiana  and  Ohio  cities  and  towns  have  power  to  require  rail- 
so  Anderson  V.  Toledo  &c.  R.  Richards  v.  Southern  R.  Co..  97 
Co..  32  Iowa  86.  S.  Car.  11,  81  S.  E.  314;  People  v. 

51  McEIroy  v.  Iowa  Cent.  R.  Co.  Long  Island  R.  Co.,  58  Hun  412. 
133  Iowa  544,  110  N.  W.  915.  34  N.  Y.  S.  715. 

^'-  Massachusetts,  Vermont,  Con-  53  Southern   Ind.   R.   Co.  v.   Bed- 

necticut,     Ohio,     Michigan,     South      ford,  165  Ind.  272,  75  N.  E.  268. 
Carolina,    and     other     states.       See 


253 


FEXAL  OFFENSES 


§860 


road  intersection  with  streets  to  be  lighted  at  night.'"'*  Different 
states  make  it  a  penal  offense  to  place  a  freight  car  in  the  rear 
of  a  passenger  coach  in  mixed  trains.  And  most  states  have  reg- 
ulations requiring  that  cars  shall  be  rendered  comfortable  and 
safe,  that  tools  shall  be  carried  to  be  available  in  case  of  accident, 
that  certain  combustibles  1)C  not  carried,  and  in  several  states 
automatic  couplers  are  required  on  all  freight  and  passenger 
cars,  air  brakes  on  certain  cars,  and  electric  headlights  and  auto- 
matic bell  ringers  on  engines.'"'  Penalties  are  exacted  of  rail- 
roads in  some  jurisdictions  where  employes  are  retained  who 
are  color  blind,  or  in  the  habit  of  becoming  intoxicated,  and  in  a 
number  of  states  the  law  designates  the  number  of  brakemen  to 
accompany  a  train,  and  prescribes  the  use  of  air  brakes  or  others 


5*  See  Cincinnati  &c.  R.  Co.  v. 
Sullivan,  32  Ohio  St.  152.  Several 
ordinances  under  the  Indiana  stat- 
ute have  been  held  too  uncertain 
and  indefinite  in  two  cases.  Shel- 
byville  v.  Cleveland  &c.  R.  Co.,  146 
Ind.  66,  44  N.  E.  929;  Cleveland 
&c.  R.  Co.  v.  Connersville,  147  Ind. 
277,  46  X.  E.  579,  2,7  L.  R.  A.  175, 
62  Am.  St.  418.  But  these  decisions 
were  modified  and  an  ordinance 
was  upheld  in  the  recent  case  of 
Chicago  &c.  R.  Co.  v.  Crawfords- 
ville,  164  Ind.  70,  72  N.  E.  1025. 
See  also  Chicago  &c.  R.  Co.  v. 
Salem.  170  Ind.  153,  82  N.  E.  913, 
19  L.  R.  A.  (N.  S.)  658;  St.  Mary's 
v.  Lake  Erie  &c.  R.  Co.,  60  Ohio 
St.  136,  53  N.  E.  795;  Cincinnati 
&c.  R.  Co.  v.  Bowling  Green,  57 
Ohio  St.  ZZ6,  49  N.  E.  121.  But 
compare  Chicago  v.  Penna.  Co.,  252 
III.  185,  96  N.  E.  833,  Ann.  Cas. 
1912D,  400. 

S5  As  elsewhere  shown,  the  fed- 
eral safety  appliance  act  requiring 
automatic      couplers     and     certain 


other  equipment  has  .  superseded 
state  laws  on  the  subject  in  inter- 
state commerce.  Upon  this  gen- 
eral subject  and  for  construction  of 
such  acts,  see  Chicago  &c.  R.  Co. 
V.  United  States,  211  Fed.  12; 
United  States  v.  Trinity  &c. .  Ry. 
Co.,  211  Fed.  448;  United  States  v. 
Pere  Marquette  R.  Co..  211  Fed. 
220;  Pennell  v.  Philadelphia  &c.  R. 
Co.,  231  U.  S.  675,  34  Sup.  Ct.  220. 
58  L.  ed.  430;  United  States  v.  Erie 
R.  Co.,  212  Fed,  853;  Atlantic  Coast 
Line  R.  Co.  v.  Georgia,  234  U.  S. 
285,  34  Sup.  Ct.  829,  58  L.  ed.  1312: 
Pittsburgh  &C..R.  Co.  v.  State,  178 
Ind.  498,  99  N.  E.  801;  Cleveland 
&c.  R,  Co,  V.  Railroad  Com,  (Ind.), 
162  N.  E.  829;  Southern  R.  Co.  v. 
Railroad  Com.,  179  Ind.  23.  100 
N.  E.  852;  Railroad  Com.  v.  Grand 
Trunk  &c.  R.  Co.,  179  Ind.  253,  100 
X.  E.  852.  As  to  heating  cars,  see 
People  V.  Clark,  14  N.  Y,  S.  642; 
People  V.  N.  Y,  &c.  R.  Co.,  55  Hun 
409,  8  N.  Y.  S.  672. 


§  860  RAILROADS  254 

equally  as  orood."'*'  lUit  a  statute  makins^-  it  a  misdemeanor  to 
act  as  condtictor  without  having  served  two  years  as  a  freis^ht 
conductor  or  brakeman  has  been  held  unconstitutional.'^''  Rail- 
road companies  are  generally  required  to  fence  their  right  of  way, 
and  to  maintain  cattle-guards  at  public  crossings.  Failure  to  do 
so  is  sometimes  punished  by  specific  penalties,  but  in  many  cases 
by  imposing  an  absolute  liability  for  stock  killed  by  reason  of  the 
neglect.  Sometimes  the  kind  of  switch  to  be  used  is  prescribed 
by  law,  and  the  company  is  required  to  construct  switches, 
Irogs,  guard  raHs,  and  the  like,  in  such  a  manner  as  to  insure 
ihe  minimum  danger  to  employes  or  others  walking  over  them. 
In  many  states  the  laws  regulate  the  stopping  of  trains  at  sta- 
tions, designating  the  length  of  .time  a  train  must  stop  and  the 
frequency  of  stopping  to  be  ol)served  at  stations  of  certain  de- 
scriptions,"'^ It  is  sometimes  made  a  penal  offense  to  fail  to  an- 
nounce the  stopping  place  previous  to  arrival  at  each  station. ^° 
In  a  numl)er  of  states  it  is  provided  that  upon  demand  of  the 
federal  authorities  any  or  all  trains  must  carry  mail  or  transport 
troops  in  time  of  war.  and  a  heavy  penalty  is  denounced  for 
refusal.  There  are  many  other  penal  regulations  in  the  different 
states,  \\hich  we  will  not  enumerate  here,  but  which  will  be 
treated  under  the  subject  of  carriers,  and  the  discussion  of  the 
operation  of  the  road.*^° 

^^  Rep;nlati()n    as    to    color    blind-  App.  545,  30  Am.  Rop.  166;  Galvcs- 

ness   held  valid   and   violation   pun-  ton    &c.    R.    Co.    v.    La    Gierse.    51 

ishablc    by    indictment.      Nashville  Tex.    189;    Davis    r.    State,    6   Tex. 

&c.   R.   Co.   V.   State,  83   Ala.  71,  3  App.  166.     Compare  State  v.  Noyes. 

So.    702,    affirmed    128   U.    S.   96,   9  47   Maine    189. 

Sup.    Ct.    28,    38    Am.    &    Eng.    R.  ■"'"  Parks  v.  Nashville  &c.  R.  Co., 

Cas.  1.    See  also  Baldwin  v.  Kouns,  13    Lea    (Tenn.)     t,    49    Am.    Rep. 

81   Ala.  272,  2  So.   638,  31   Am.   &  655,  18  Am.  &  Eng.  R.  Cas.  404. 

Eng.   R.   Cas.  347.     Legislative  re-  *"'  See  also  Rohrig  v.  Chicago  &c. 

quirements   as   to   qualifications    of  R.    Co.,    130   Towa  380,    106   N.   W. 

employes  are  valid.     Smith  v.  Ala-  935    (penalty  for  failure  to  redeem 

bama,  124  U.  S.  465,  8  Sup.  Ct.  560,  tickets);    Clark    v.    .American    Exp. 

31    L.   ed.   508,  33  Am.    &   Eng.   R.  Co.,   130  Iowa  254,  106  N.  W.  642; 

Cas.  425.  St.    Louis    &c.    R.    Co.   v.    Clay.    77 

"Smith  V.  Texas,  233  U.  S.  630,  Ark.    357,    92    S.    W.    531;    Geer    v. 

34  Sup.  Ct.  681,  58  L.  ed.  1129.  Michigan   Cent.   R.   Co.,   142  Mich. 

58  See   Davidson  v.   State,  4  Tex.  511,  106  N.  W.  72;  Hawes  v.  South- 


255 


PENAL  OFFENSES 


§861 


§  861.  Full  crew  and  hours  of  service  laws. — Among  the  acts 
referred  to  in  the  last  preceding  section  are  the  full  crew  and 
hours  of  service  statutes.  Such  laws  have  been  upheld  as  a 
proper  exercise  of  the  police  power  f^  but  state  liours  of  service 
laws  have  been  superseded,  in  some  instances,  by  the  Act  of  Con- 
gress of  ]\Iarch  4,  1907,  and  held  invalid  or  ineffective  as  to  inter- 
state employes. *"'- 

§  862.  Blacklisting — Clearance  cards. — In  some  jurisdictions 
Idacklisting  statutes,  or  statutes  of  that  nature,  have  been  en- 
acted, but  many  of  them  have  been  held  unconstitutional  in  re- 
quiring the  employer  to  give  a  discharged  employe  a  clearance 
card  or  written  statement  of  the  reasons  for  his  discharge.®^ 
Others,  however,  have  been  upheld  where  the}-  merely  prohibit 
improper  blacklisting  or  the  like.*'' 


ern  R.  Co.,  73  S.  Car.  274.  53  S.  E. 
285;  San  Antonio  &c.  R.  Co.  v. 
Burnes,  39  Tex.  Civ.  App.  32,  89  S. 
W.  21.  Failure  to  run  at  least  one 
passenger  train  a  day,  except  Sun- 
day, with  certain  provisos  or  ex- 
ceptions, is  made  a  penal  offense 
by  a  Kentucky  statute.  Louisville 
&c.  R.  Co.  V.  Commonwealth,  175 
Ky.  372,  194  S.  W.  315. 

^1  Full  crew  acts:  Chicago  &c.  R. 
Co.  V.  Arkansas,  219  U.  S.  453,  31 
Sup.  Ct.  275,  55  L.  ed.  290;  Pitts- 
burgh &c.  R.  Co.  V.  State,  172  Ind. 
147.  87  X.  E.  1034;  Penna.  R.  Co. 
V.  Ewing,  241  Pa.  St.  581,  88  Atl. 
775,  49  L.  R.  A.  (N.  S.)  977.  Hours 
of  service  laws  generally;  Ex  parte 
Wong  Wing,  167  Cal.  109,  138  Pac. 
695,  51  L.  R.  A.  (X.  S.)  361,  and 
cases  cited  in  note;  State  v.  Barba, 
132  La.  Ann.  768,  61  So.  785,  Ann. 
Cas.  1914D,  1281  and  cases  cited 
in  note. 

6-  Erie  R.  Co.  v.  Xew  York,  233 
U.  S.  671,  34  Sup.  Ct.  756,  58  L.  ed. 
1149,    52    L.    R.    A.    (N.    S.)    266; 


Xorthern  Pac.  R.  Co.  v.  Washing- 
ton, 222  U.  S.  370,  32  Sup.  Ct.  160, 
56  L.  ed.  237;  Louisville  &c.  R.  Co. 
V.  Hughes,  201  Fed.  727.  As  to 
when  this  act  applies  and  as  to  its 
construction  and  when  there  is 
immunity  from  delaj'  where  it  is 
not  complied  with,  and  the  like, 
see  United  States  v.  Chicago  &c. 
R.  Co.,  218  Fed.  701;  United  States 
V.  Delaware  &c.  R.  Co.,  218  Fed. 
608;  United  States  v.  Kansas  City 
&c.  Ry.,  202  Fed.  828. 

63  Wallace  v.  Georgia  &c.  R.  Co., 
94  Ga.  732.  22  S.  E.  579;  Atchison 
&c.  Ry.  Co.  V.  Brown,  80  Kans. 
314,  102  Pac.  459,  23  L.  R.  A.  (X. 
S.)  247,  133  Am.  St.  213;  St.  Louis 
&c.  R.  Co.  V.  Griffin,  106  Tex.  477, 
171  S.  W^  703. 

6*  State  Minn,  ex  rel.  Scheffer  v. 
Justus,  85  Minn.  279,  88  X.  W.  759, 
56  L.  R.  A.  757,  89  Am.  St.  550. 
See  upon  the  general  subject,  Cleve- 
land &c.  R.  Co.  V.  Jenkins,  174  III. 
398,  51  X.  E.  811,  62  L.  R.  A.  922, 
and     notes;     Wabash     R.     Co.     v. 


§  863  RAILROADS  256 

§863  (725).  Violations  of  federal  regulations. — Under  the 
constitutional  power  to  regulate  commerce  Congress  has  enacted 
federal  statutes,  which,  for  the  most  part,  relate  to  the  duties  of 
the  railroad  as  a  common  carrier,  and  sometimes  extend  to  legis- 
lation for  the  safety  of  passengers,  and  the  expeditious  and  safe 
carriage  of  live  stock.  It  has  been  held  that  the  power  to  regu- 
late commerce  includes  that  of  punishing  all  offenses  against 
commerce,  such  as  larceny,  where  it  does  not  thereby  interfere 
with  the  internal  police  regulations  of  a  state.*'^  These  statutes 
being  penal  are  strictly  construed,  yet  the  construction  must  be 
lair  and  reasonable  so  as  to  give  effect  to  the  legislative  will. 
Thus  it  was  held  that  a  statute  forbidding  the  shipment  of  nitro- 
glycerine on  passenger  trains  extended  to  a  shipment  of  dyna- 
mite and  the  statutory  penalty  was  exacted.^'^ 

§864  (726).  Penalty  for  confinement  of  live  stock. — One  of 
comparatively  recent  acts  of  Congress  affecting  railroad  traffic 
is  that  looking  to  the  humane  treatment  of  live  stock,  and  re- 
quiring that  animals  shall  not  be  confined  in  shipment  more  than 
twenty-eight  hours  continuously  without  unloading  for  food, 
rest  and  water,  and  providing  a  penalty  for  its  violation  to  be 
recovered  in  a  civil  action  in  the  name  of  the  United  States.^^ 
The  statute  requires  that  the  time  of  confinement,  immediately 
prior  to  delivery  to  the  particular  carrier,  shall  be  included  in 
estimating  the  period,  and  it  is  held  that  the  carrier  who  has 

Young,  162  Ind.  102,  69  N.  E.  1003,  «7  5    Thonip.    Corp.    (2d    ed.),    § 

4  L.  R.  A.  (N.  S.)   1091  and  elabo-  6435.     Upheld   as   constitutional   in 

rate   note;   3   Elliott   Cont.,  §  2699.  United    States    v.    Boston    &c.    Co., 

65  United  States  v.  Coombs,  12  15  Fed.  209.  But  see  act  of  June, 
Pet.  (U.  S.)  72,  9  L.  ed.  1004;  Ken-  1906.  extending  the  time,  under 
tucky  &c.  Bridge  Co.  v.  Louisville  certain  circumstances,  to  thirty-six 
&c.  R.  Co.,  7>1  Fed.  567,  2  L.  R.  A.  hours.  See  generally  Baltimore  &c. 
289;  and  see  penal  clauses  of  vari-  R.  Co.  v.  United  States.  220  U.  S. 
ous  statutes.  94,  31   Sup.   Ct.  368,  55  L.  ed.  384. 

66  United  States  v.  Saul,  58  Fed.  Sec  also  as  to  statutes  concerning 
763;  Rev.  St.  U.  S.,  §  5353,  and  fol-  the  transportation  of  infected  ani- 
lowing.  Other  and  more  recent  mals,  note  in  43  T-.  R.  A.  (N.  S.) 
acts    of    congress    relating  to    rail-  1068. 

roads  will  be  considered  in  a  sub- 
sequent volume. 


257  PENAL   OFFENSES  §  865 

possession  at  the  time  the  period  expires  is  alone  liable,  although 
the  first  currier  may  have  contracted  for  through  carriage,^^  and 
the  original  statute  has  been  held  to  apply  only  to  shipments 
from  one  state  to  another.^^  The  liability  of  the  company  on  ac- 
count of  omissiofi  of  the  duty  imposed  by  this  statute  has  been 
held  to  be  avoided  by  a  special  contract  by  which  the  shipper 
agrees  to  feed  and  water  the  stock  himself,  but  this  doctrine  has 
been  questioned,  although  followed  in  many  states  which  have 
their  own  regulations/"  Non-compliance  with  the  statute  is  not 
excused  by  an  accident  resulting  from  negligence  of  the  com- 
pany J^  In  addition  to  the  penalty,  the  carrier  is  liable  to  the 
owner  in  actual  damages,  but  it  has  been  held  that  the  owner 
must  affirmatively  plead  that  the  failure  to  feed,  water  and  pro- 
vide rest  did  not  fall  within  the  exceptions  named  in  the  statute.'^- 
The  courts  have  refused  to  construe  the  statute  so  as  to  make  the 
unlawful  confinement  of  each  animal  a  separate  offense  and  thus 
multiply  the  penalty.''^ 

§865  (726a).  Penalty  for  confinenient  of  live  stock — State 
legislation. — Under  a  Massachusetts  statute  limiting  the  time 
of  confinement  of  animals  during  transportation,  it  has  been 
held  that  it  is  the  duty  of  the  company,  in  a  case  where  a  part 

68  United  States  v.  Louisville  &c.  ^o  Missouri  Pac.  R.  Co.  v.  Texas 
R.  Co.,  18  Fed.  480;  Cincinnati  &c.       &c.  R.  Co.,  41   Fed.  913. 

R.   Co.   V.   Gregg,  25   Ky.    L.  2329,  "i  Newport    &c.     Co.    v.    United 

80  S.  W.  512.  States,  61  Fed.  488. 

69  United  States  v.  East  Tennes-  72  Hale  v.  Mo.  &c.  Co.,  36  Nebr. 
see  &c.  R.  Co.,  13  Fed.  642.  See  266,  54  N.  W.  517.  But  in  an  ac- 
also  Galveston  &c.  R.  Co.  v.  Jones  tion  by  the  United  States  for  the 
(Tex.  Civ.  App.),  123  S.  W.  111.  penalty  it  is  held  that  the  existence 
But  the  present  statute  is  held  ap-  of  accidental  or  unavoidable  cause 
plicable  even  though  the  shipment  within  the  proviso  or  exception  is 
originated  in  Canada,  the  violation  matter  of  defense.  Grand  Trunk 
occurring  while  the  stock  was  be-  R.  Co.  v.  United  States,  229  Fed. 
ing  carried  through  one  state  and  116. 

into  another.     Grand  Trunk  R.  Co.  "  United  States  v.  Boston  &c.  R. 

V.  United  States,  229  Fed.  116  (also  Co.,    15    Fed.    209.      But    compare 

holding  that  intentionally  failing  to  United  States  v.  Oregon  Short  Line 

obey  the  statute  is  a  violation  even  R.  Co.,  218  Fed.  868. 
though  there  is  no  evil  intent). 


§  865  RAILROADS  258 

I'f  the  statutory  period  of  coiilinenicnt  was  spent  on  a  connect- 
ing road  outside  the  Commonwealth,  to  refuse  the  cars,  unless 
they  could  be  unloaded  lawfully  within  the  time  fixed  by  the 
statute  limiting  the  period  of  continuous  confinement/*  The 
failure  of  a  railroad  company  to  furnish  the  necessary  facilities 
for  unloading,  feeding  and  watering  need  not  be  wanton  to 
render  the  company  liable  under  the  South  Carolina  statute. ^^ 
And  the  statute  of  that  state  expressly  provides  that  the  time 
the  animals  have  been  confined  on  connecting  roads  shall  be 
included  in  estimating  the  time  of  confinement."^  The  Texas 
statute  makes  it  the  duty  of  the  carrier  to  feed  and  water  not 
oftener  than  an  ordinary  prudent  person  w^ould  feed  and  water 
his  own  stock  under  the  same  circumstances,  and  allows  this 
duty  to  be  shifted  to  the  shoulders  of  the  shipper  by  contract, 
notwithstanding  a  provision  in  the  laws  of  that  state  denying 
the  common  carrier  the  right  to  limit  his  common-law  liability.''^ 
And  it  is  not  regarded  as  necessary  to  the  validity  of  such  con- 
tract that  a  reduction  of  rates  should  have  been  granted."* 
Under  this  statute  it  is  the  duty  of  the  carrier  undertaking  to 
transport  cattle  in  cars  which  are  not  properly  constructed  for 
feeding  and  watering  stock,  to  furnish  places  where  the  stock 
may  be  unloaded,  w^atered  and  fed  without  injury  in  all  kinds 
of  Aveather.'^"  A  shipper  who  tenders  his  cattle  to  the  carrier 
in  a  starved  and  famished  condition  for  a  haul  of  a  few  hours, 
cannot  compel  the  carrier  to  feed  them  or  incur  the  ]:)enalty 
provided  by  the  Texas  statute  for  failure  to  do  so.*° 

"4  Heiidrick  v.  Boston  &c.  R.  Co.,  R.   Co.   v.    Broad-Davis    Cattle    Co. 

170  ^lass.  44,  48  N.  E.  835.  (Tc.x.  Civ.  App.),  140  S.  W.  514. 

■■^  Comer  v.  Columbia  &c.  R.  Co.,  ^"  Texas   &c.   R.   Co.   v.   Stribling 

52  S.  Car.  36,  29  S.  E.  62,7.  (Tex.    Civ.    App.),    34   S.    W.    1002. 

'■s  Comer  v.  Columbia  &c.  R.  Co.,  For   other    cases   under   the   Texas 

52  S.  Car.  36,  29  S.  E.  637.  statute,  see  Gulf  &c.  R.  Co.  v.  Gray, 

""Texas    &c.     R.     Co.    v.     Davis  87  Tex.  312;  Galveston  &c.  R.  Co. 

(Tex.  Civ.  App.),  40  S.  W.  167.  v.  Thompson   (Tex.  Civ.  App.),  23 

78  Texas  &c.  R.  Co.  v.  PetcM->.  .31  .S.  \V.  930;  San  Antonio  &c.  R.  Co. 
Tex.  Civ.  App.  6,  71  S.  W.  70.  v.    Chittnie    (Tex.    Civ.    App.),    135 

79  International  &c.  R.  Co.  V.  Rae,  S.  W.  747:  Trinity  c"l'c.  R.  Co.  v. 
82  Tex.  614,  18  S.  W.  672,  27  Am.  Crawford  (Tex.  Civ.  App.),  146 
St.  926.     But  see  San   Antnni..  &c.  S.  W.  329. 


259  PENAL  OFFENSES  §  866 

§866  (727).  Offenses  against  railroads — Obstructing  mails 
and  interfering  with  interstate  commerce. — Obstructing  the 
United  States  mails/^  or  unlawfully  conspiring-  and  interfering 
with  the  passage  of  trains  engaged  in  interstate  commerce.''-  is 
in(lictal)le  as  a  crime  under  the  United  States  statutes.  This 
has  been  announced  as  the  law,  not  only  in  the  cases  to  which 
we  have  just  referred,  Init  also  in  many  other  cases,  elsewhere 
referred  to,  growing  out  of  railroad  strikes.  In  one  of  them, 
boys  only  twcKc  years  old.  \vho  obstructed  a  mail  car  during 
a  strike,  were  held  liable  to  indictment  and  pimishment  for 
obstrttcting  the  mails. ^^ 

§867  (727a).  English  statutory  penalties  for  riding  without 
paying  fare. — In  England  it  is  provided  by  statute.*'*  that  "if 
any  person  travel,  or  attempt  to  travel,  in  any  carriage  of  the 
company,  or  of  any  other  company  or  party  using  the  railway, 
without  having  previously  paid  his  fare,  and  with  intent  to 
avoid  payment  thereof;  or  if  any  person,  having  paid  his  fare 
for  a  certain  distance,  knowingly  and  wilfully  proceed  in  any 
such  carriage  beyond  such  distance  without  previously  paying 
the  additional  fare  for  the  additional  distance,  and  with  intent 
to  avoid  payment  thereof;  or  if  any  person  knowingly  and  wil- 
fully refuse  or  neglect,  on  arriving  at  the  point  to  which  he  has 
paid  his  fare,  to  quit  such  carriage,  every  such  person  shall,  for 
every  such  offense,  forfeit  to  the  company  a  sum  not  exceeding 
forty  shillings."  By  the  same  statute  it  is  provided  :^^  "For 
better  enforcing  the  observance  of  all  or  any  of  such  regula- 
tions, it  shall  be  lawful  for  the  company,  subject,  etc.,  to  make 
by-laws ;  *  *  *  provided  that  such  by-laws  be  not  repug- 
nant to  the  laws  of  that  part  of  the  United  Kingdom  where  the 

^1  Charge   to   Grand  Jury,   In   re.  Co.,  62  Fed.  803;  United  States  v. 

62     Fed.     828;     United     States     v.  Debs,   64   Fed.   724;   United    States 

Thomas.  55  Fed.  380;  United  States  v.  Elh'ott,  62  Fed.  801. 

V.    Clark,    Fed.    Cas.   14805;    United  s^  United    States    v.    Thomas,    55 

States    V.    Kirby,   7   Wall.    (U.    S.)  Fed.  380. 

482,  19  L.  ed.  278;  United  States  v.  ^*  Companies  Clauses   Consolida- 

Kane,  9  Sawy.  (U.  S.  C.  C.)  614.  tion  Act,  8  Vict.,  c.  20,  §  103. 

82  Grand  Jury,  In  re,  62  Fed.  834,  ss  Ibid.  §  109. 
840;   Thomas   v.   Cincinnati   &c.   R. 


§  867  RAILROADS  260 

same  are  to  have  effect,  or  to  the  provisions  of  this  or  the  special 
act:  *  *  *  and  any  person  offendin.o-  against  any  such  by- 
law shall  forfeit  for  every  such  ofifense  any  sum  not  exceeding 
five  pounds,  to  be  imposed  by  the  company  in  such  by-laws  as 
n  penalty  for  any  such  offense."  *  *  *  Under  §  10v3  of  the 
foregoing  provisions  it  is  held  that  fraudulent  int?enti()n  is  the 
gist  of  the  offense  of  traveling  without  having  paid  the  fare  i®*^ 
and  the  fact  that  a  person  rode  beyond  the  station  for  which 
he  had  purchased  a  tickn't,  l)ut.  on  getting  out  of  the  train,  ten- 
dered the  full  local  fare  charged  In'  the  company  for  this  extra 
distance,  after  delivering  up  his  ticket,  was  no  evidence  of  an 
intention  to  defraud  the  company.'*'  L'nder  §  103.  by-laws  were 
frequently  made  requiring  a  passenger  not  i)r()ducing  or  deliver- 
ing up  his  ticket,  to  pay  his  fare  from  the  i)lace  from  which  the 
train  originally  started,  or  in  default  thereof  forfeit  a  sum  not 
exceeding  forty  shillings.  In  one  case,^^  a  ])y-law  of  this  de- 
scription, made  under  the  ])rovisions  of  an  act  incorporating 
the  railway  company,  similar  in  effect  to  the  provisions  above 
set  out  from  the  Companies  Clauses  Consolidated  Act,  was  held 
not  to  impose  a  penalty,  and  did  not,  therefore,  justify  the  arrest 
and  imprisonment  of  a  passenger  committing  a  breach  of  it,  in 
accordance  with  other  provisions  for  the  enforcement  of  penal- 
ties in  the  act  incorporating  the  company. ^^  But  the  contrary 
was  intimated  in  another  case.^°  In  still  another  case,''^  the 
express  ground  of  the  decision  of  the  Court  of  Appeal  was  that 
such  a  by-law  did  impose  a  penalty,  recoverable  only  before 
justices,  according  to  the  provisions  of  the  act,^^  and  not  as  a 
debt  in  a  court  of  civil  jurisdiction. 

8''  Dearden  v.  Townsend,  L.  R.  1  ^^  Chilton  v.  London  &c.  R.  Co., 

Q.  B.  10;  Bentham  v.  Hoyle,  L.  R.  16  Mee.  &  W.  212. 

3  Q.  B.  Div.  289;   London   &c.   R.  ^^  See   also    Barr   v.    Midland    R. 

Co.  V.  Watson,  L.  R.  3  C.  P.  Div.  Co.,  Irish  Rep.  1  C.  L.  130. 

429,    4    C.    P.    Div.    118.      See   also  "o  Brown  v.  Great  Eastern  R.  Co., 

Regina  v.  Frere,  4  El.   &  Bl.   598;  L.  R.  2  Q.  B.  Div.  406. 

McCarthy   v.    Dublin    &c.    R.    Co.,  9i  London  &c.  R.  Co.  v.  Watson, 

Irish,  3  C.  L.  511.     See  also  Burns  L.  R.  4  C.  P.  Div.  118,  3  C.  P.  Div. 

v.   Jagmetty,   86   N.   J.   23,   90  Atl.  429. 

1050.  82  Section  145. 

87  Dearden  v.  Townsend,  L.  R.  1 
Q.  B.  10. 


261 


PENAL  OFFENSES 


§868 


§868   (728).     Sale  of  tickets  without  authority— "Scalpers."— 

Some  oi  the  states  prohibit  "ticket  scalping"."  or  the  sale,  by 
others  than  ticket  agents  of  the  respective  roads,  of  railroad 
tickets.  Such  a  statute  l)eing  in  the  nature  of  a  poHce  regu- 
lation, it  is  held  not  to  be  a  regulation  of  interstate  commerce, 
and  does  not  violate  the  constitution  of  the  United  States,  nor 
does  it  violate  the  provision  of  a  state  constitution  that  "no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law."'^^  But  this  regulation  is  generally  held  not  to 
apply  to  the  sale  by  a  traveler  of  an  unused  portion  of  a  ticket 
purchased  for  his  own  use.^'* 

§869  (729).  Climbing  on  cars — Evading  payment  of  fare. — 
Numerous  special  pro\'isions  for  the  protection  of  railroad  com- 
panies in  the  operation  of  their  roads  and  of  the  public  patron- 
izing them  have  been  made  by  law  in  the  various  states.     In 


93  Burdick  v.  People,  149  111.  600, 
Z6  N.  E.  948,  24  L.  R.  A.  152.  and 
note,  41  Am.  St.  329;  Fry  v.  State, 
6Z  Ind.  552,  30  Am.  Rep.  238;  Com- 
monwealth V.  Wilson,  ^7  Legal  In- 
telligencer (Pa.)  484,  56  .A.m.  & 
Eng.  R.  Cas.  230;  Commonwealth 
V.  Keary,  198  Pa.  St.  500,  48  Atl. 
472;  Samuelson  v.  State  (Tenn.), 
95  S.  W.  1012.  See  also  State  v. 
Thompson,  47  Ore.  492,  84  Pac.  476, 
4  L.  R.  A.  (N.  S.)  480;  Ex  parte 
O'Neill  (Wash.),  83  Pac.  104,  3  L. 
R.  A.  (N.  S.)  558,  and  other  cases 
cited  in  note.  But  see  Tyroler  v. 
Warden,  157  N.  Y.  116,  51  N.  E. 
1006,  43  L.  R.  A.  264,  68  Am.  St. 
76Z;  People  v.  Caldwell,  168  N.  Y. 
671,  61  N.  E.  1132,  affirming  64 
App.  Div.  (N.  Y.)  46.  As  to  in- 
junction in  such  a  case,  see  Schu- 
bach  V.  McDonald,  179  Mo.  163,  78 
S.  W.  1020,  65  L.  R.  A.  136.  101 
Am.  St.  452;  Nashville  R.  Co.  v. 
McConnell.  82  Fed.  66;  Bittman  v. 
Louisville   &c.   R.   Co.   (U.    S.),  28 


Sup.  Ct.  91,  and  note  in  10  L.  R.  A. 
(N.  S.)  437. 

94  In  North  Carolina  the  statute 
provides  that  "it  shall  be  unlawful 
for  any  person  to  sell  or  deal  in 
tickets  issued  by  any  railroad  com- 
pany unless  he  is  a  duly  authorized 
agent  of  said  railroad  company." 
It  was  held  that  the  prohibition 
does  not  extend  to  the  simple  sale 
of  a  ticket  an  individual  may  hap- 
pen to  have  that  he  can  not  use, 
since  such  a  sale  is  not  "dealing 
in  tickets,"  and  is  not  within  the 
reason  for  the  statute.  State  v. 
Ray,  109  N.  Car.  7Z6,  14  S.  E.  83. 
14  L.  R.  A.  529,  and  note,  52  Am. 
&  Eng.  R.  Cas.  157;  State  v.  Clark. 
109  N.  Car.  739,  note,  14  S.  E.  84. 
In  Indiana  the  statute  does  not  ap- 
ply to  special,  half-fare,  or  excur- 
sion tickets;  and  the  sale  of  a  ticket 
marked  with  the  word  "special"  is 
prima  facie  not  unlawful.  State  v. 
Fry,  81  Ind.  7. 


5  870 


I<  All.KOADS 


262 


many  of  the  states,  cliiii^ing  to  or  cliinl)in_<4  uprii  railroad  entwines 
or  cars  ov  one  not  a  passenger  or  em])loye  is  made  a  misde- 
meanor.■''  So,  in  some  states  a  penalty  is  prescribed  for  riding 
upon  freight  trains  without  lawful  authority,  and  for  entering 
]:)assenger  trains  furti\ely,  with  the  intention  of  riding  thereon, 
and  evading  the  payment  of  fare.'"'  The  Georgia  statute,  mak- 
ing it  an  offense  to  steal  a  ride  on  a  railroad  train,  was  held 
violated  in  a  case  where  a  person  without  fare  or  ticket  was 
ordered  to  leave  the  train,  and  after  an  opportunity  to  comply 
with  the  demand  he  concealed  himself  in  the  car  and  continued 
his  journey,  and  it  was  held  no  defense  that  he  was  under  the 
intluence  of  liquor  at  the  time.^' 

§870  (730).  Placing  obstruction  on  track. — It  is  made  a 
oenal  ofYense  in  nearly  all  the  states  to  place  any  obstruction 
upon  the  track  of  a  railroad,  or  to  wilfully  or  maliciously  commit 
any  other  act  in  order  to  throw  from  tlie  track  the  engine  and 
cars.""^  It  is  not  material,  in  making  out  an  (jffcnse  under  such 
a  statute,  to  show  that  the  railroad  company  whose  track  was 
obstructed  was  duly  incorporated.^®     The  offense  may  be  com- 


»5  Moorcs  &  Elliott  Ind.  Crim. 
L.  §  670  (form  of  indictment, 
§  1190). 

96  Dyer  v.  Placer,  90  Cal.  276,  27 
Pac.  197.  See  Regina  v.  Frere,  4 
El.  &  Bl.  598;  Queen  v.  Paget,  L. 
R.  8  Q.  B.  D.  151. 

»7BrazzelI  v.  State,  119  Ga.  559, 
46  S.  E.  837. 

98  Clifton  V.  State,  72,  Ala.  473; 
Hodge  V.  State,  82  Ga.  643,  9  S.  E. 
676:  Riley  v.  State.  95  Ind.  446; 
Coghill  V.  State,  Z7  Ind.  Ill;  State 
V.  Hessenkamp,  17  Iowa  25;  State 
V.  Douglass,  44  Kans.  618,  26  Pac. 
476;  Commonwealth  v.  Bakeman, 
105  Mass.  53;  People  v.  Dunkel,  39 
Mich.  255;  State  v.  Kilty,  28  Minn. 
421,  10  N.  W.  475;  State  v.  Kluse- 
man,  53  Minn.  541,  55  N.  W.  741; 
State  V.  Stubblefield,   157  Mo.  360. 


58  S.  W.  2,2,7;  Davis  v.  State,  51 
Nehr.  301,  70  N.  W.  984;  State  v. 
Beckman,  57  N.  H.  174;  People  v. 
Adams,  16  Hun.  (N.  Y.)  549;  Craw- 
ford V.  State,  15  Lea  (Tenn.)  343, 
54  Am.  Rep.  423;  Barton  v.  State. 
28  Tex.  App.  483,  13  S.  W.  783: 
State  V.  Bisping,  123  Wis.  267,  101 
N.  W.  359;  Moores  &  Elliott  Ind. 
Crim.  L.  §§  398,  989  (form  of  indict- 
ment). The  word  "railroad"  in 
such  an  act  includes  street  rail- 
roads. Commonwealth  v.  McCaul- 
ly.  2  Pa.  Dist.  62,. 

"9  See  Duncan  v.  State,  29  Fla. 
439.  10  So.  815;  Hodge  v.  State, 
82  Ga.  643.  9  S.  E.  676;  State  v. 
Wentworth,  Z7  N.  H.  196;  Also- 
brook  V.  State,  126  Ga.  100,  54  S. 
E.  805. 


163 


I'KXAL   OFFENSES 


§870 


mlttcd  hy  obstructing^  the  track  of  a  railroad  operated  by  private 
individuals. 1  It  is  not  necessary  to  show  that  any  enj^ine  or 
car  was  actually  stopped  or  impeded.-  The  i)rincipal  element 
of  criminality  in  the  ofiFcnse  is  the  endan}i;ering  of  life  or  prop- 
erty, and  it  is  sufficient  to  show  that  the  act  tended  to  render 
dani^erous  the  passa.^e  of  trains  over  the  road.''  No  intent  to 
injm-e  any  j)articular  ])erson  need  be  shown/  nor  need  a  specific 


1  TTodRc  V.  State,  82  Ga.  643.  9 
S.  E.  676.  Sec  also  Walker  v. 
State.  07  Ga.  213.  22  S.  E.  528.  Un- 
der the  California  penal  code  tlie 
malicious  destruction  of  a  railroad 
track  is  a  felony;  and  this  applies 
to  a  track  which  is  used  for  the 
running  of  cable  street  cars.  Peo- 
ple V.  Stites,  75  Cal.  570,  17  Pac. 
693;  Commonwealth  v.  ]\IcCaully, 
2  Pa.  Dist.  63. 

-State  V.  Clemens.  38  Iowa  257; 
State  V.  Kilty,  28  Minn.  421,  10  N. 
W.  475.  To  sustain  a  conviction 
under  the  Texas  statute,  the  evi- 
dence must  show  that  the  obstruc- 
tion was  such  as  might  have  en- 
dangered human  life.  Bullion  v. 
State,  7  Tex.  App.  462.  But  the 
persons  whose  lives  were  endan- 
gered need  not  be  specified.  Bar- 
ton V.  State.  28  Tex.  App.  483,  13 
.*=.  W.  783. 

3  State  V.  Wentworth,  37  N.  H. 
196.  As  to  sufficiency  of  indict- 
ment, see  State  v.  Oliver,  55  Kans. 
711,  41  Pac.  954.  In  Riley  v.  State. 
95  Ind.  446.  the  court  says:  "We 
suppose  that  if  the  obstruction  was 
apparently  sufficient  to  endanger 
the  passage  of  trains  or  to  throw 
the  engine  or  cars  from  the  track, 
the  offender  ought  not  to  be  ac- 
quitted merely  because,  through  a 
lack  of  judgment,  he  did  not  pro- 
vide sufficient  means  to  accomplish 


his  criminal  purpose."  Under  3  and 
4  Vict.  Ch.  97,  §  15,  it  is  a  crime 
to  place  an  obstruction  upon  a 
railway  track,  even  though  the  road 
has  not  yet  been  opened  up  for 
traffic.  Regina  v.  Bradford,  8  Cox 
C.  C.  309.  But  in  Tennessee,  the 
statute  provided  a  punishment  for 
the  obstruction  of  a  railroad  track, 
whereby  cars  are  thrown  off  the 
track.  It  was  held  that  to  make 
out  the  offense,  some  vehicle  men- 
tioned in  the  statute  must  be  shown 
to  have  been  thrown  from  the 
track,  and  that  where  it  appeared 
that  a  handcar  only  had  been  de- 
railed by  the  obstruction,  a  con- 
viction could  not  be  sustained, 
since  the  statute  did  not  mention 
handcars.  Harris  v.  State,  14  Lea 
(Tenn.)  485.  It  is  not  necessary 
to  prove  that  all  the  obstructions 
named  in  the  indictment  were 
placed  upon  the  road.  It  is  suffi- 
cient, in  making  out  the  crime,  to 
show  that  the  road  was  obstructed 
by  any  one  of  the  articles  alleged 
to  have  been  placed  thereon.  Al- 
lison V.  State,  42  Ind.  354. 

4  Commonwealth  v.  Bakeman, 
105  Mass.  53.  It  is  sufficient  to 
charge  the  crime  in  the  language 
of  the  statute,  without  setting  out 
in  the  indictment  the  names  of  the 
persons  whose  lives  were  endan- 
gered.     Barton    v.    State,    28    Tex. 


§870 


RAILROADS 


264 


mtent  to  do  an  injury  to  life  or  property  be  shown.^  Thus,  under 
a  statute  punishing  any  person  who  should  "wilfully  and  ma- 
liciously" place  any  obstruction  on  a  railroad  track,  a  person 
who  placed  an  obstruction  on  the  track  for  the  purpose  of  ob- 
taining a  reward  from  the  railroad  company  by  giving  notice  of 
the  obstruction  was  held  guilty,  though  he  intended  to  and  did 
signal  and  stop  the  train  so  as  to  prevent  injury.''  Evidence 
that  the  road  was  so  ol^structed  as  to  endanger  the  passage  of 
trains,  and  that  the  person  obstructing  it  knc\v  at  the  time  that 
it  was  being  used  and  operated  as  a  railroad,  will  raise  the  pre- 
sumption of  malicious  intent.'^  And  this  presumption  cannot 
be  overcome  by  proof  that  the  intention  was  merely  to  stop  the 
train  and  claim  a  reward,  or  to  do  some  other  mischievous  act 
by  which  no  injury  should  be  permitted  to  accrue  to  life  or 
property.^  The  fact  that  the  railroad  has  never  become  the 
legal  owner  of  its  right  of  way  across  defendant's  land,  or  has 
been  guilty  of  a  breach  of  the  contract  by  which  such  right  was 
acquired,  is  no  defense  to  an  indictment  against  a  land-owner 
for  obstructing  a  railroad  track  where  it  crosses  his  land.^     Evi- 


App.  483,  13  S.  W.  783.  As  to  in- 
dictment, see  Riley  v.  State,  95 
Ind.  446;  Commonwealth  v.  Hicks, 
7  Allen  (Mass.)  573;  State  v.  Kluse- 
man,  53  Minn.  541,  55  N.  W.  741; 
McCarty  v.  State,  Z1  Miss.  411; 
State  V.  Wentworth,  Z1  N."  H.  196. 

5  Clifton  V.  State,  IZ  Ala.  473; 
People  V.  Adams,  16  Hun  (N.  Y.) 
549;  State  v.  Bisping,  123  Wis.  267, 
101  N.  W.  559. 

8  Crawford  v.  State,  15  Lea 
(Tenn.)  343,  54  Am.  Rep.  423. 

'^  State  V.  Hessenkamp,  17  Iowa 
25.  Evidence  of  the  probable  con- 
sequences of  the  act  is  sufficient 
to  warrant  the  jury  in  inferring 
a  criminal  purpose.  Common- 
wealth v.   Bakeman,   105   Mass.  53. 

8  State  V.  Johns,  124  Mo.  379,  27 
S.  W.   1115;   State  v.   Beckman,   57 


N.  H.  174;  Crawford  v.  State,  IS 
Lea  (Tenn.)  343,  54  Am.  Rep.  423. 
But  advising  and  encouraging  an- 
other to  place  an  obstruction  on 
the  track,  believing  that  it  is  so 
placed  with  malicious  intent,  is  not 
sufficient  to  constitute  a  crime  un- 
der such  a  statute  where  the  person 
placing  the  obstruction  on  the 
track  is  a  detective  seeking  evi- 
dence against  the  accused,  and  only 
places  the  obstruction  for  the  pur- 
pose of  obtaining  such  evidence. 
State  V.  Douglass,  44  Kans.  618,  26 
Pac.  476.  See  also  Nowell  v.  State, 
94  Ga.  588,  21  S.  E.  591,  and  Reg. 
V.  Holroyd,  2  M.  &  Rob.  339,  as  to 
accidental    obstruction. 

^  State   V.   Hessenkamp,    17    Iowa 
25. 


265  PENAL   OFFENSES  §  871 

(lencc  th.'it  the  dcfeiKhmt  ])laced  a  similar  ol^stniction  on  another 
]iart  of  the  track  a  short  time  alter  the  offense  under  consid- 
eration has  been  held  competent  in  trying  an  indictment  for  a 
crime  of  this  character,  as  tending  to  raise  the  presumption  of 
the  defendant's  guilt,^"  and  as  part  of  the  res  gestae.^^  The 
English  statute  is  designed  to  prevent  any  and  all  interference 
with  the  operation  of  railroads,  and  is  much  more  general  in  its 
orohibition  than  the  statutes  of  most  of  the  states.^-  Under 
this  statute  it  has  been  held  a  crime  to  place  an  obstruction  on 
the  track  of  a  railroad  which  had  not  yet  been  opened  up  for  traf- 
fic." And  one  who  piles  rubbish  on  the  track  of  a  railroad,^* 
or  alters  signals,"  or  stands  upon  the  railroad  right  of  way  and 
makes  gestures  with  his  hands  and  arms,^°  thereby  causing 
trains  to  stop,  or  otherwise  interfering  with  the  operation  of 
the  road,  is  guilty  of  obstructing  the  road  within  the  meaning 
of  the  statute.  In  a  recent  Georgia  case  it  is  held  that  an  indict- 
ment charging  accused  with  maliciously  attempting  to  obstruct 
a  railroad  track,  and  that  he  procured  a  cross-tie  and  carried 
the  same  to  the  track  with  the  intent  to  place  said  cross-tie 
upon  the  track  to  wreck  a  railroad  train,  but  was  prevented 
from  so  doing,  simply  charges  an  attempt  to  obstruct  the  track 
under  one  provision  of  the  Penal  Code,  and  not  an  attempt  to 
wreck  a  railroad  train  under  an  entirely  different  section. ^^ 

§871  (731).  Shooting  or  throwing  missile  at  car. — Many 
states  prescribe  a  penalty  for  shooting  at  or  throwing  any  mis- 
sile at  a  railroad  car.^^     Under  the  North  Carolina  statute  the 

"State  V.  Wentworth,  37  N.  H.       C.  574,  L.  R.*l  Cr.  Cas.  Res.  253. 
196.  16  Regina  v.  Hardy,  11  Cox  C.  C. 

11  Barton  v.  State,  28  Tex.  App.      656. 

483,  13  S.  W.  783.     See  also  Stan-  i7  Alsobrook    v.    State,    126    Ga. 

field  V.  State,  43  Tex.  Crim.  10,  62  100,  54  S.  E.  805. 

S.   W.  917.  IS  See      Burkhart     v.      Common- 

12  24  and  25  Vict.  Ch.  97,  §  15.  wealth,  119  Ky.  317.  83  S.  W.  633. 

13  Regina  v.  Bradford,  8  Cox  C.  26  Ky.  L.  1245.  An  indictment  for 
C.  309.  shooting  at  and  injuring  a  car  un- 

"  Roberts  v.  Preston,  9  C.  B.  N.  der  the  Georgia  statute  must  aver 
S.  206.  that  the  car  belonged   to   a  "char- 

is  Regina  V.  Hadfield,  11   Cox  C.      tered"  railway  company.     Kiser  v. 


c  872 


RAILROADS 


266 


indictinenl  must  charge  that  the  car  was  in  motion  or  stopped 
merely  for  a  temporary  purpose  at  the  time  the  alleg-ed  offense 
was  committed.^'-'  The  court,  in  the  case  referred  to,  construed 
the  statute  as  intended  to  secure  the  safety  of  persons  upon  the 
train  and  protect  the  cars  while  in  use,  and  not  wdien  in  the 
round-house  or  in  the  yards  of  the  company  with  no  one  upon 
them.  But.  under  the  Massachusetts  statute,  throwin^^  a  missile 
at  a  car  is  a  penal  offense,  whether  the  car  is  in  use  at  the  time 
or  not.'-°  Where  the  offense  denounced  by  the  statute  consists 
in  merely  shootin,2^  or  throwin.c:  at  a  car,  it  is,  of  course,  un- 
necessary to  pro\e  that  the  car  was  struck.-^  And,  where  the 
statute  making  it  an  offense  to  hurl  any  missile  at  or  into  a 
moving  train,  it  was  held  that  one  who  throws  a  missile  into 
a  coach  in  a  moving  train,  although  standing  on  the  platform 
of  the  coach   at  the  time,  was  punishable  imder  the  statute. -- 

§872  (732).  Breaking  into  depot  or  car — Burglary. — Kreak- 
ing  and  entering  a  railroad  depot,-''  or  station-house,-*  or  a  rail- 
road car,-^  w^ith  intent  to  commit  a  felony,  is  made  burglary  by 


State,  89  Ga.  421,  15  S.  E.  495.  An 
indictment  under  the  Florida  stat- 
ute must  set  forth  the  facts  and 
circumstances  which  constitute  the 
offense.  Hamilton  v.  State,  30  Fla. 
229,  11  So.  523. 

Instate  V.  Boyd,  86  N.  Car.  634, 
9  Am.  &  Eng.  R.  Cas.  155.  See  also 
State  V.  Hinson,  82  N.  Car.  597. 

20  Commonwealth  v.  Carroll,  145 
Mass.  403,  14  N.  E.  618. 

21  State  V.  Hinson,  82  N.  Car.  597. 

22  State  V.  Ray,  87  ^liss.  183,  39 
So.  521. 

23  State  V.  Scripture,  42  N.  H. 
485.  H  the  depot  was  jointly  used 
or  occupied  by  two  railroad  cor- 
porations, it  may  be  so  charged  in 
the  indictment.  State  v.  Edwards. 
109  Mo.  315.  19  S.  W.  91;  State  v. 
Bishop.  51  Vt.  287,  31  Am.  Rep. 
690.  and  note. 


24  Norton  v.  State,  74  Ind.  337. 
This  case  holds  that  it  is  sufficient 
to  designate  the  railroad  company 
by  its  corporate  name  in  the  indict- 
ment without  averring  its  corpor- 
ate existence,  since  that  will  be  im- 
plied. In  deciding  this  case  the 
court  said:  "No  innocent  man  can 
ever  be  put  in  peril  by  the  adoption 
of  this  rule,  and  many  guilty  ones 
may  by  its  operation,  be  prevented 
from  escaping  merited  punish- 
ment." Burke  v.  State.  34  Ohio  St. 
79. 

2-^  Lyons  v.  People.  68  111.  271; 
Boyer  v.  Commonwealth,  14  Ky. 
T..  167,  19  S.  W.  845:  State  v.  Par- 
ker, 16  Nev.  79;  Nicholls  v.  State, 
68  Wis.  416,  32  N.  W.  543,  60  Am. 
Rep.  870.  On  a  trial  under  the 
-Alabama  statute  for  breaking  into 
a  railroad   car   "upon   av  connected 


267 


PENAL  OFFENSES 


§873 


the  statutes  of  most  of  the  states.  I>reakins4'  into  a  lieket  otiice 
in  the  (hiy-timc.  with  intent  to  steal,  is  merely  a  misdemeanor 
in  iMassaehusetts.-''  This  is  the  general  rule.  In  the  absence 
of  a  statute  changing  the  rule,  the  breaking  and  entering  must 
be  in  the  night-time  in  order  to  constitute  burglary.-^  And  in 
Texas  it  is  held  that  a  mere  attempt  to  break  and  enter  a  car 
is  not  a  penal  offense.-**  And  the  act  of  Congress  of  February 
13.  1913,  makes  it  a  penal  offense  to  unlawfully  enter  or  break 
the  seal  of  any  car  containing  interstate  shipments,  with  intent 
to  commit  larceny,  or  to  steal  any  of  such  goods  therefrom.-* 
In  charging  the  burglary  of  a  railroad  car  it  is  not  necessary  to 
allege  that  the  railroad  company  is  a  corporation,  partnership 
or  stock  company.  The  corporate  existence  will  be  implied.'"' 
But  it  has  been  intimated  that  if  such  fact  is  alleged  the  allega- 
tion must  be  proved. ^^ 

§873  (733).  Injury  to  railroad  property — Malicious  trespass. 
— Injury  to  or  interference  with  railroad  property  is  made  an 
offense  by  special  statute  in  many  states.^-    Even  in  the  absence 


with  a  railroad  in  this  state,"  it  is 
not  necessary  to  prove  that  the 
car  was  "standing  on"  the  tracks 
of  the  railroad  company.  Johnson 
V.  State,  98  Ala.  57,  13  So.  503. 

26  Commonwealth  v.  Carey,  12 
Cush.    (Mass.)   246. 

27  People  v.  Bielfass,  59  Mich. 
576.  26  N.  W.  771;  State  v.  White, 
4  Jones  L.  (N.  Car.)  349;  Adams 
V.  State,  31  Ohio  St.  462;  Devine  v. 
State,  22  Tex.  App.  683,  3  S.  W. 
660. 

28  Summers  v.  State.  49  Tex.  Cr. 
App.  90.  90  S.  W.  310. 

29  Morris  v.  United  States,  229 
Fed.  516. 

3"  Morris  v.  United  States,  229 
Fed.  516;  Norton  v.  State.  74  Ind. 
337:  State  v.  Watson.  141  ^lo.  338. 
42  S.  W.  726;  State  v.  Shields.  89 
Mo.  259.  1  S.  W.  336. 


^1  Johnson  v.  State,  73  Ala.  483; 
but  see  Crawford  v.  State,  44  Ala. 
382. 

32  Clifton  V.  State,  73  Ala.  473. 
Offenses  against  property  of  steam- 
boats, railroads  and  other  carriers 
made  punishable.  Act  July  1.  1890 
(Acts  La.  1890,  No.  47,  p.  40).  Ma- 
licious injury  to  railroad  tracks, 
bridges,  etc.,  punished  by  impris- 
onment at  hard  labor.  Act  March 
2,  1891  (Laws  Wash.  1891.  c.  69. 
§  4,  p.  120).  The  wilful  injury  to 
or  interference  with  railroad  prop- 
erty made  a  misdemeanor.  .Act 
March  19.  1891  (St.  Nev.  1891.  c. 
67.  p.  78").  The  Minnesota  statute 
declares  that  "any  person  who  dis- 
places, removes,  injures  or  destroys 
a  rail,  sleeper,  switch,  bridge,  via- 
duct, culvert,  embankment,  or 
structure,    or   any    part   thereof   at- 


§874 


RAILROADS 


268 


of  such  ci  special  statute  an  injury  to  the  property  of  a  raih^oad 
company,  if  committed  with  a  malicious  intent,  would  doubtless 
l>e  punishable  as  malicious  mischief  or  malicious  trespass  in 
most  of  the  states. ^^  But  employes  of  a  railroad  company  who 
remove  a  fence  from  real  estate  claimed  by  the  company  are 
not  guilty  of  malicious  trespass  in  the  absence  of  any  malicious 
intent."* 

§874  (734).  Other  crimes  against  railroad  companies. — We 
have  treated  at  some  length  many  of  the  offenses  against  rail- 
road companies  which  are  specifically  denounced  by  statute  in 
most  of  the  states;  but  there  are  many  other  crimes  from  which 
railroad  companies  as  well  as  individuals  may  suffer,  even 
though  they  are  not  expressly  named  in  the  statute  defining  the 
offense.  We  shall  mention  some  of  the  most  common  offenses 
of  this  character,  without  considering  them  in  detail.  Railroad 
officers  and  employes  have  often  been  held  guilty  of  embezzle- 
ment under  general  statutes,^^  and  third  persons  have  been  held 
indictable  for  ol)taining  goods  or  money  from  railroad  compa- 
nies by  false  pretenses.^*'  So,  it  has  been  held  that  the  fraud- 
ulent and  unlawful  counterfeiting  of  a  railroad  ticket  is  forgery 
at  common  law.'^     Stealing  a  railroad  ticket  mav  also  constitute 


tached  to  or  appertaining  to  or  con- 
nected with  a  railway"  shall  be 
punished.  It  was  held  that  this 
did  not  apply  to  a  fence  or  other 
structure  not  constituting  a  part  of 
the  railroad  proper.  State  v. 
Walsh,  43  Minn.  444.  Those  struc- 
tures forming  parts  of  railway  beds 
by  which  they  span  streams, 
chasms,  ditches,  etc.,  are  "bridges," 
the  wilful  and  malicious  burning  of 
which  is  prohibited  by  the  Florida 
statute.  Duncan  v.  State.  29  Fla. 
439.  10  So.  815. 

32  See  State  v.  Simpson,  2  Hawks 
(N.  Car.)  460;  Rex  v.  Rowry,  10 
Jur.  211. 

34  Hughes  v.  State,  103  Ind.  344, 
2  N.  E.  956. 


35  State  V.  Goode,  68  Iowa  593, 
27  N.  W.  772;  Commonwealth  v. 
Tuckerman,  10  Gray  (Mass.)  173; 
State  V.  Porter,  26  Mo.  201;  Ricord, 
Ex  parte,  11  Nev.  287;  Calkins  v. 
State,  18  Ohio  St.  366,  98  Am.  Dec. 
121,  and  note.  Compare  Panama 
R.  Co.  V.  Johnson,  63  Hun  629,  17 
N.  Y.  S.  m\  State  v.  Minis,  26 
Minn.  191,  2  N.  W.  492. 

36  Reg.  V.  Boulton,  2  C.  &  K.  917, 
13  Jur.  1034,  distinguished  in  Reg. 
v.  Kilham,  11  Cox  C.  C.  561,  22  L. 
T.  625.  See  also  White  v.  State, 
86  Ala.  69,  5  So.  674;  State  v.  Ha- 
ven, 59  Vt.  399,  9  Atl.  841. 

37  Commonwealth  v.  Ray,  3  Gray 
(Mass.)  441.  See  also  State  v. 
Weaver,    94    N.    Car.   836,    55   Am. 


269 


PENAL  OFFENSES 


§874 


l.ircfin,  "^  l)Ul  not,  it  has  been  held,  where  it  is  nut  signed  and 
stamped,'"  and  so,  of  course,  may  the  steaHng  ol  grain  or  other 
property  from  a  car/"  An  Illinois  statute  making  it  unlawful 
to  use  or  attempt  to  use  any  pass,  "which,  by  conditions  ex- 
pressed thereon,  is  not  transferable,"  has  been  held  not  to  cover 
the  case  of  one  using  a  pass  containing  no  other  restriction  as 
to  its  transferability  than  the  endorsement,  "if  presented  by  any 
other  person  than  the  person  named  thereon,  the  conductor  will 
take  up  pass  and  collect  fare.""  An  interesting  question  arose 
in  a  recent  case  in  which  the  defendant  was  charged  with  felo- 
niously breaking  and  entering  a  freight  car  in  the  night-time 
with  intent  to  commit  larceny.  The  entry  was  made  in  one 
county,  while  the  car  was  moving,  and  the  defendant  continued 
in  the  car,  with  the  same  felonious  intent,  until  after  the  car 
had  passed  into  another  county,  in  which  the  defendant  was 
indicted.  The  court  held  that  there  was,  in  law,  a  fresh  entry 
in  the  latter  county,  and  that  the  defendant  w^as  indictable 
therein.'*- 


Rep.  647,  and  note;  Reg.  v.  Boult, 
2  C.  &  K.  604,  61  Eng.  C.  L.  603. 

38McDaniels  v.  People,  118  111. 
301,  8  N.  E.  687;  State  v.  Brin,  30 
Minn.  522,  16  N.  W.  406;  Eaton  v. 
Farmer,  46  N.  H.  200.  But  see 
State  V.  Hill,  1  Houst.  Crim.  (Del.) 
421;  State  v.  Musgang,  51  Minn. 
556,  53  N.  W.  874. 

39McCarty  v.  State,  1  Wash.  St. 
377,  25  Pac.  299.  See  also  Millner 
V.  State,  15  Lea  (Tenn.)  179. 

40  Lucas  V.   State,  96  Ala.  51,   11 


So.  216;  Rogers  v.  State,  90  Ga.  463, 

16  S.  E.  205;  Smith  v.  State,  28  Ind. 
321;  State  v.  Poynier,  36  La.  Ann. 
572;   State  v.   Sharp,   106  Mo.   106. 

17  S.  W.  225;  Manson  v.  State,  24 
Ohio  St.  590;  Price  v.  State,  41  Tex. 
215;  Sikes  v.  State  (Tex.  Crim. 
App.),  28  S.  W.  688. 

*iAlIardt  v.  People,  197  III.  501. 
64  N.  E.  533. 

*2  Powell  V.  State,  52  Wis.  217, 
9  N.  W.  17,  9  Am.  &  Eng.  R.  Cas. 
156. 


CHAl'TKR  XXX. 
TAXATION    Ol"    RAILROAD    PROPERTY 


Sec. 

880.  Taxation    of    railroads  —  Pre- 

liminary. 

881.  Legislative   power. 

882.  Whether     boards     of     assess- 

ment and  equalization   have 
judicial  powers. 

883.  Appropriate     method     of     as- 

sessing. 

884.  Methods  of  taxation. 

885.  What  is  meant  by  "roadway" 

in  revenue  laws. 

886.  Railroad    bridges    and    bridge 

companies. 

887.  Statutory    method    of    assess- 

ment exclusive. 

888.  Legislative  discretion — Classi- 

fication. 

889.  Equality  and   uniformity. 

890.  Equality      and      uniformity  — 

Double    taxation. 
89L    Duties  of  corporation — Rights 

of  stockholders. 
892.    Failure  of  the   corporation   to 

make     return  —  Effect     on 

stockholder. 


Sec. 

893.  Situs   of   stock   of  nonresident 

corporation    owned    by    do- 
mestic corporation. 

894.  Situs  of  rolling  stock. 

895.  Discrimination. 

896.  Lien    of   assessment. 

897.  Taxation   of  street  and   inter- 

urban    railroads. 

898.  Relinquishment  of  the   power 

of  taxation. 

899.  Exemption     from     taxation  — 

Consolidation. 

900.  Right    of    exemption    non-as- 

signable. 

901.  Immunity    from    taxation    not 

a  franchise. 

902.  Exemption    of    property    used 

in  operating  railroad. 

903.  Withdrawal   of  exemption. 

904.  Remedies — Injunction. 

905.  Remedies  —  Injunction  —  Suit 

by  taxpayer. 

906.  Inequality   no   ground    for    in- 

junction. 

907.  Tender    of    amount    of    taxes 

owing  is  required. 


§880  (735).  Taxation  of  railroads — Preliminary. — The  power 
of  a  state  to  tax  railroad  i)roperty  of  every  description  is  a 
sovereign  power,  and  over  jnirely  domestic  or  intrastate  railroad 
companies  the  power  of  the  state  is  supreme,  but  over  railroad 
companies  engaged  in  interstate  commerce  the  power  of  the 
state  is  necessarily  abridged  to  some  extent  by  the  commerce 
clause  of  the  federal  constitution.  The  property  of  a  railroad 
comi)anv  engaged  in  interstate  commerce  which  is  not  used  in 
any  way  in  its  business  of  conducting  commerce  l)etween  the 
states  is,  of  course,  subject  to  taxation  by  the  state  to  the  same 


271 


TAXATION  OF  RAILROAD  PROPERTY 


§881 


extent  as  tin-  like  i)roj)ert}'  of  any  artificial  or  natural  person. 
If.  for  instance,  a  railroad  company  is  the  owner  of  lots  which 
are  not  used  in  connection  \\\{h  its  business  as  a  carrier  of 
articles  of  interstate  commerce  the  lots  are  subject  to  taxation 
by  the  state  to  the  same  extent  as  similar  property  of  natural 
persons,  and  the  power  to  tax  such  property  is  not  affected  by 
the  commerce  clause  of  the  federal  constitution.^  As  the  fed- 
eral constitution  exerts  such  an  important  influence  upon  the 
subject  of  taxation  the  subject  can  be  more  clearly  presented  by 
treating  the  class  of  railroad  companies  which  may  be  denom- 
inated interstate  railroads  in  a  separate  chapter,  and  accord- 
in,q]}-  we  have  ach^pted  that  method. 

§881  (736).  Legislative  power. — The  legislature  is  invested 
with  supreme  power  over  the  subject  of  taxation,  except  in  so 
far  as  the  constitution  limits  and  abridges  the  power.  Taxes 
must  be  levied  by  the  legislature  and  the  mode  of  assessing 
property  must  be  prescribed  l)y  statute.-     We  do  not  mean,  of 


1  See  also  as  to  taxation  on  prop- 
erty having  a  situs  in  the  state  al- 
though employed  in  interstate  com- 
merce. Atlantic  &c.  Tel.  Co.  v. 
rhiladelphia,  190  U.  S.  160,  23  Sup. 
Ct.  817,  47  L.  ed.  996.  As  to  realty 
not  essential  to  the  operation  of 
the  road  being  assessable  by  local 
authorities,  see  St.  Louis  &c.  R 
Co.  V.  Miller,  67  Ark.  498,  55  S.  W 
926;  Chicago  &c.  R.  Co.  v.  People, 
195  111.  184,  62  N.  E.  869;  Harter 
V.  Chicago  &c.  R.  Co.,  114  Iowa 
330,  86  N.  W.  266;  State  v.  Chicago 
&c.  R.  Co.,  162  Mo.  391,  13  S.  W 
495;  Erie  R.  Co.,  Matter  of,  64 
N.  J.  L.  123,  44  Atl.  976;  Jersey 
City  V.  Board,  74  N.  J.  L.  763,  67 
Atl.  38.  And  see  generally,  note  in 
60  L.  R.  A.  652,  et  seq. 

2  Railroad  Co.  v.  Pennsylvania. 
15  Wall.  (U.  S.)  300,  21  L.  ed.  179: 
State  Railroad  Tax  Cases,  15  Wall 
(U.  S.)  284,  21  L.  ed.  164;  Union 
Pacific   &c.   R.   Co.  v.   Peniston,   18 


Wall.  (U.  S.)  5,  21  L.  ed.  787;  Del- 
aware Railroad  Tax  Case,  18  Wall 
(U.  S.)  206,  21  L.  ed.  888;  Rees  v 
Watertown,  19  Wall.  (U.  S.)  107 
116,  22  L.  ed.  72;  Heine  v.  Levee 
Commissioners,  19  Wall.  (U.  S.) 
655,  22  L.  ed.  223;  North  Missouri 
R.  Co.  V.  Maguire,  20  Wall.  (U.  S.) 
46,  22  L.  ed.  287;  State  Railroad 
Tax  Cases,  92  U.  S.  575,  23  L.  ed. 
663;  Meriwether  v.  Garrett,  102  U. 
S.  472,  515;  Southern  R.  Co.  v 
North  Carolina  Corp.  Co.,  97  Fed 
513;  Bragg  v.  Tufts,  49  Ark.  554. 
6  S.  W.  158;  Porter  v.  Rockford 
&c.  Co.,  76  III.  561;  Ottawa  v.  Mc- 
Caleb,  81  111.  559;  Hyland  v.  Brazil. 
128  Ind.  335,  26  N.  E.  672;  Dubuque 
V.  Chicago  &c.  Co.,  47  Iowa  201 : 
Louisville  &c.  Co.  v.  Common- 
wealth, 10  Bush  (Ky.)  43;  Turner 
V.  Althaus,  6  Nebr.  54;  State  v 
Central  &c.  Co.,  21  Nev.  260.  3( 
Pac.  689:  State  v.  Bentley,  23  N.  T 
L.  532:  State  v.  Flavell,  24  N.  J.  I. 


§881 


RAILROADS 


course,  that  the  exact  sum  shall  1)e  designated  l)y  statute,  l)ut 
we  do  mean  that  the  tax  shall  l)e  provided  for  l)y  statute  and 
the  rate  fixed  or  due  authority  conferred  upon  state,  county  or 
municipal  ofTficers  to  designate  the  amount  of  the  tax  that  shall 
be  assessed.  All  taxation  must  rest  upon  legislation,  and  the 
law-making  department  must  provide  the  mode  of  assessment. 
Defects  in  the  mode  cannot  be  remedied  by  the  judiciary,  but 
where  a  mode  is  provided,  and  an  exemption  is  made  which  the 
legislature  had  no  power  to  make,  the  provision  making  the 
exemption  will  fall  and  the  other  part  of  the  statute  will  stand.^ 
Of  all  matters  of  policy  and  expediency,  the  legislature  is  the 
exclusive  judge,  and  its  determination  is  final  and  conclusive.* 
The  policy  of  the  law  is  to  compel  all  property  held  or  used  for 
purposes  of  gain  or  profit  to  bear  its  burden  of  taxation,  but 
as  there  can  be  no  effective  assessment  of  taxes  without  legis- 
lative authority,  it  is  evident  that  the  failure  to  include  all  prop- 
erty may  have  the  effect  to  relieve  it  from  taxation.  A  casus 
omissus  cannot  l)e  supplied  by  the  courts,"'  and  where  the  legis- 


370;  Wisconsin  Cent.  R.  v.  Taylor 
Co.,  52  Wis.  37,  8  N.  W.  833.  See 
Michigan  Cent.  R.  Co.  v.  Powers 
201  U.  S.  245,  26  Sup.  Ct.  459,  5C 
L.  ed.  744.  In  Meriwether  v. 
Garrett,  supra,  it  was  said:  'The 
levying  of  taxes  is  not  a  judicial 
act.  It  has  no  elements  of  one 
It  is  a  high  act  of  sovereignty,  t( 
be  performed  only  by  the  legisla- 
ture." 

3  Huntington  v.  Worthen,  120  U 
S.  97,  7  Sup.  Ct.  469,  30  L.  ed.  588: 
Little  Rock  &c.  Co.  v.  Worthen 
46  Ark.  312;  Norris  v.  Boston,  4 
Mete.  (Mass.)  282.  And  an  ex- 
emption is  not  to  be  presumed 
from  mere  failure  to  make  detailed 
provisions  for  the  valuation.  State 
V.  Milwaukee  St.  R.  Co.,  90  Wis 
550,  63  N.  W.  746.  See  also  State 
V.  Holcaub,  81  Kans.  879,  106  Pac 
1030,  28  L.  R.  A.  (N.  S.)  251. 

*  Spinnej',  Ex  parte,  10  Nev.  323. 


See  also  Board  &c.  v.  Harrell, 
147  Ind.  500,  46  N.  E.  124;  State 
V.  Marion  County,  170  Ind.  595, 
85  N.  E.  513;  Dubuque  v.  Chi- 
cago &c.  R.  Co.,  47  Iowa  196;  Fed- 
eral &c.  R.  Co.  V.  Pittsburgh,  226 
Pa.  St.  419,  75  Atl.  662;  State  Tax 
on  Railway  Gross  Receipts,  15 
Wall.  (U.  S.)  284,  21  L.  ed.  164: 
White's  Supp.  to  Thomp.  Corp 
§§  5880,  5885.  As  showing  the 
broad  powers  of  the  legislature  in 
classifying  and  prescribing  differ- 
ent methods,  see  New  York  v.  Tax 
Comrs.,  199  U.  S.  1,  25  Sup.  Ct. 
70S,  50  L.  ed.  65;  Ohio  River  &c. 
R.  Co.  V.  Dittey,  203  Fed.  537;  Mc- 
Daniel  v.  Texarkana  &c.  Co.,  94 
Ark.  235,  126  S.  W.  727;  State  v. 
Illinois  Cent.  R.  Co.,  246  111.  188,  92 
N.  E.  814. 

^  State  Board  of  Tax  Comrs.  v. 
Holliday,  150  Ind.  216,  49  N.  E.  14 
42   L.    R.   A.  826;    Gwynne  v.   Bur- 


273 


TAXATIOX  OF  RAILROAD  PROPERTY 


§882 


lature  omits  to  subject  property  to  taxation  it  may  escape,  for 
the  courts  have  no  power  to  lay  taxes  upon  property.  It  has 
been  held  that,  where  a  method  is  not  specifically  prescribed 
for  taxing-  corporate  property,  the  tax  must  be  paid  by  the 
owner  of  the  shares  of  stock,  but  we  suppose  that  this  can  be 
true  only  in  cases  where  provision  is  made  for  taxing  the  stock 
in  the  hands  of  the  stockholders.'"' 

§882  (736a).  Whether  boards  of  assessment  and  equaliza- 
tion have  judicial  powers. — Boards  having  power  to  assess  prop- 
erty and  equalize  values  for  purposes  of  taxation  are  generally 
not  regarded  as  judicial  officers,  in  the  strict  sense,  and,  hence, 
their  action  is  not  to  be  invalidated  on  the  sole  ground  that  the 
law  creating  the  board  invested  executive  officers  with  judicial 
powers  in  violation  of  the  constitutional  rule.  Thus,  a  statute 
making  specified  state  officers  members  of  the  state  tax  board, 
with  power  to  ascertain  the  valuation  of  intangible  property 
and  report  it  for  assessment  to  the  local  assessors,  was  held  not 
void  on  this  ground,  especially  since  the  board  was  not  given 
power  to  make  the  assessment.'^  In  Indiana,  the  board  of  equal- 
ization has  power  to  inspect  and  examine  the  books  of  taxpay- 
ers,^ and  its  powers  are  quasi  judicial,  so  that  its  judgment  is 
not  subject  to  collateral   attack." 


nell,  7  CI.  &  F.  572,  696;  Jones  v 
Smart,  1  T.  R.  44. 

6  Conwell  V.  Connersville,  IS  Tnd 
ISO;  King  v.  Madison,  17  Ind.  48 
See  Wright  v.  Southwestern  R.  Co. 
64  Ga.  783;  Georgia  R.  &c.  Co.  v. 
Wright,  124  Ga.  596,  S3  S.  E.  251. 

7  Missouri  &c.  R.  Co.  v.  Shannon 
(Tex.  Civ.  App.),  97  S.  W.  527 
See  also  State  v.  Thorne,  112  Wis 
81,  87  N.  W.  797.  And  compare 
Cleveland  &c.  R.  Co.  v.  Backus 
133  Ind.  513,  547,  33  N.  E.  421,  18 
L.  R.  A.  729;  Langenberg  v.  Deck- 
er, 131  Ind.  471,  31  N.  E.  190,  193, 
16  L.  R.  A.  108. 

8  Co-operative  &c.  Assn.  v.  State, 


156  Ind.  463,  60  N.  E.  146;  Satter- 
white  v.  State,  142  Ind.  1,  40  N.  E. 
654,  1087.  See  also  People  v.  Na- 
tional Bank,  123  Cal.  63,  55  Pac. 
685,  69  Am.  St.  32. 

» Senour  v.  Matchett,  140  Ind. 
636,  40  N.  E.  122;  Biggs  v.  Board, 
7  Ind.  App.  142,  34  N.  E.  500.  See 
also  Stanley  v.  Supervisors  of  .-M- 
bany,  121  U.  S.  535,  7  Sup.  Ct.  1234, 
30  L.  ed.  1000;  East  St.  Louis  &c. 
R.  Co.  V.  People,  119  111.  182,  10 
N.  E.  397.  But  see  as  to  its  lack 
of  power  under  the  Act  of  1881  to 
increase  assessment  of  railroad 
personal  property  as  made  and 
returned     by    township     assessors. 


S883 


RAILROADS 


274 


§883  {IZl).  Appropriate  method  of  assessing. — The  best 
method  of  taxin.q'  the  property  of  a  railroad  company  forming 
part  of  its  hne  and  used  in  the  operation  of  its  road  is  by  re- 
garding it  as  a  unit  and  assessing  the  property  as  an  entirety, 
since  anv  oilier  method  would  dissect  the  property  into  frag- 
mentary ])arts  and  tend  to  lead  to  confusion  and  injustice.'" 
Some  of  the  courts  hold  that  the  pro])erty  f"in  only  be  taxed 
as  an  entirety.^'  but  in  our  opinion  the  ]e:;islalure  is.  in  the 
absence  of  constitutional  provisions  prescribing  the  method  of 
assessing  the  property,  the  sole  judge  of  the  method  that  shall 
be  pursued.  The  power  of  the  legislature  is  so  broad  and  com- 
prehensive that  it  is  (lifticult  io  conceive  upon  what  ])rinciple  it 
can  be  correctly  held  that  the  only  method  that  it  can  provide 
is  that  of  assessing  the  property  as  an  entirety. ^-' 


Cleveland   &c.  R.   Co.  v.  Board,  19 
Ind.  App.  58,  49  N.  E.  51. 

^0  Detroit  &c.  R.  Co.  v.  Common 
Council,  125  Mich.  673,  85  N.  W. 
96,  84  Am.  St.  589.  597  (quoting 
text).  See  also  Adams  Express  Co. 
V.  Ohio  State  Auditor,  165  U.  S. 
194,  220,  17  Sup.  Ct.  305,  41  T..  ed. 
683;  Pullman's  Palace  Car  Co.  v. 
Pennsylvania,  141  U.  S.  18,  11  Sup. 
Ct.  876.  35  L.  cd.  613;  Western 
Union  Tel.  Co.  v.  Taggart,  141  Ind. 
281,  40  N.  E.  1051;  Cincinnati  &c. 
R.  Co.  V.  Commonwealth,  81  Ky. 
492;  State  v.  Canadian  Pac.  R.  Co., 
100  Elaine  202.  60  Atl.  901,  60  L. 
R.  A.  671n;  State  v.  Savage.  65 
Nebr.  714,  91  N.  W.  716:  State  v. 
Rack.  72  Nebr.  402,  100  N.  W.  952; 
Chicago  &c.  R.  Co.  v.  Richardson 
Co.,  72  Nebr.  482,  100  N.  W.  950; 
Louisville  &c.  R.  Co.  v.  Bate,  12 
Lea  (Tenn.)  581 ;  Chicago  &c.  R. 
Co.  V.  State,  128  Wis.  553,  108  N.W. 
557.  In  the  last  case  just  cited  it 
is  said:  "The  property  of  a  public- 
service  corporation  is  to  be  valued 
for  taxation  as  a  unit,  the  franchise 


element  and  tangible  elements, 
whether  in  land  or  movables,  being 
regarded  as  inseparable  parts  of 
one  thing  in  which  the  former  so 
far  predominates  as  to  stamp  all 
with  the  impress  of  personal  prop- 
ert}'."  See  also  Northern  Pac.  R. 
Co.  V.  State,  84  Wash.  570,  147 
Pac.  45,  Ann.  Cas.  1916E,  1166. 

^1  Applegate  v.  Ernst,  3  Bush 
(Ky.)  648,  96  Am.  Dec.  272.  See 
generally  Graham  v.  ls.lt.  Sterling 
Coal  Co.,  14  Bush  (Ky.)  425;  Rail- 
road School  Tax,  In  re,  78  Mo. 
596,  17  Am.  &  Eng.  R.  Cas.  491; 
Franklin  Count}'-  v.  Nashville  &c. 
Co.,  12  Lea  (Tenn.)  521,  17  Am. 
&  Eng.  R.  Cas.  445. 

12  There  are  many  cases  recog- 
nizing the  validity  of  assessments 
by  counties.  Huntington  v.  Cen- 
tral Pacific  &c.  Co.,  2  Savvy.  (U. 
S.)  503;  People  v.  Placerville  &c. 
Co.,  34  Cal.  656;  People  v.  Mc- 
Creey,  34  Cal.  432;  Sangamon  &c. 
Co.  V.  Morgan,  14  111.  163,  56  Am. 
Dec.  497;  State  v.  Illinois  Central 
R.  Co.,  27  III.  64.  79  Am.  Dec.  396: 


275 


TAXATION  <)P^  RAILROAD  PROPERTY 


§884 


§884  (738).  Methods  of  taxation. — The  lour  principal  meth- 
ods of  taxation  are,  (1)  on  the  cai)ital  stock.  (2)  on  the  corjx)- 
rate  property.  (3)  on  tlie  franchises,  (4)  on  the  business  done 
by  the  corporation.''  As  the  levying  of  taxes  and  the  mode  of 
assessment  are  matters  for  legislative  consideration  and  deter- 
mination,  the   legislature   may,   where   no   constitutional   provi- 


Wilson  V.  Weber,  96  111.  454,  5  Am. 
&  Eng.  R.  Cas.  112;  Mohawk  &c. 
Co.  V.  Clute,  4  Paige  (N.  Y.)  384; 
Albany  &c.  Co.  v.  Osborn,  12  Barb. 
(N.  Y.)  223;  Albany  &c.  Co.  v. 
Canaan.  16  Barb.  (X.  Y.)  244: 
Providence  &c.  Co.  v.  Wright,  2 
R.  I.  459;  Orange  &c.  Co.  v.  Alex- 
andria, 17  Grat.  (Va.)  176.  See 
generally  Alissouri  River  &c.  Co. 
V.  Morris,  7  Kans.  210;  Chicago 
&c.  Co.  V.  Davenport,  51  Iowa  451, 
1  N.  W.  720;  State  v.  Severance, 
55  Mo.  378;  Richmond  &c.  Co.  v. 
Alamance  County,  84  N.  Car.  504; 
The  Tax  Cases,  12  Gill  &  J.  (Mo.) 
117;  Chicago  &c.  R.  Co.  v.  Bab- 
cock,  204  U.  S.  585,  27  Sup.  Ct.  326, 
51  L.  ed.  636.  But  compare  Blom- 
quist  V.  Bannock  County,  25  Idaho 
284,  137  Pac.  174  (may  be  assessed 
as  a  whole  by  State  Board  of 
Equalization). 

1^  Tennessee  v.  Whitworth,  117 
U.  S.  129,  6  Sup.  Ct.  645.  29  L.  ed. 
830;  Louisville  &c.  Co.  v.  State,  8 
Heisk.  (Tenn.)  663,  795.  See  Cleve- 
land &c.  Co.  v.  Backus,  133  Ind. 
513,  33  N.  E.  421,  18  L.  R.  A.  729; 
State  V.  Hamilton,  5  Ind.  310;  King 
V.  Madison,  17  Ind.  48;  Whitney  v. 
Madison,  23  Ind.  331.  335.  There 
is  reason  for  saying  that  there  is  a 
fifth  method,  namel}'  a  tax  on  the 
profits  of  the  business,  but  we  have 
followed  the  usual  course  in 
naming    the    methods    of    taxation. 


See  as  to  "net  earnings"  rule  in 
New  York,  People  v.  State  Board, 
212  N.  Y.  472,  106  N.  E.  325;  Peo- 
ple V.  Tax  Comrs.,  203  N.  Y.  119, 
96  N.  E.  435;  People  v.  Tax  Comrs.. 
196  N.  Y.  39,  89  N.  E.  581;  People 
V.  Woodbury,  203  N.  Y.  231,  96 
N.  E.  420.  The  reason  given  for 
not  making  a  separate  division  of 
profits  of  the  business  is  that  it  is 
included  in  the  third  method  of 
tax  on  the  franchise,  but  the  rea- 
son is  hardly  satisfactory.  In  De- 
troit &c.  R.  Co.  v.  Common  Coun- 
cil, 125  Mich.  673,  85  N.  W.  96.  84 
Am.  St.  589,  it  is  held  that  the 
franchise  to  exist  as  a  corporation 
has  no  cash  value  within  the  mean- 
ing of  the  tax  law,  but  special  priv- 
ileges and  franchises  of  that  na- 
ture have,  especially  in  connection 
with  the  property  used  therewith. 
In  State  v.  Galveston  &c.  Ry.  Co., 
100  Tex.  153,  97  S.  W.  71.  a  tax  of  a 
certain  per  cent,  of  gross  receipts 
was  held  an  occupation  tax  and 
not  objectionable  as  double  taxa- 
tion although  the  franchise  was 
subject  to  an  ad  valorem  tax.  See 
also  Washington  County  v.  State, 
172  Ala.  242.  55  So.  623;  Hunt  v. 
Allen  County,  82  Kans.  842,  109 
Pac.  106.  But  see  Galveston  &c. 
R.  Co.  V.  Davidson  (Tex.  Civ. 
App.).  93  S.  W.  436;  and  see  also 
Central  Granaries  &c.  Co.  v.  Lan- 
caster Co..  77  Nebr.  311,  109  N.  W. 


§  8S5 


RAILROADS 


27G 


sioii  forbids  a  choice  of  methods,  select  the  method,  and  the 
method  selected  is  exclusive.  While  the  courts  may  declare 
invalid  a  statute  which  is  in  conflict  with  the  constitution,  they 
cannot  supervise  or  control  legislative  discretion,  nor  can  they 
dictate  the  policy  to  be  pursued.^* 

§885  (738a).  What  is  meant  by  "roadway"  in  revenue  laws. 
— In  states  wdiere  the  "roadway"  or  the  "right  of  way"  is  as- 
sessed by  a  state  assessing  board,  and  other  railroad  property 
is  assessed  by  local  assessing  officers  or  boards,  it  is  a  matter 
of  some  importance  to  know  wdiat  is  meant  by  this  term.  The 
decisions  on  the  question  are  in  hopeless  conflict,  for  the  term 


384,  where  it  was  held  that  a  tax 
on  the  average  capital  is  a  tax  on 
property  and  not  on  business,  and 
that,  where  real  estate  and  other 
tangible  property  was  taxed,  and 
grain  in  elevators  on  a  certain  day 
was  also  taxed  there  was  double 
taxation.  See  also  Dallas  Co.  v. 
Home  F.  Ins.  Co.,  97  Ark.  254,  133 
S.  W.  1113.  As  to  propriety  of 
using  mileage  basis,  see  Common- 
wealth V.  United  States  Exp.  Co., 
149  Ky.  755,  149  S.  W.  1037,  Ann. 
Cas.  1914B,  196.  and  cases  there 
reviewed.  And  see  as  to  taxation 
of  franchises  generally,  2  Thomp. 
Corp.  (2nd  ed.)  §§  2920-2942; 
White's  Supp.  §§  2920-2942.  Con- 
trolled mileage  within  and  with- 
out the  state,  and  not  merely  op- 
erated mileage,  is  what  must  be 
considered  under  the  Kentucky 
statute.  Louisville  &c.  R.  Co.  v. 
Greene,  244  U.  S.  522,  37  Sup.  Ct. 
683,  61  L.  ed.  1291,  Ann.  Cas.  1917E, 
97.  See  generally  as  to  the  valua- 
tion of  railroad  property  for  taxa- 
tion, the  elaborate  note  in  Ann. 
Cas.  1916E,   1180  et  seq. 

i-t  Mr.    Justice     Bradley    forcibly 


expressed  the  general  rule  in  Le- 
gal Tender  Cases,  12  Wall.  (U.  S.) 
457,  561,  20  L.  ed.  287.  "The  legis- 
lative department,"  said  that  able 
judge,  "being  the  nation  itself 
speaking  by  its  representatives,  has 
a  choice  of  methods  and  is  the 
master  of  its  own  discretion." 
State  V,  Haworth,  122  Ind.  462, 
467,  23  N,  E.  946,  7  L.  R.  A,  240; 
Carr  v.  State,  127  Ind.  204,  208,  26 
N.  E.  778,  11  L.  R.  A,  370n,  22  Am. 
St.  624n;  Dubuque  v.  Chicago  &c. 
Co.,  47  Iowa  196;  Davenport  v. 
Chicago  &c.  Co.,  38  Iowa  633;  Du- 
buque V.  Illinois  &c.  Co.,  39  Iowa 
56.  In  State  v.  Kolsem.  130  Ind. 
434,  440,  29  N.  E.  595,  14  L.  R.  A. 
566n,  it  was  said:  "Where  the  prin- 
cipal subject  belongs,  there  the  in- 
cidents belong.  Means,  methods 
and  the  like  belong  to  the  depart- 
ment that  is  invested  with  power 
over  the  general  subject.  It  is  for 
that  department  to  make  choice  of 
modes  and  means."  See  also  State 
V.  Savage,  65  Nebr.  714.  91  N.  W. 
716,  72,21  (citing  text);  Missouri  &c. 
Ry.  Co.  V.  Shannon  (Tex.  Civ. 
App.),  97  S.  W.  527. 


277 


TAXATION   OF   RAILROAD  PROPERTY 


§885 


"roadway"  is  used  in  the  same  connecli(jn,  and  yet  a  different 
construction  is  given  it,  in  the  decisions  of  both  Cahfornia  and 
North  Dakota.  In  the  former  state  the  term  is  strictly  limited 
lo  the  continuous  strij)  upon  which  the  railroad  is  constructed, 
and  excludes  tracts  of  land  used  for  cattle  yards,  switch  yards 
and  depot  purposes. ^'^  In  the  latter  state  it  is  broadly  held  that 
the  term  will  include  not  only  the  strip  of  land  upon  which  the 
main  line  is  located,  but  also  all  ground  necessary  for  the  con- 
struction of  side-tracks,  turnouts,  station  houses,  freight  houses, 
and  all  other  accommodations  reasonably  necessary  to  accom- 
plish the  objects  for  which  the  railroad  was  incorporated.^®  It 
is  thought  that  the  weight  of  authority  is  in  favor  giving  the 
more  enlarged  meaning  in  such  cases. ^^  In  line  with  this  view 
ihere  is  a  class  of  cases  which  hold  that  the  exemption  of  local 
taxation  covers  such  property,  and  only  such,  as  might  be  taken 
hy  condemnation  proceedings.^^  Under  either  theory  land  not 
used  as  part  of  the  roadway  or  right  of  way,  though  bought 
with  the  intent  to  use  it  for  that  purpose  when  necessary,  is 
not  a  part  of  the  roadbed,  and  should  be  assessed  by  the  local 
assessors. ^^  So  it  has  been  held  that  land  belonging  to  railroad 
companies  and  leased  for  commercial  purposes  will  not  be  re- 
garded as  "necessary  or  in  use  in  the  proper  operation"  of  the 


i""  San  Francisco  &c.  R.  Co.  v. 
Stockton,  149  Cal.  83,  84  Pac.  771. 
See  also  Santa  Clara  County  v. 
Southern  Pac.  R.  Co.,  118  U.  S. 
394,  6  Sup.  Ct.  1132,  30  L.  ed.  118; 
Grand  Trunk  Pac.  Ry.  Co.  v.  City 
of  Calgary,  55  Can.  Sup.  Ct.  103, 
Ann.   Cas.   1918D,  724. 

1^  Chicago  &c.  R.  Co.  v.  Cass 
Co.,  8  N.  Dak.  18,  76  N.  W.  239. 

1^  Chicago  &c.  R.  Co.  v.  People, 
98  111.  350:  Chicago  &c.  R.  Co.  v. 
People,  99  111.  464;  People  v.  Illi- 
nois Central  R.  Co.,  215  III.  177, 
74  N.  E.  116  (includes  bridges  and 
approaches);  Pfaff  v.  Terre  Haute 
&c.  R.   Co.,   108  Ind.   144,  9  N.   E. 


93;  Central  R.  Co.  of  N.  J.,  In  re. 
71  N.  J.  L.  475,  58  Atl.  1089.  Com- 
pare also  Northern  Pac.  R.  Co.  v. 
Brogan,  52  ^font.  461.  158  Pac.  820. 
See  generalh'  ante,  §  6. 

^8  State  V.  Hancock.  33  N.  J.  L. 
315;  Milwaukee  &c.  R.  Co.  v.  Mil- 
waukee, 34  Wis.  271. 

19  San  Francisco  &c.  R.  Co.  v. 
Stockton,  149  Cal.  83,  84  Pac.  771; 
Red  Willow  Co.  v.  Chicago  &c.  R. 
Co.,  26  Nebr.  660,  42  N.  W.  879; 
Republican  Valley  &c.  R.  Co.  v. 
Chase  Co.,  33  Nebr.  759,  51  N.  W. 
132.  See  also  State  v.  St.  Louis 
&c.  R.  Co.,  117  Mo.  1.  22  S.  W.  910. 


§  886  RAILROADS  278 

road,  and  is  to  be  assessed  by  the  local  officers.^"  But  the  Illinois 
courts  Ikuc  held  that  land  adjoining'  the  ri^ht  of  way  of  a  rail- 
road and  used  as  a  reser\()ir  from  which  it  (»l)taiiis  water  for  its 
locomotives,  and  other  purposes  connected  with  the  operation 
of  the  road,  is  assessable  as  railroad  track  by  the  State  Board 
of  Equalization,  and  not  by  local  assessors.-^ 

§886   (738b).     Railroad    bridges    and    bridge    companies. — A 

bridge  owned  by  a  railroad  company  and  used  as  part  of  its 
roadbed  and  tracks  is  assessable  as  part  of  the  railroad  itsell 
and  not  as  a  separate  structure,  and  this  has  l)cen  so  held  where 
the  bridge  was  used  as  a  toll  bridge. 2-  Another  case  is  authority 
to  the  effect  that  a  bridge  owned  by  a  corporation  organized 
under  the  Railroad  Incorporation  Act,  whose  business  it  was 
to  build  and  own  a  bridge  used  solely  for  railroad  purposes,  and 
which  has  always  reported  the  property  for  taxation  as  railroad 
property,  is  regarded  as  a  railroad,  and  is  taxable  as  such.-^  But 
£  bridge  owned  by  a  bridge  company,  although  used  exclusively 
for  railroad  purposes,  and  leased  forever  to  a  railroad  company, 
but  subject  to  determination  of  the  lease  for  default  of  the  lessee 
in  regard  to  its  terms  and  conditions,  has  been  held  not  to  be 
railroad  property  which  could  be  assessed  as  such  along  with 
the  railroad  track  by  the  Illinois  State  Board  of  Equalization 
instead  of  the  local  authorities.-* 


20  Grand    Rapids    &c.    R.    Co.    v.  son    &c.    R.    Co.,    225    111.    593.    80 
Grand    Rapids,    137   Mich.   587,    100  N.  E.  272. 

N.     W.     1012.       See     also     Adams  2.3  Sault  Ste.  Marie  Bridge  Co.  v. 

County  V.  Kansas  City  &c.  R.  Co..  I'r.wers,  138  Fed.  262. 

71  Nebr.  549.  99  N.  W.  245:  Central  ,,  Chicago  &c.  R.  Co.  v.  People. 

R.   Co.,   Tn  re,  72  N.  J.  86,   59   Atl.  ^ 53    jjj    ^q^^  33   j^_   j-     ^^y^^  39   L. 

1062;  note  in   L.  R.   A.  1916E,  407.  ^    j^    ^9.   ^^^^   ^^^  ^^^^   ^^   ^^  ^^_ 

21  Chicago  &c.   R.   Co.  v.   People.  sessment  of  bridges  between  states 
218  Til.  463,  75  N.  E.  1021.  and  the  like;  also  HendersonBridge 

--  State  V.  Louisiana   &c.   R.   Co.,  Co.  v.  Commonwealth,  99  Ky.  623, 

196  Mo.  523,  94  S.  W.  279;  State  v.  31   S.  W.  486,  29   L.  R.   A.  73.  af- 

l.ouisiana  &c.  R.  Co.,  215  Mo.  479,  firmed  in  Henderson  Bridge  Co.  v. 

114  S.  W.  956.     See  also  Board  v.  Kentucky,    166   U.    S.    150,    17    Sup. 

Louisville    &c.    R.    Co.,   33    Ky.    L.  Ct.  532,  41  L.  ed.  953;  Southern  R. 

78.  109  S.  W.  303;  People  v.  Atchi-  Co.    v.    Mitchell,    139    Ala.    629,    37 


279 


'I'AXATIOX  OK   IJMLK'oM)  CU*  )1M;RTY 


§887 


§887    (739).     Statutory    method    of    assessment    exclusive. — 

^\'hc're  tlu'  statute  ])rcscn'l)cs  a  specific  nieth.xl  for  assessin.y  or 
valuing;  the  ])roi)erty  of  railroad  companies  the  method  pre- 
scribed excludes  all  others  and  must  1)0  pursued.-''  The  legisla- 
tive method  is  always  exclusive.  The  rule  is  settled  that  where 
the  legislature  classifies  property  and  jirescnbes  the  mode  in 
which  it  shall  be  taxed,  neither  the  taxing  officers  nor  the  courts 
can  ]irescribc  any  other. 

§888  (740).  Legislative  discretion — Classification. — The  leg- 
islature mav.  in  its  discretion,  provide  different  methods  for 
assessing  corporations  of  diiTerent  classes,  and  a  statute  cannot 
be  successfully  assailed  upon  the  ground  that  it  prescribes  a 
method  of  assessing  railroad  corporations  different  from  that 
prescribed    for    assessing    other    corporations.-^      Classifications 


So.  85;  Commonwealth  v.  CovitiL''- 
ton  &c.  Bridge  Co..  114  Ky.  343. 
70  S.  W.  849.  As  to  taxation  of 
bridges  and  tunnels  under  New 
York  law,  see  People  v.  Purdy,  149 
N.  Y.  S.  315;  People  v.  Purdy,  85 
^lisc.  581,  148  N.  Y.  S.  1074. 

2'5  Louisville  &c.  Co.  v.  Warren 
County,  5  Bush  (Ky.)  243;  State  v. 
Savage,  65  Nebr.  714,  91  N.  W.  716. 
733  (citing  text).  See  also  Chicago 
&o.  R.  Co.  v.  People,  213  111.  458, 
72  N.  E.  1105;  Ohio  River  &c.  R. 
Co.  V.  Detty,  203  Fed.  537. 

-^  Cincinnati  &c.  Co.  v.  Ken- 
tucky, 115  U.  S.  321,  6  Sup.  Ct.  57. 
29  L.  ed.  414;  Kentucky  Railroad 
Tax  Cases,  92  U.  S.  663;  Missouri 
v.  Lewis,  101  U.  S.  22,  25  L.  ed. 
989;  Cummings  v.  Merchants'  &c. 
Bank,  101  U.  S.  160,  25  L.  ed.  905; 
^lissouri  Pacific  R.  Co.  v.  Mackej'. 
127  U.  S.  205,  6  Sup.  Ct.  1161.  32 
L.  ed.  107,  33  Am.  &  Eng.  R.  Cas. 
390;  Minneapolis  &c.  R.  Co.  v. 
Beckwith,  129  U.  S.  26,  9  Sup.  Ct. 
207,  32  L.  ed.  585;  Home  Ins.  Co. 


V.  New  York,  134  U.  S.  594,  10  Sup. 
Ct.  593,  33  L.  ed.  1025;  Bell  Gap 
R.  Co.  V.  Pennsylvania,  134  U.  S. 
232,  10  Sup.  Ct.  533,  33  L.  ed.  892; 
Pacific  Express  Co.  v.  Seibert,  142 
U.  S.  339.  12  Sup.  Ct.  250.  35  L.  ed. 
1035;  Chamberlain  v.  Walter,  60 
Fed.  788;  overruling  Western  Union 
&c.  Co.  V.  Poe,  61  Fed.  449;  West- 
ern Union  &c.  Co.  v.  Poe,  64  Fed. 
9;  Pulaski  County  &c.  Cases,  49 
Ark.  518,  6  S.  W.  1;  St.  Louis  &c. 
Co.  V.  Worthen,  52  Ark.  529,  13 
S.  W.  254,  7  L.  R.  A.  374;  San 
Francisco  &c.  Co.  v.  State  Board, 
60  Cal.  12;  Central  Iowa  Co.  v. 
Board  &c.,  67  Iowa  199.  25  N.  W. 
128;  State  v.  Jones,  51  Ohio  St. 
492,  37  N.  E.  945;  Ancona  v. 
Becker,  14  Pa.  Co.  Ct.  73.  See  also 
Florida  Cent.  &c.  R.  Co.  v.  Rey- 
nolds, 183  U.  S.  471,  22  Sup.  Ct. 
176,  46  L.  ed.  283;  Kidd  v.  Ala- 
bama, 188  U.  S.  730,  23  Sup.  Ct. 
401,  47  L.  ed.  669;  Peacock  v. 
Pratt,  121  Fed.  772;  Louisville  &c. 
P.  Co.  V.  State,  25  Ind.  177,  87  Am. 


§889 


RAILROADS 


280 


may  be  made  and  railroad  corporations  may  constitute  a  dis- 
tinct and  separate  class  ol  corporations,  and  a  mode  of  assessing 
and  valuing  their  property  may  be  prescribed  different  from 
that  prescribed  for  taxing  and  valuing  the  property  of  other 
corporations.  So,  it  has  been  held  that  the  difference  between 
an  ordinary  commercial  railroad  and  a  street  railroad  may  war- 
rant diversity  in  the  mode  of  taxation.-''  The  legislative  dis- 
cretion is  broad,  and  no  matter  how  unjustly  or  capriciously  it 
may  be  exercised  the  courts  are  powerless  to  interfere,  but  they 
may  interfere  in  cases  where  the  legislature  transcends  its  con- 
stitutional powers.  The  question  is  power  or  no  power ;  if 
there  be  power  the  judiciary  can  not  alter,  amend  or  annul  the 
statute ;  if  there  be  no  power  the  courts  may  annul  the  statute 
by  adjudging  it  to  be  void. 

§889  (741).  Equality  and  uniformity. — AVhere  the  constitu- 
tion requires  that  taxes  shall  be  equal  and  uniform  the  mode 
of  assessing  railroad  companies  must  be  uniform,  that  is,  one 
company  of  the  same  class  and  character  cannot  be  assessed 
in  one  method  and  another  company  of  precisely  the  same  kind 
and  character  in  a  materially  different  method.-^     Corporations 


Dec.  358;  PittsburRh  &c.  R.  Co.  v. 
Backus,  133  Ind.  625,  33  N.  E.  432; 
Chicago  &c.  R.  Co.  v.  State,  128 
Wis.  553,  108  N.  W.  557. 

27  Savannah  &c.  R.  Co.  v.  Savan- 
nah, 198  U.  S.  392,  25  Sup.  Ct.  690, 
49  L.  ed.  1097  (a  privilege  tax  or 
tax  on  business) ;  New  York  v.  Tax 
Commissioners,  199  U.  S.  1,  25  Sup. 
Ct.  705,  50  L.  ed.  65.  See  also 
Chamberlain  v.  Walter,  60  Fed. 
788:  American  Sugar  &c.  Co.  v. 
New  Orleans,  181  U.  S.  277,  21 
Sup.  Ct.  646,  45  L.  ed.  859. 

28  State  Railroad  Tax  Cases,  92 
U.  S.  575,  23  L.  ed.  663;  State  v. 
I.athrop,  10  La.  Ann.  398;  New 
Orleans  v.  Kaufman,  29  La.  Ann. 
283,  29  Am.  Rep.  328;  Worth  v. 
Wilmincton    &c.    Co.,    89    N.    Car. 


291,  45  Am.  Rep.  679;  Pittsburgh 
&c.  R.  Co.  V.  State,  49  Ohio  St. 
189,  16  L.  R.  A.  380;  Durach's 
Appeal,  62  Pa.  St.  491;  Shenandoah 
Val.  &c.  R.  Co.  V.  Clarke  Co. 
Suprs.,  78  Va.  269;  Kneeland  v. 
Milwaukee,  15  Wis.  454.  See  also 
Greene  v.  Louisville  &c.  R.  Co.. 
244  U.  S.  499,  Z1  Sup.  Ct.  611,  61 
L.  ed.  1280,  Ann.  Cas.  1917E,  88, 
and  note.  A  statute  providing  for 
raising  a  fund  for  the  salaries  and 
current  expenses  of  a  state  railroad 
commission  by  taxing  the  property 
of  railroad  companies  only,  violates 
the  rule  as  to  uniformity  and  equal- 
ity. Atchison  &c.  R.  Co.  v.  Howe, 
32  Kans.  1Z1 ,  5  Pac.  397.  Rut  see 
Chicago  &c.  Co.  v.  Siders,  88  111. 
320. 


J81 


TAXATION  OF  RAILROAD  PROPERTY 


§889 


of  different  classes  may  be  assessed  in  different  methods,  but 
corporations  of  the  same  chiss  can  not  be  assessed  in  different 
methods.  The  general  rule  is  as  we  have  stated  it,  but  it  is 
possible  that  in  very  rare  instances  there  may  be  some  peculiar 
elements  that  will  carry  the  case  out  of  the  operation  of  the 
general  rule.  Where  the  constitution  of  the  state  requires 
equality  and  uniformity  of  taxation  the  tax  upon  railroad  prop- 
erty cannot  rightfully  be  materially  or  essentially  greater  than 
that  imposed  upon  other  property,  although,  as  we  have  seen, 
the  mode  of  assessment  may  be  dift"erent.  This  is  so  independ- 
ently of  the  influence  of  the  federal  constitution.-^  But  absolute 
uniformity  in  every  detail  is  usually  unattainable,  and  uniform- 
ity of  burden  or  result,  rather  than  uniformity  of  method  in 
c',11  respects,  is  what  is  required. ^°     The  rule  as  to  uniformity 


2y  Board  of  Assessment  v.  Ala- 
bama &c.  R.  Co.,  59  Ala.  551;  Chi- 
cago &c.  Co.  V.  Board  &c.,  44  111. 
244;  Board  &c.  v.  Chicago  &c.  R. 
Co.,  44  III.  229;  Cumberland  &c. 
Co.  V.  Portland,  Zl  Maine  444; 
State  Treasurer  v.  Auditor  &c.,  46 
^lich.  224,  13  Am.  &  Eng,  Cas.  296; 
Teagan  Transp.  Co.  v.  Board  of 
Assessors,  139  Mich.  1,  102  N.  W. 
273,  69  L.  R.  A.  431,  and  note; 
Schmidt  v.  Galveston  &c.  Co.  (Tex. 
Civ.  App.),  24  S.  W.  547;  Missouri 
&c.  R.  Co.  V.  Kone  (Tex.  Civ. 
App.),  122  S.  W.  424.  See,  how- 
ever, Williams  v.  Rees,  9  Biss.  (U. 
S.)  405.  See,  however,  Dubuque  v. 
Illinois  Cent.  Co.,  39  Iowa  56; 
Francis  v.  Atchison  &c.  Co.,  19 
Kans.  303;  Mississippi  Mills  v. 
Cook,  56  Miss.  40.  See  also  State 
V.  Canada  Cattle  Car  Co.,  85  Minn. 
457,  89  N.  W.  66;  State  v.  Chicago 
&c.  R.  Co.,  195  Mo.  228,  93  S.  W. 
784;  Jones  v.  Board  of  Comrs.  of 
Stokes  Co.,  143  N.  Car.  59,  55  S.  E. 
427;  Michigan  Cent.  R.  Co.  v.  Pow- 
ers, 201  U.  S.  245,  26  Sup.  Ct.  459, 


50  L.  ed.  744.  See  also  Boston  &c. 
R.  Co.  V.  State,  75  N.  H.  513,  31 
L.  R.  A.  (N.  S.)  539,  17  Atl.  996: 
Mineral  R.  &c.  Co.  v.  Northumber- 
land Co.  Comrs.,  229  Pa.  St.  436, 
78  Atl.  991;  Spokane  &c.  R.  Co.  v. 
Spokane  Co.,  82  Wash.  24,  143  Pac. 
307. 

""Kentucky  R.  Tax  Cases,  115 
U.  S.  ZZl,  6  Sup.  Ct.  57,  29  L.  ed. 
414;  Adams.  Express  Co.  v.  Ohio 
State  Auditor,  165  U.  S.  194,  17 
Sup.  Ct.  305,  41  L.  ed.  683;  Adams 
Express  Co.  v.  Ohio  State  Auditor, 
166  U.  S.  185,  17  Sup.  Ct.  604,  41 
L,  ed.  965;  Louisville  &c.  R.  Co. 
V.  State,  25  Ind.  177,  87  Am.  Dec. 
358;  Pittsburgh  &c.  R.  Co.  v. 
Backus,  133  Ind.  625,  ZZ  N.  E.  432: 
Central  Iowa  R.  Co.  v.  Board  of 
Supervisors,  Q  Iowa  199,  25  N.  W. 
128:  Gulf  R.  v.  Morris,  7  Kans. 
210;  Applegate  &c.  v.  Ernst,  3 
Bush  (Ky.)  648,  96  Am.  Dec.  272; 
State  &c.  V.  Severance,  55  Mo.  378: 
State  &c.  V.  Aitken,  62  Nebr.  428. 
87  N.  W.  153;  State  v.  Back,  11 
Nebr.  402,  100  N.  W.  952,  69  L.  R. 


5<  890  KAiLHoADS  282 

has  l)een  held  not  Niolated  \)y  the  assessment  of  raih'oads 
extending  into  unorganized  territory,  tliough  otlu-r  property 
therein  escapes  taxation  l>y  reason  of  the  want  of  a  county 
government."' 

§890  (741a).  Equality  and  uniformity — Double  taxation. — 
On  this  sul)ject  it  has  I)ccn  said  l)y  one  able  coiu't :  "The  general 
policy  of  the  law  is  to  avoid  duplicate  taxation.  No  one  subject 
of  taxation  ought  to  be  required  to  contribute  more  than  once 
to  the  same  jnil)lic  Inirden.  while  other  subjects  of  taxation, 
belonging  to  the  same  class,  are  required  to  contribute  but  once. 
In  the  exposition  of  any  tax  law,  therefore,  a  construction  lead- 
ing to  any  such  result  should  be  avoided,  unless  the  cogency  of 
some  express  provision  or  unavoidable  implication  of  the  stat- 
utes compels  its  adoption."^-  Double  taxation  is  not  favored  and 
is  never  presumed.'*'''  In  one  case  it  was  held  that  double  taxa- 
tion was  imposed  where  a  tax  was  levied  against  a  railroad 
company  ui)on  all  its  property  and  a  tax  was  also  levied  upon 
the  value  of  the  shares  in  the  hands  of  the  stockholders.  The 
court  regarded  it  as  clear  that  the  elements  which  made  up  the 

A.  447;  Boston  &c.  R.  Co.  v.  State,  Billings  v.  United  States,  232  U.  S. 

60  N.  H.  87;  Boston  &c.  R.  v.  State.  261,  34  Sup.  Ct.  421,  58  L.  ed.  596; 

63    N.    H.    571,    4    Atl.    571;    State  People  v.  Illinois  Cent.  R.  Co.,  273 

Board  &c.  v.  Railroad  Co.,  48  N.J.  111.  220.   112  N.   E.  700:   note  in  60 

L.     146,    4    Atl.     578;    Wagner    v.  L.  R.  A.  324. 

Loomis,  37  Ohio  St.  571;  State  &c.  si  Francis    v.     Railroad     Co.,     19 

V.  Jones,  Auditor,  51  Ohio  St.  492.  Kans.    303.      And    privilege    taxes 

37  N.   E.   945;    Franklin   County  v.  have    been   held    not   to    be    within 

Nashville   &c.    R.,    12   Lea    (Tenn.)  the   rule  requiring   uniformity.     St. 

521;  Chattanooga  v.  Railway,  7  Lea  Louis    &c.    Ry.    Co.    v.    State,    106 

(Tenn.)    561;    Dayton    v.    Coal    &  Ark.  321,  152  S.  VV.  110.     See  also 

Iron    Co.,  99  Tenn.   578.   42   S.  W.  note  in  60  L.  R.  A.  333. 

444;      Baltimore     &c.     R.     Co.     v,  32  RJce    Co.    v.    Hank,    23    Minn. 

Koontz,    77    Va.    698;    Shenandoah  280. 

Val.    R.    Co.   v.    Clark    Co.,   78   Va.  •-.3  Tennessee    v.    Whitworth,    117 

269;   Commonwealth  v.   Brown,  91  U.  S.  137,  6  Sup.  Ct.  645,  29  L.  ed. 

Va.  762,  21   S.  E.  357,  28  L.  R.  A.  832;  Georgia  &c.  R.  Co.  v.  Wright, 

110;     Pacific     National     Bank     v.  125   Ga.  589,  54  S.  E.  52;   State  v. 

Pierce    County,    20    Wash.    675,    56  Louisiana  &c.  R.  Co.,  196  Mo.  523, 

Pac.   936;    Chicago    &c.    R.    Co.    v.  94  S.  W.  279. 
State,  128  Wis.  553,  108  X.  W.  557; 


283 


TAXATION  OF  KAILROAD  PROI'KUTY 


§891 


value  of  the  i)ropcrty  of  the  railroad  company  and  those  which 
made  the  value  of  the  shares  of  the  stockholders  were  one  and 
the  same  thing,  and  that  the  taxation  of  both  amounted  to  a 
plain  \i()lation  of  the  rule.^* 

§891  (742).  Duties  of  corporations — Rights  of  stockhold- 
ers.— \\'here  the  tax  is  laid  upon  the  cori)oration  the  corporate 
officers  must  make  the  required  returns  and  pay  the  taxes.  The 
tax  in  such  a  case  is  laid  upon  the  legal  entity  and  must  be 
paid  out  of  the  corporate  revenues.  If  the  tax  is  unauthorized 
and  not  enforceable  the  resistance  to  its  enforcement  is  properly 
made  by  the  corporation  and  not  its  members.  Where  there 
are  errors  or  irregularities  prejudicial  to  the  interests  of  the 
corporation  it  is  incumbent  upon  the  corporate  officers  to  take 
measures  to  secure  the  proper  correction  or  appropriate  relief. 


^*  Georgia  &c.  R.  Co.  v.  Wright, 
125  Ga.  589,  54  S.  E.  52.  See  also 
Dallas  Co.  v.  Home  Fire  Ins.  Co., 
97  Ark.  254,  133  S.  W.  1113;  East 
T.ivermore  v.  Livermore  &c.  Co., 
103  Maine  418,  69  Atl.  306,  15  L.  R. 
A.  (N.  S.)  952;  Stroh  v.  Detroit, 
131  ^lich.  109,  90  N.  W.  1029;  State 
V.  Hannibal  &c.  R.  Co.,  11  Mo.  268; 
Central  Granaries  &c.  Co.  v.  Lan- 
caster County,  n  Nebr.  311,  109 
N.  W.  384;  Commonwealth  v. 
American  &c.  Co.,  2  Dauph.  Co. 
Rep.  (Pa.)  212.  But  compare 
Washington  County  v.  State,  172 
Ala.  242,  55  So.  623;  Durham 
County  V.  Blackwell  Co..  116  N. 
Car.  441,  21  S.  E.  423;  Pullen  v. 
Corporation  Commission,  152  N. 
Car.  548.  68  S.  E.  155;  Shelby 
County  V.  Union  &  Planters'  Bank. 
161  U.  S.  149,  16  Sup.  Ct.  558.  40 
L.  ed.  650;  Owensboro  Nat.  Bank 
V.  Owensboro,  173  U.  S.  664,  19 
Sup.  Ct.  537,  43  L.  ed.  850;  Porter 
V.  Rockford  &c.  R.  Co.,  16  111.  561. 
Most  of  the  conflicting  authorities 


upon  this  question  are  reviewed  in 
note  in  58  L.  R.  A.  589,  et  seq. 
Chicago  &c.  R.  Co.  v.  Siders,  88 
111.  320;  Greenleaf  v.  Board  of  Re- 
view, 184  111.  226,  56  N.  E.  295,  75 
.Vm.  St.  168;  Wilmington  &c.  R. 
Co.  V.  Brunswick  County,  72  N. 
Car.  10:  South  Nashville  St.  R.  Co. 
V.  Morrow,  87  Tenn.  406,  11  S.  W. 
348,  2  L.  R.  A.  853;  Commonwealth 
V.  Charlottesville  &c.  Co.,  90  Va. 
790,  20  S.  E.  364,  44  Am.  St.  950. 
A  railroad  statute  providing  for 
local  tax  on  intangible  assets  in 
addition  to  ad  valorem  tax  on  in- 
tangible properties  has  been  held 
not  void  as  providing  double  taxa- 
tion. Baker  v.  Druesdow  (Tex, 
Civ.  App.),  197  S.  W.  1043.  But 
where  land  for  side  tracks  is  taxed 
by  local  authorities  after  being 
rightly  returned  and  assessed  by 
the  tax  commission,  the  company 
may  enjoin  collection  of  the  local 
tax.  Atchison  &c.  R.  Co.  v.  Board. 
101   Kans.  618,  168  Pac.  687. 


§  892  RAILROADS  284 

Tlie  shareholders,  however,  have  an  interest  in  preventins^'  the 
enforcement  of  iliej^al  taxes  against  the  corporation  and  in  hav- 
ing errors  correcterl.  rincl  this  enables  them  to  invoke  judicial 
assistance  in  tin-  e\rnt  that  the  corporate  officers  refuse  to 
])erforni  their  duty.'''  To  entitle  a  stockholder  to  relief  he  must 
show,  in  addition  to  the  other  essential  facts,  that  the  corporate 
officers  have  been  guilty  of  fraud,  or,  upon  proper  request,  have 
refused  to  take  proper  stei)s  to  protect  the  corporate  interests. 

§892  (743).  Failure  of  the  corporation  to  make  return — 
Effect  on  stockholder. — Corporations  may  be  made  the  instru- 
mentalities for  collecting  from  the  stockholders  the  tax,  or  the 
tax  may  be  laid  directly  on  the  shares  of  stock  in  the  hands 
of  the  shareholders,  or  it  may  be  laid  upon  the  corporation.^® 
\Vhere  the  tax  is  laid  on  the  shares  of  stock  in  the  hands  of  the 
stockholders  it  cannot  be  accurately  said  that  the  tax  is  laid  on 
the  corporation,  for,  where  the  tax  is  placed  upon  the  stock  in 
the  hands  of  the  shareholders  the  tax  is  really  laid  upon  indi- 
vidual and  not  upon  corporate  property.  If  the  tax  is  laid  on 
the  corporation,  and  not  on  the  members,  the  breach  of  duty  in 
failing  to  make  returns  is  that  of  the  corporation,  and  the  mem- 
bers cannot  be  in  fault  for  failing  or  refusing  to  return  the 
property   for    taxation.      The    corporation    may,    if    guilty    of   a 

"^Bailey   v.    Atlantic    &c.    Co.,    3  T..  R.  A.  629n;   Lenawee  &c.  Bank 

Dill.    (U.    S.)    22;    Parmley    v.    St.  v.  Adrian,  66  Mich.  273;  Davenport 

Louis   &c.   R.   Co.,   3   Dill.   (U.  S.)  v.  Dows,  18  Wall.   (U.  S.)  626,  21 

13;  Greenwood  v.  Freight  Co.,  105  L.   ed.  938.     The  corporation   is   a 

U.  S.  13,  26  L.  ed.  961 ;  Davenport  necessary  party  to  such  a  suit,  and 

V.  Dows,  18  Wall.   (U.  S.)   626,  21  the  suit  should  be  brought  in  be- 

L.  ed.  938;  Dodge  v.  Woolsey,  18  half  of  all  the  stockholders. 

How.    (U.   S.)    331,   15  L.   ed.  401;  se  See  United  States  v.  Baltimore 

Foote  V.  Linck,  5  McLean  (U.  S.)  &c.   R.   Co.,   17  Wall.   (U.   S.)   322, 

616;    Paine   v.   Wright,   6   McLean  21   L.  ed.  597;  South  Nashville  St. 

(U.  S.)   395;    Piqua   State    Bank  v.  R.    Co.   v.    Morrow,   87   Tenn.   406, 

Knoop,    16    How.    (U.    S.)    369,    14  US.  W.  348,  2  L.  R.  A.  853;   St. 

L.    ed.    977;    Wilmington    Railroad  Albans  v.  National  Car  Co.,  57  Vt. 

V.   Reid,   13  Wall.   (U.   S.)   264,   20  68;  note  to  State  Board  of  Equali- 

L.  ed.  568;  Louisville  v.  Louisville  nation   v.    People,    191    111.   528,    58 

&c.,  90  Ky.   409,   14   S.  W.  408,  9  L.  R.  A.  513. 


285 


TAXATION  OP  RAILROAD  PROPERTY 


§893 


culpal)Ie  breach  of  duty,  l)e  liable  to  such  penalties  as  may  be 
[irovided,  but  tht  stockholder  cannot  be.''' 

§893  (743a).  Situs  of  stock  of  nonresident  corporation  owned 
by  domestic  corporation. — Under  a  provision  in  a  tax  law  re- 
quiring the  assessment  of  property  "located  in  each  county," 
the  Supreme  Court  of  Georgia  has  held  that  stock  in  a  non- 
resident corporation  owned  by  a  domestic  radroad  company  is 
located,  within  the  meaning  of  the  statute,  in  the  county  and 
city  where  the  principal  office  of  the  corporation  owning  the 
stock  is  located.''^  This  seems  to  be  in  accord  with  the  general 
rule  that  shares  of  stock  are  taxable  at  the  domicile  of  the 
owner."'" 

§  894  (743b).  Situs  of  rolling  stock. — Where  there  is  no  stat- 
ute to  the  contrary,  rolling  stock  is  usuallv  taxable  at  the  head 


37  Whitaker  v.  Brooks,  90  Ky.  68, 
13  S.  W.  355;  Gillespie  v.  Gaston, 
67  Tex.  599,  4  S.  W.  248.  In  the 
first  of  the  cases  cited  it  was  said: 
"It  seems  to  us  it  is  a  sufficient 
answer  by  the  stockholder  when 
called  upon  to  assess  his  stock  to 
say  the  law  requires  the  corpora- 
tion to  assess  its  corporate  prop- 
erty and  declares  that  the  stock  of 
the  shareholder  shall  be  exempt. 
It  matters  not  to  him  whether  the 
corporation  has  done  so  or  not. 
If  not,  it  should  be  made  to  do  so. 
The  grant  of  exemption  to  the 
stockholder  has  not  been  made  to 
depend  upon  this  being  done.  If 
it  can  not  be  done  under  existing 
law,  then  resort  must  be  had  to 
additional  legislation,  instead  of  a 
court  attempting  to  annul  a  plain 
legislative  grant  of  exemption  to 
one  because  another  has  failed  to 
perform  what  is  perhaps  a  legal 
duty.  If  the  statute  declares  with- 
out conditions  (as  it  does)  that  the 
corporation,    and    not    the     stock- 


holder, shall  answer  for  the  tax, 
then  it  is  immaterial  to  him  in  the 
present  condition  of  the  law 
whether  the  corporation  has  or  has 
not  listed  its  property  and  paid  the 
tax.  He  need  only  show  that  the 
law  places  the  burden  upon  the 
corporation."  See  State  v.  Chicago 
&c.  R.  Co.,  128  Wis.  449,  108  N.  W. 
594;  Ridpath  v.  Spokane  Co.,  23 
Wash.  436,  63  Pac.  261. 

38  Green  Co.  v.  Wright,  126  Ga. 
504,  54  S.  E.  951.  See  also  Wright 
v.. Louisville  &c.  R.  Co.,  195  U.  S. 
219,  25  Sup.  Ct.  16,  49  L.  ed.  167. 

39  See  State  v.  Kidd,  125  Ala.  413. 
28  So.  480,  affirmed  in  Kidd  v.  Ala- 
bama, 188  U.  S.  730,  23  Sup.  Ct. 
401,  47  L.  ed.  669;  Hawley  v.  Mai- 
den, 232  U.  S.  1,  34  Sup.  Ct.  201, 
58  L.  ed.  477;  Greenleaf  v.  Board 
of  Review,  184  111.  226,  56  N.  E. 
295,  75  Am.  St.  168;  note  to  Buck 
V.  Miller,  147  Ind.  586,  45  N.  E. 
647,  47  N.  E.  8,  37  L.  R.  A.  384. 
62  Am.  St.  458;  and  note  in  L.  R. 
A.  1915C,  942. 


i;  S9o 


H  All.HO.VDS 


286 


or  home  office  of  the  company.^"  lUU  it  has  been  held  that  if 
the  charter  does  not  fix  any  such  phicc  the  domicile  for  taxing 
purposes  will  be  held  to  be  where  the  by-laws  require  the  stock- 
holders to  meet,"  and  in  another  case  it  \\'as  held  that  the 
personal  ])r()pert}'  was  taxable  at  the  place  where  it  was  used 
and  the  business  done.'-  S(j.  it  has  been  held  that  the  lejj^isla- 
turc  may  provulc,  in  a  proper  case,  for  taxing"  the  rolling  stock 
at  s(jme  place  or  places  where  it  is  used  other  than  the  head 
office  of  the  company.*^  Questions  as  to  the  taxation  of  prop- 
ertv  in  more  than  one  state,  as  to  taxation  of  property  habitually 
used  elsewhere,  and  as  to  the  effect  of  the  h\'deral  Constitution, 
are  considered   in  another  chapter.''^ 

§895  (744).  Discrimination. — Where  the  constitution  of  the 
state  requires  equality  and  uniformity  there  can  not  be  a  mate- 
rial and  unjust  discrimination  against  railroad  ]:)roperty.*"'     This 


40  Baltimore  &c.  R.  Co.  v.  Allen, 
22  Fed.  376;  Sangamon  &c.  R.  Co. 
V.  Morgan  County,  14  111.  163,  56 
Am.  Dec.  497;  Commonwealth  v. 
Chesapeake  &c.  R.  Co..  25  Ky.  L. 
1126,  77  S  W.  186:  Appeal  Tax 
Court  V.  Northern  &c.  R.  Co.,  50 
Md.  417;  Philadelphia  &c.  R.  Co. 
V.  Appeal  Tax  Court,  50  Md.  397; 
Detroit  v.  Wayne  Circuit  Judge, 
127  Mich.  604,  86  N.  W.  1032. 

4^  Grundy  County  v.  Tennessee 
&c.  Co.,  94  Tenn.  295,  29  S.  W.  116. 

*-  Atlantic  &c.  R.  C^.  v.  Lesueur, 
2  Ariz.  428,  19  Pac.  157,  1  L.  R.  A. 
244.  And  cars  of  a  foreign  corpo- 
ration having  no  place  of  business 
in  the  state  may  be  taxed  under 
the  New  Hampshire  law  when  op- 
erated by  such  company  in  that 
state.  Vera  Chemical  Co.  v.  State, 
78  N.  H.  473,  102  Atl.  463.  But 
where  a  railroad  company  operated 
trains  over  a  leased  track  in  inter- 
state commerce  to  and  from  a  sin- 
gle   point    in    the    state,    its    trains 


I'Utfrin.u,-  and  leaving  the  state  on 
the  same  day,  it  was  held  that  there 
was  no  warrant  for  assessing  as 
rolling  stock  within  the  state  all  of 
the  engines  and  cars  used  in  one 
da}'.  Baltiniftre  &c.  R.  Co.  v.  Com- 
monwealth, 177  Ky.  566,  198  S.  W. 
35. 

■*■'  Baltimore  &c.  R.  Co.  v.  Wi- 
comico County,  93  Md.  113,  48  Atl. 
853;  State  v.  Severance,  55  Mo. 
378;  State  v.  Back,  72  Nebr.  402, 
100  N.  W.  952,  69  L.  R.  A.  447; 
Richmond  &c.  R.  Co.  v.  Alamance, 
84  N.  Car.  504.  See  also  Old  Do- 
minion S.  S.  Co.  V.  Virginia,  198 
U.  S.  299,  25  Sup.  Ct.  686,  49  L.  ed. 
1059;  Columbus  Southern  R.  Co. 
V.  Wright.  151  U.  S.  470,  14  Sup. 
Ct.  396,  38  I.,  ed.  238;  Marye  v. 
Baltimore  &c.  R.  Co.,  127  U.  S. 
117,  8  Sup.  Ct.  1037,  32  L.  ed.  94. 

4*  See  post,  §§  912,  913. 

*^'  In  Chicago  &c.  Co.  v.  Board, 
54  Kans.  781,  39  Pac.  1039,  the 
court  said:    "While  exact  uniform- 


287 


TAXATION  OF  RAILROAD  PROPERTY 


§8% 


is  so.  independently  of  any  federal  questions  or  rules.  The 
requirement  of  equality  and  uniformity  is  violated  by  unjustly 
imposing'  a  burden  upon  railroad  companies  heavier  than  that 
imposed  upon  other  persons  or  corporations.  We  suppose,  how- 
ever, that  the  burden  imposed  must  be  palpably  and  materially 
greater  than  that  imposed  upon  other  property,  since  in  all 
systems  of  taxation  there  is  some  inequality.*^ 

§896   (745).     Lien  of  assessment. — The  principle  that  railroad 
proi)erty  is  assessed  as  a  unit  requires  the  conclusion  that  the 


it}'  and  equalitj-  can  not  be  had, 
and  while  mistakes  and  omissions 
by  assessors  may  not,  in  all  cases, 
be  the  subject  of  adequate  remedy 
in  the  courts,  yet  for  the  gross  in- 
justice and  violation  of  the  law 
complained  of,  there  ought  to  be 
some  remedy."  At  another  place 
it  was  said:  "We  do  not  think  the 
courts  are  powerless  to  prevent 
such  a  gross  discrimination  in  the 
assessment  and  taxation  of  prop- 
erty as  is  shown  in  this  case,  where 
one  class  of  property  is  assessed 
and  taxed  at  its  actual  value,  and 
all  other  property  in  the  same 
county  is  assessed  and  taxed  at 
only  twenty-five  per  cent,  of  its 
value."  See  Stanley  v.  Supervisors 
of  Albany,  121  U.  S.  535,  7  Sup.  Ct. 
1234,  30  L.  ed.  1000:  also  Louis- 
ville &c.  R.  Co.  V.  Bosworth,  209 
Fed.  380;  Missouri  &c.  R.  Co.  v. 
Kone  (Tex.  Civ.  App.),  122  S.  W. 
424,  and  cases  cited  ante  §  889, 
notes  28,  29. 

■*^  If  propert}'  of  other  persons 
and  corporations  is  taxed  only 
once,  double  taxation  of  railway 
property  would  be  a  discrimina- 
tion, against  which  the  courts 
should  interpose  their  power.    Cum- 


berland Marine  &c.  Co.  v.  Port- 
land, 37  Maine  444;  Osborn  v.  New 
York  &c.  Co.,  40  Conn.  491:  Han- 
nibal &c.  Co.  V.  Shacklett,  30  Mo. 
550:  State  v.  Hannibal  &c.  Co.,  37 
Mo.  265;  Nevv'  York  &c.  R.  Co.  v. 
Sabin,  26  Pa.  St.  242.  But  see 
Dunleith  &c.  Co.  v.  Dubuque,  32 
Iowa  427;  Orange  &c.  Co.  v.  Alex- 
andria, 17  Grat.  (Va.)  176.  But 
enforcement  of  a  tax  may  be  en- 
joined on  the  ground  of  system- 
atic or  persistent  undervaluation  of 
other  taxable  property.  Greene  v. 
Louisville  &c.  R.  Co..  244  U.  S. 
499,  37  Sup.  Ct.  673,  61  L.  ed.  1280. 
Ann.  Cas.  1917E,  88.  This  general 
doctrine  obtains  where  there  is  a 
constitutional  limitation  requiring 
equality  and  uniformity,  but  some 
of  the  decisions  hold  that  it  does 
not  prevail  where  there  is  no  such 
limitation.  United  States  &c.  Co. 
V.  State,  79  Md.  63,  28  Atl.  768. 
And  railroad  companies  are  not 
discriminated  against  contrary  to 
the  equal  protection  of  the  laws 
clause  in  the  constitution  by  an 
excise  tax  merely  because  other 
public  utilities  are  not  included. 
Ohio  Tax  Cases,  232  U.  S.  576,  34 
Sup.  Ct.  372,  58  L.  ed.  737. 


i>  897 


ICVILUOADS 


288 


lien  for  the  taxes  assessed  attaches  to  the  entire  property ,^^  The 
question  may,  of  course,  be  controlled  by  statutory  provisions, 
!nit  where  there  are  no  statutory  provisions  prescribing  a  dif- 
ferent rule  the  lien  will  fasten  upon  the  entire  property  within 
the  state.  We  suppose,  however,  that  taxing  officers  could  not 
sell  the  pro])erty  lying  outside  of  the  limits  of  the  state  for  the 
reason  that  a  state  law  can  have  no  extraterritorial  effect. 

§897  (745a).  Taxation  of  street  and  interurban  railroads. — 
Owing  largely  to  the  difference  in  the  nature  of  franchises  of 
railroads  and  street  railways,  and  to  the  fact  that  the  value  of 
the  different  portions  of  a  street  railway  line  vary  according  to 
the  density  of  the  population  of  the  localities  traversed,  it  has 
been  held  that  "street  railways"  are  not  generally  included 
within  the  term  "railroads,"  as  used  in  revenue  laws.^^  An  in- 
terurban railway  is  defined  in  the  Iowa  laws  as  any  railway 
operated  upon  the  streets  of  any  city  or  town  by  other  power 
than  steam,  and  extending  beyond  the  corporate  limits  to  any 
other  city  or  town.  One  section  of  the  law  provides  that  such 
roads  and  the  companies  operating  them  shall  be  governed  by 
the  same  laws  that  govern  railroad  and  railway  companies. 
Another    section    provides    that    any    interurban    railway    shall, 


*'  Maricopa  &c.  R.  Co.  v.  Ari- 
zona. 156  U.  S.  347,  15  Sup.  Ct.391, 
39  L.  ed.  448.  Taxes  upon  the 
capital  stock  have  been  held  to 
constitute  a  lien  on  the  real  prop- 
erty of  the  company.  Union  Trust 
Co.  V.  Weber,  96  111.  346.  And  its 
personal  property  is  within  a  stat- 
ute providing  that  the  state  shall 
have  a  lien  on  the  railroad  and  all 
its  appurtenances.  Stevens  v.  Lake 
George  &c.  R.  Co.,  82  Mich.  426, 
46  N.  W.  730. 

^s  San  Francisco  &c.  R.  Co.  v. 
Scott,  142  Cal.  222,  75  Pac.  575. 
See  also  Savannah  &c.  R.  Co.  v. 
Savannah,  198  U.  S.  392,  25  Sup. 
Ct.   690,  49   L.  ed.   1097.     But  see 


Pliiladelpliia  v.  Philadelphia  Trac- 
tion Co.,  206  Pa.  35,  55  Atl.  762, 
wlicre  it  is  held  that  the  words 
"Raih-oad"'  and  "Railway"  as  used 
in  the  Pennsylvania  statute  are 
synonymous,  and  apply  to  both 
steam  and  street  railways,  unless 
the  context  clearly  shows  a  differ- 
ent intent.  The  word  "railroad"  as 
used  in  the  Texas  statute  imposing 
a  gross-earning  tax  on  express 
companies  doing  business  by  rail- 
road or  water  within  the  state  has 
been  held  to  include  interurban 
railroads  run  by  electricitj'.  North 
Texas  Transfer  &c.  Co.  v.  State 
(Tex.  Civ.  App.),  169  S.  W.  1045. 


289 


TAXATION  OP  RAILROAD  I'ROi'ERTY 


§898 


within  the  limits  of  any  city  or  town,  upon  such  streets  as  it 
shall  use  for  transporting  passengers,  be  deemed  a  street  rail- 
way, and  be  subject  to  the  laws  governing  street  railways.  The 
supreme  court  of  that  state,  being  recently  called  upon  to  con- 
strue this  law,  has  held  that  the  last  section  operates  merely  to 
render  the  interurban  company  liable  to  the  obligations  and 
entitled  to  the  rights  of  a  street  railway  as  to  those  portions 
of  its  lines  within  the  city  or  town  limits,  but  does  not  give 
this  portion  of  the  line  the  character  of  a  street  railway,  so  as 
to  render  them  subject  to  assessment  as  street  railroads,  instead 
of  railroads  as  provided  in  the  previous  section.*^ 

§898  (746).     Relinquishment  of  the  power  of  taxation. — The 

general  rule  is  that,  where  there  is  no  constitutional  prohibition 
interdicting  it,  the  power  of  taxation  may  be  relinquished  in 
particular  instances. ^°  It  may  well  be  doubted  whether  the  cases 
which  hold  this  doctrine  have  not  departed  from  principle  since 


49  Cedar  Rapids  &c.  R.  Co.  v. 
Cummins,  125  Iowa  430,  101  N.  W. 
176. 

50  New  Jersey  v.  Wilson,  7  Cranch 
(U.  S.)  164,  3  L.  ed.  303;  Tomlin- 
son  V.  Branch,  15  Wall.  (U.  S.) 
460,  21  L.  ed.  189;  Tomlinson  v. 
Jessiip,  15  Wall.  (U.  S.)  454,  21  L. 
ed.  204:  Home  of  Friendless  v. 
Rouse.  8  Wall.  (U.  S.)  430,  19  L. 
ed.  495;  Ohio  Life  Ins.  &c.  Co.  v. 
Debolt,  16  How.  (U.  S.)  416,  14 
L.  ed.  997;  Humphrey  v.  Pegues, 
16  Wall.  (U.  S.)  244,  21  L.  ed.  326; 
Pacific  R.  Co.  V.  Maguire,  20  Wall. 
(U.  S.)  2,6,  22  L.  ed.  282;  McGee 
V.  ^lathis,  4  Wall.  (U.  S.)  143,  18 
L.  ed.  314;  Railroad  Co.  v.  Loftin, 
105  U.  S.  258,  26  L.  ed.  1042;  Dodge 
V.  Woolsey,  18  How.  (U.  S.)  331, 
15  L.  ed.  401;  Mobile  &c.  R.  Co. 
V.  Tennessee,  153  U.  S.  486,  14 
Sup.  Ct.  968,  38  L.  ed.  793;  Frank- 
lin Branch  Bank  v.  Ohio,   1   Black 


(U.  S.)  474,  17  L.  ed.  180;  Wright 
V.  Sill,  2  Black  (U.  S.)  544,  17  L. 
ed.  ZZZ;  Piqua  Bank  v.  Knoop,  16 
How.  (U.  S.)  369,  14  L.  ed.  977; 
Barnes  v.  Kornegay,  62  Fed.  671; 
Louisville  &c.  v.  Gaines,  3  Fed. 
266;  Mobile  v.  Stonewall  Insurance 
Co.,  53  Ala.  570;  State  Bank  v. 
People,  5  111.  303;  Farmers'  Bank 
V.  Commonwealth,  6  Bush  (Ky.) 
127;  LeRoy  v.  East  Saginaw  Rail- 
road Co.,  18  Mich.  233,  100  Am. 
Dec.  162;  Natchez  &c.  Co.  v.  Lam- 
bert, 70  Miss.  779,  13  So.  ZZ;  St. 
Louis  v.  Manufacturers'  Savings 
Bank,  49  Mo.  574;  South  Pacific 
Co.  V.  Laclede  County,  57  Mo.  147 
Gardner  v.  State,  21  N.  J.  L.  557 
State  V.  Wright,  41  N.  J.  L.  478 
Commonwealth  v.  Philadelphia  &c 
Co.,  164  Pa.  St.  252,  30  Atl.  145 
Columbia  &c.  Co.  v.  Chilberg,  6 
Wash.  612,  34  Pac.  163. 


^898 


RAILROADS 


290 


the  power  of  taxation,  being  a  sovereig-n  one,  is  incapable  of 
abdication  or  surrender,  but  the  decisions  have  settled  the  ques- 
tion. The  presumption  is  that  there  has  been  no  relinquishment 
of  the  power,  and  the  party  who  insists  that  it  has  been  relin- 
quished must  clearly  and  fully  establish  his  assertion,  otherwise 
it  will  be  adjudged  that  there  was  no  relinquishment.^^ 


51  Keokuk  &c.  R.  Co.  v.  Mis- 
souri, 152  U.  S.  301,  14  Sup.  Ct. 
592.  38  L.  ed.  450;  Mobile  &c.  Co. 
V.  Tennessee,  153  U.  S.  486,  14  Sup. 
Ct.  986,  38  L.  ed.  793;  People  ex 
rel.  Schurz  v.  Cook,  148  U.  S.  397, 
13  Sup.  Ct.  645,  Zl  L.  ed.  498; 
Yazoo  &c.  R.  Co.  v.  Adams,  180 
U.  S.  1,  21  Sup.  Ct.  240,  45  L.  ed. 
395;  New  Orleans  &c.  R.  Co.  v. 
New  Orleans,  143  U.  S.  192.  12  Sup. 
Ct.  406,  36  L.  ed.  121;  Railroad  Co. 
V.  Maine,  96  U.  S.  499,  24  L.  ed. 
836;  Vicksburg  &c.  R.  Co.  v.  Den- 
nis, 116  U.  S.  665,  6  Sup.  Ct.  625, 
29  L.  ed.  770;  Louisville  &c.  Co. 
V.  Gaines,  3  Fed.  266;  Oliver  v. 
Memphis  &c.  Co.,  30  Ark.  128;  At- 
lantic &c.  Co.  V.  Allen,  15  Fla,  637; 
Illinois  &c.  Co.  v.  Goodwin,  94  111. 
262;  Portland  v.  Portland  &c.  Co.. 
67  Maine  135;  State  v.  Baltimore 
&c.  Co.,  48  Md.  49;  Wells  v.  Hy- 
attsville,  n  Md.  125,  26  Atl.  357, 
20  L.  R.  A.  89;  Mobile  &c.  Co.  v. 
Moseley,  52  Miss.  127;  Grand  Gulf 
&c.  Co.  v.  Buck,  53  Miss.  246;  Scot- 
land Co.  V.  Missouri  &c.  Co..  65 
Mo.  123;  Cook  v.  State,  IZ  N.  J. 
Eq.  474;  Rochester  v.  Rochester  R. 
Co.,  182  N.  Y.  99,  74  N.  E.  953,  70 
L.  R.  A.  773;  Richmond  v.  Rich- 
mond &c.  Co.,  21  Grat.  (Va.)  604: 
Wisconsin  &c.  Co.  v.  Taylor  Coun- 
ty, 52  Wis.  n,  8  N.  W.  833.  1  Am. 
&  Eng.  Cas.  532.  In  Baltimore  &c. 
R.  Co.  V.  Wicomico  County  Comrs.. 
103    Md.   277,    63    Atl.   678.   681,    it 


is  said:  "Every  reasonable  intend- 
ment must  be  made  that  it  was  not 
the  design  to  surrender  the  .power 
of  taxation  or  to  exempt  any  prop- 
erty from  its  due  proportion  of  the 
burden  of  taxation."  Citing  Mem- 
phis &c.  R.  Co.  V.  Railroad  Comrs., 
112  U.  S.  609,  5  Sup.  Ct.  299,  28 
L.  ed.  837;  Chesapeake  &c.  R.  Co. 
V.  Miller,  114  U.  S.  186,  5  Sup.  Ct. 
813,  29  L.  ed.  121;  Picard  v.  East 
Tennessee  &c.  R.  Co.,  130  U.  S. 
641,  9  Sup.  Ct.  640,  7>2  L.  ed.  1051; 
New  York  v.  Cook,  148  U.  S.  409, 
13  Sup.  Ct.  645,  2>1  L.  ed.  498; 
Phoenix  Fire  &c.  Ins.  Co.  v.  Ten- 
nessee. 161  U.  S.  174.  16  Sup.  Ct. 
471.  40  L.  cd.  660;  Buchanan  v. 
Talbot  Co.,  47  Md.  293;  State  v. 
Baltimore  &c.  R.  Co.,  48  ^Td.  73: 
Appeal  Tax  Court  v.  Rice,  50  Md. 
312;  Appeal  Tax  Court  v.  Univer- 
sity, 50  Md.  465.  So,  as  said  by 
the  Supreme  Court  of  the  United 
States,  "exemptions  from  taxation 
are  regarded  as  in  derogation  of 
the  sovereign  authority  and  of 
common  right,  and  therefore  not 
to  be  extended  beyond  the  exact 
and  express  requirements  of  the 
language  used,  construed  strictes- 
simi  juris."  Vicksburg  &c.  R.  Co. 
V.  Denni.s,  116  U.  S.  665,  6  Sup.  Ct. 
625,  29  L.  ed.  770;  Yazoo  &c.  R. 
Co.  V.  Thomas,  132  U.  S.  174.  10 
Sup.  Ct.  68,  7)1  L.  ed.  302.  See  also 
Louisiana  &c.  R.  Co.  v.  State 
r...ard.  135  T-a.  69,  64  So.  985. 


291 


TAXATION  OF  RAILROAD  PROPERTY 


§899 


§899   (747).     Exemption  from  taxation — Consolidation. — The 

rule  that  exemption  from  taxation  does  not  exist  unless  the 
exemption  is  conferred  by  clear  statutory  provisions  would  seem 
to  require  the  conclusion  that,  where  two  railroad  corporations 
are  consolidated,  the  ri.G^ht  to  exemption  is  lost  unless  expressly 
or  impliedly  saved  by  the  statute  authorizing-  the  consolidation. 
The  theory  of  the  adjudged  cases,  however,  is  that,  where  the 
consolidated  corporation  becomes  essentially  a  new  corporation, 
the  right  of  exemption  is  lost,  but  if  the  identity  of  the  two 
corporations  is  preserved  the  right  of  exemption  is  not  de- 
stroyed.^-   Whether  the  right  of  exemption  is  lost  must  depend 


52  In  the  case  of  Shields  v.  Ohio. 
95  U.  S.  319,  323,  24  L.  ed.  357,  the 
court  said,  speaking  of  the  consoli- 
dation: "It  could  not  occur  with- 
out their  consent.  The  consoli- 
dated company  had  then  no  exist- 
ence. It  could  have  none  while 
the  original  corporation  subsisted. 
All  the  old  and  the  new  could  not 
co-exist.  It  was  a  condition  prece- 
dent to  the  existence  of  the  new 
corporation  that  the  old  ones  should 
first  surrender  their  vitality  and 
submit  to  a  dissolution.  This  be- 
ing done,  eo  instante  the  new  cor- 
poration came  into  existence."  In 
Keokuk  &c.  R.  Co.  v.  Missouri,  152 
U.  S.  301,  14  Sup.  Ct.  592,  38  L.  ed. 
450,  the  court  held  that  the  con- 
solidated corporation  was  a  new 
corporation  and  did  not  acquire  a 
right  of  exemption  conferred  upon 
one  of  the  constituent  companies. 
The  court  said:  "It  follows  that 
when  the  new  corporation  came 
into  existence  it  came  precisely  as 
if' it  had  been  organized  under  a 
charter  granted  at  the  date  of  the 
consolidation  and  subject  to  the 
constitutional  provisions  then  ex- 
isting,    which     required     (art.     11, 


§  16)  that  no  property,  real  or  per- 
sonal, should  be  exempted  from 
taxation,  except  such  as  was  used 
exclusively  for  public  purposes;  in 
other  words,  that  the  exemption 
from  taxation  contained  in  section 
0  of  the  original  charter  of  the 
Alexandria  and  Bloomfield  Railway 
Company  did  not  pass  to  the  Mis- 
souri, Iowa  and  Nebraska  Com- 
panj'.  As  was  said  of  an  Arkansas 
corporation  in  St.  Louis  &c.  R.  Co. 
v.  Berry,  113  U.  S.  465,  475,  5  Sup. 
Ct.  529,  28  L.  ed.  1055:  'It  came 
into  existence  as  a  corporation  in 
the  state  of  Arkansas,  in  pursuance 
of  its  constitution  and  laws,  and 
subject  in  all  respects  to  their  re- 
strictions and  limitations.  Among 
these  was  that  one  which  declared 
that  the  property  of  corporations, 
now  existing,  or  hereafter  created, 
shall  forever  be  subject  to  taxation 
the  same  as  property  of  individ- 
uals. This  rendered  it  impossible 
for  the  consolidated  corporation  to 
receive  by  transfer  from  the  Cairo 
and  Fulton  R.  Company,  or  other- 
wise, the  exemption  sought  to  be 
enforced  in  this  suit.'  See  also 
Memphis    &c.    R.    Co.    v.    Railroad 


§899 


RAILROADS 


292 


almost  entirely  uikjii  the  statutes  under  which  the  consolidation 
is  effected,  but  in  construing  the  statutes  the  court  should,  we 
venture  to  affirm,  keep  in  mind  the  general  principle  forbidding 
the  bargaining  away  of  the  powers  of  government,  as  well  as 
the  salutary  rule  that  justice  requires  that  the  burden  of  taxa- 
tion shall  fall  e(iually  and  uniformly  upon  all  i)roperty,  and  that 
exemptions  cannot  exist  except  when  clearly  granted  by  con- 
stitutional statutes.  The  right  of  exemption  does  not  extend 
to  lines  of  railroad  leased  to  the  corporation  to  which  the  ex- 
emption is  granted. ^^^  There  is  no  consolidation  in  such  cases, 
and  there  cannot  be  any  implication  or  presumption  that  leased 


Comrs.,  112  U.  S.  609,  5  Sup.  Ct. 
299,  28  L.  ed.  837;  Shields  v.  Ohio, 
95  U.  S.  319,  24  L.  ed.  357;  Louis- 
ville &c.  R.  Co.  V.  Palmes,  109 
U.  S.  244,  3  Sup.  Ct.  193,  27  L.  ed. 
922.  Nor  was  the  exemption  saved 
by  section  3  of  article  11,  provid- 
ing that  'all  statute  laws  of  this 
state  now  in  force,  not  inconsistent 
with  this  constitution,  shall  con- 
tinue in  force  until  they  shall  ex- 
pire by  their  own  limitation,  or  be 
amended  or  repealed  by  the  gen- 
eral assembly.'  This  referred  to 
statutes  in  force  at  the  time  the 
constitution  was  adopted,  the  op- 
eration of  which  is  continued,  not- 
withstanding the  constitution.  In 
this  case,  however,  the  exemption 
contained  in  section  9  of  the  char- 
ter of  the  Alexandria  and  Bloom- 
field  Railway  Company  ceased  to 
exist,  not  by  the  operation  of  the 
constitution,  but  by  the  dissolution 
of  the  corporation  to  which  it  was 
attached."  See  also  Tomlinson  v. 
Branch.  15  Wall.  (U.  S.)  460,  21 
L.  ed.  189:  Philadelphia  &c.  R.  Co. 
V.  Maryland,  10  How.  (U.  S.)  376, 
13  L.  ed.  461;  Delaware  Railroad 
Tax.  18  Wall.  (U.  S.)  206,  21  L.  ed. 


888;  Central  Railroad  &c.  Co.  v. 
Georgia,  92  U.  S.  665,  23  L.  ed. 
757;  Chesapeake  &c.  R.  Co.  v.  Vir- 
ginia, 94  U.  S.  718,  24  L.  ed.  310; 
Railroad  Co.  v.  Maine,  96  U.  S. 
499,  24  L.  ed.  836;  Railroad  Co.  v. 
Gaines,  97  U.  S.  697,  24  L.  ed. 
1091;  Railroad  Co.  v.  Georgia,  98 
U.  S.  359,  25  L.  ed.  185;  Scoville  v. 
Thayer,  105  U.  S.  143,  26  L.  ed. 
968:  Green  Co.  v.  Conness,  109 
U.  S.  104,  3  Sup.  Ct.  69.  27  L.  ed. 
872;  St.  Louis  &c.  R.  Co.  v.  Berry, 
113  U.  S.  465,  5  Sup.  Ct.  529,  28 
L.  cd.  1055:  Tennessee  v.  Whit- 
worth,  lU  U.  S.  139,  6  Sup.  Ct.  649. 
29  L.  ed.  833:  San  Antonio  Trac- 
tion Co.  V.  Altgelt,  200  U.  S.  304. 
26  Sup.  Ct.  261,  50  L.  ed.  491;  Mc- 
]\lahan  v.  Morrison,  16  Ind.  172; 
State  V.  Keokuk  &c.  Co.,  99  Mo. 
30,  12  S.  W.  290,  6  L.  R.  A.  222; 
Rochester  v.  Rochester  Ry.  Co., 
182  N.  Y.  99,  74  N.  E.  953,  70  L.  R. 
A.  111. 

'•'■'■  Lake  Shore  &c.  Co.  v.  Grand 
Rai)ids.  102  Mich.  374.  60  N.  W. 
767.  Nor,  it  seems,  does  the  ex- 
cinption  of  the  lessor  extend  to  the 
lessee.  Rochester  v.  Rochester  R. 
Co.,  182  N.  Y.  99,  74  N.  E.  953,  70 


293 


TAXATION  OF  KAILROAD  PROPERTY 


§900 


])ro])erty  is  exempt,  for  the  presumption,  in  the  absence  of  coun- 
tervaihng-  facts,  is  always  against  exemptions  and  in  favor  of 
equality  and  uniformity.  In  Louisiana,  by  statute,  the  right  to 
exemption  follows  the  railroad  no  matter  i-nto  whose  hands  it 
ma}^  come,  even  thoug-h  by  consolidation.'* 

§900  (748).  Right  of  exemption  non-assignable. — The  courts 
have  generally  manifested  a  reluctance  to  extend  the  doctrine 
that  the  power  of  taxation  can  be  relinquished,  and,  wherever 
possible,  without  denying  the  doctrine  of  the  earlier  cases,  have 
limited  the  rule.  The  rule  is,  in  our  judgment,  not  only  unwise, 
but  is  also  opposed  to  the  principle  that  the  powers  of  govern- 
ment cannot  be  bargained  away,  abrogated,  or  surrendered,  and 
there  is.  therefore,  strong  reason  for  confining  its  operation 
within  narrow  limits.  The  cases  which  hold  that  the  right 
cannot  be  assigned  assert  a  wise  doctrine,  but,  it  must  be  con- 
fessed that  it  is  difficult  to  see  how  this  result  can  be  logically 
reached  if  it  be  true  that  the  right  of  exemption  is  one  created 
by  contract,  and  as  such  protected  by  the  constitution,  since  it 
would  seem  to  necessarily  follow  that,  if  the  right  is  one  of 
contract,  it  may  he  sold  and  assigned.  The  decisions  of  the 
court  of  final  resort,  however,  have  settled  the  question  bv 
adjudging  that  the  right  is  not  assignable.'^     Thus,  it  has  been 


L.  R.  A.  773.  See  also  State  v. 
Northern  Pac.  R.  Co.,  32  Minn.  294. 
20  N.  W.  234;  State  v.  Chicago  &c. 
R.  Co.,  89  Mo.  523,  14  S.  W.  552. 
But  compare  State  Board  v.  Mor- 
ris &c.  R.  Co.,  49  N.  J.  L.  193.  7 
Atl.  826.  A  lease  for  a  thousand 
years,  without  reversion,  upon 
consideration  of  completing  the 
road  in  a  certain  time,  has  been 
held  to  extinguish  an  exemption 
from  taxation.  Commonwealth  v. 
Nashville  &c.  R.  Co.,  93  Ky.  430, 
20  S.  W.  383. 

5*  Louisiana  &c.  R.  Co.  v.  State 
Board,  135  La.  69,  64  So.  985.  As 
tn  when  a  consolidated  corporation 


or  the  like  must  pay  an  incorpora- 
tion tax  as  for  a  new  corporation, 
see  Chicago  Title  &c.  Co.  v.  Doyle. 
259  111.  489,  102  N.  E.  790,  47  L.  R. 
A.   (N.  S.)    1066.  and  note. 

■''-'  The  question  was  considered 
in  Louisville  &c.  R.  Co.  v.  Palmes. 
109  U.  S.  244,  3  Sup.  Ct.  193,  27 
L.  ed.  922,  and  the  court,  referring 
to  the  case  of  Morgan  v.  Louisiana. 
93  U.  S.  217,  23  L.  ed.  860,  held 
the  right  to  not  be  assignable.  In  the 
case  first  named  it  was  said:  "The 
exemption  from  taxation,  created 
by  the  eighteenth  section  of  the 
internal  improA-ement  act  of  1855. 
is   in   every  respect   similar   to   that 


§901 


RAILROADS 


294 


lu'ld  lliat  llu'  purcli.'iscr  iit  a  niortgag'e  foreclosure  sale  does  iiot 
acquire  an  exemption  from  taxation  which  the  mortJ^agor  had.^' 

§901    (749).     Immunity  from  taxation  not  a  franchise. — There 
IS  conflict  in  the  cases  upon  the  question  whether  immunit}'  from 


which  was  declared  in  Morgan  v. 
T.ouisiana.  93  U.  S.  217,  23  L.  cd. 
860,  to  be  not  assignable.  No 
words  of  assignability  are  used  by 
the  legislature  of  the  state  in  tlie 
language  creating  it,  and  from  its 
nature  and  context  it  is  to  be  in- 
ferred that  the  exemption  of  the 
property  of  the  company  was  in- 
tended to  be  of  the  same  character 
as  that  declared  in  reference  to  its 
capital  stock  and  to  its  officers, 
servants  and  emploj'es,  and  that 
all  alike  were  privileges  personal 
to  the  corporation,  or  to  individ- 
uals connected  with  it,  entitled  to 
them  by  the  terms  of  the  law. 
This  exemption,  therefore,  did 
not  pass  from  the  Alabama  and 
Florida  Railroad  Company  to  the 
Pensacola  and  Louisville  Railroad 
Company  by  the  conveyances  which 
passed  the  title  to  the  railroad  it- 
self, and  to  the  franchises  con- 
nected with  and  necessary  in  its 
construction  and  operation."  See 
also  Wilmington  &c.  R.  Co.  v.  Als- 
brook,  146  U.  S.  279,  13  Sup.  Ct. 
72,  2,6  L.  ed.  972;  Baltimore  &c.  R. 
Co.  v.  Mayor,  89  Md.  89,  42  Atl. 
922:  Wilmington  &c.  R.  Co.  v.  Als- 
brook,  110  N.  Car.  137,  14  S.  E. 
652,  citing  Southwestern  R.  Co.  v. 
Wright,  116  U.  S.  231,  6  Sup.  Ct. 
329,  29  L.  ed.  626;  Chicago  &c.  R. 
Co.  V.  GufTey,  120  U.  S.  569,  7  Sup. 
Ct.  693,  30  L.  ed.  732;  Bloxam  v. 
Florida  &c.  R.  Co.,  35  Fla.  625,  17 


So.  902:  State  v.  Mercantile  Bank, 
95  Tenn.  212,  31  S.  W.  989:  Roches- 
ter V.  Rochester  Ry.  Co..  182  N.  Y. 
99.  116,  74  N.  F.  953,  70  L.  R.  A. 
77:^.  affirmed  in  205  U.  S.  236,  27 
Sup.  Ct.  469.  51  L.  ed.  784.  In  the 
opinion  of  the  Supreme  Court  of 
the  United  States  in  the  case  last 
cited  earlier  decisions  are  reviewed 
and  some  of  them  modified  and  it 
is  held  that  a  statute  authorizing 
assignment  or  transfer  of  "privi- 
leges" does  not  include  immunity 
from  taxation.  But  compare  De- 
troit &c.  R.  Co.  v.  Common  Coun- 
cil, 125  Mich.  673,  85  N.  W.  96,  84 
Am.  St.  589:  Traverse  Co.  v.  St. 
Paul  &c.  R.  Co.,  7Z  Minn.  417,  76 
N.  W.  217. 

56  Baltimore  &c.  R.  Co.  v.  Wico- 
mico County  Comrs.,  103  Md.  277, 
63  Atl.  678.  But  the  Federal  Court 
took  a  different  view  under  the 
statute  there  involved.  Wicomico 
County  Comrs.  v.  Bancroft,  135 
Fed.  977,  from  which,  however,  a 
writ  of  certiorari  has  been  granted 
to  the  Supreme  Court  of  the  United 
States.  26  Sup.  Ct.  756.  See  also 
to  the  effect  that  immunity  from 
taxation  does  not  ordinarily  pass 
on  foreclosure  sale.  Morgan  v. 
Louisiana,  93  U.  S.  217,  23  L.  ed. 
860;  Picard  v.  East  Tenn.  &c.  R. 
Co.,  130  U.  S.  6Z7,  9  Sup.  Ct.  640, 
32  L.  ed.  1051:  Arkansas  &c.  R. 
Co.  v.  Berry,  44  Ark.  17. 


295 


TAXATION  OF  RAILROAD  PROPERTY 


§901 


taxation  is  a  franchise,"''  but  the  l)etter  reason  and  weight  of 
authority  are  to  the  effect  that  it  is  not  a  franchise  in  the  proper 
sense.  We  think  that  the  rule  should  be  that  the  immunity 
cannot  be  regarded  as  a  franchise  passing  liy  assignment,  unless 
that  conclusion  is  imperatively  required  by  the  provisions  of 
the  statute,  and  if  there  be  doubt  it  must  be  resolved  against 
the  claim  that  the  immunity  is  a  franchise.  Tt  is  bad  enough  to 
permit  the  immunity  to  be  granted  as  a  contract  right,  and  to 
extend  the  erroneous  rule  beyond  what  a  rigid  adherence  to  the 
earlier  cases  require  would  be  to  give  to  a  pernicious  doctrine 
a  verv  wide  and  evil  influence. 


57  Tn  Keokuk  &c.  R.  Co.  v.  Mis- 
souri, 152  U.  S.  301,  14  Sup.  Ct. 
592,  38  L.  ed.  450,  the  court  said: 
"Whether  under  the  name  fran- 
chises and  privileges  an  immunity 
from  taxation  would  pass  to  the 
new  company  may  admit  of  some 
doubt  in  view  of  the  decisions  of 
this  court,  which  upon  this  point 
are  not  easy  to  be  reconciled.  In 
Chesapeake  &c.  R.  Co.  v.  Miller, 
114  U.  S.  176,  5  Sup.  Ct.  813,  29 
L.  ed.  121,  it  was  held  that  an  im- 
munity from  taxation  enjoyed  by 
the  Covington  and  Ohio  Railroad 
Company  did  not  pass  to  a  pur- 
chaser of  such  road  under  fore- 
closure of  a  mortgage,  although 
the  act  provided  that  'said  pur- 
chaser shall  forthwith  be  a  corpo- 
ration' and  'shall  succeed  to  all 
such  franchises,  rights  and  privi- 
leges ...  as  would  have  been 
had  ...  by  the  first  company 
but  for  such  sale  and  conve3'ance.' 
It  was  held,  following  in  this  par- 
ticular, Morgan  v.  Louisiana,  93 
U.  S.  217,  23  L.  ed.  860,  that  the 
words  'franchises,  rights  and  priv- 
ileges' did  not  necessarily  embrace 
a    grant    of    an    exemption    or    im- 


munity. See  also  Picard  v.  East 
Tennessee  &c.  R.  Co.,  130  U.  S. 
637,  9  Sup.  Ct.  640,  32  L.  ed.  1051. 
Upon  the  other  hand,  it  was  held 
in  Tennessee  v.  Whitworth,  117 
U.  S.  139,  6  Sup.  Ct.  649.  29  L.  ed. 
833,  that  the  right  to  have  shares 
in  its  capital  stock  exempted  from 
taxation  within  the  state  is  con- 
ferred upon  a  railroad  corporation 
by  state  statutes  granting  to  it  'all 
the  rights,  powers  and  privileges' 
conferred  upon  another  corporation 
named,  if  the  latter  corporation 
possesses  by  law  such  right  of  ex- 
emption; citing  in  support  of  this 
principle  a  number  of  prior  cases. 
See  also  Wilmington  &c.  R.  Co.  v. 
Alsbrook,  146  U.  S.  279,  297,  13 
Sup.  Ct.  72,  36  L.  ed.  972."  See 
also  Detroit  R.  Co.  v.  Guthard,  51 
Mich.  180.  For  a  full  discussion 
and  later  authorities,  see  ante,  § 
380.  And  see  especially  Buchanan 
V.  Knoxville  &c.  Co.,  71  Fed.  324, 
334;  Rochester  R.  Co.  v.  Rochester, 
205  U.  S.  236,  27  Sup.  Ct.  469,  51 
L.  ed.  784;  State  v.  Chicago  &c.  R. 
Co.,  89  Mo.  523.  14  S.  W.  522: 
Baltimore  &c.  R.  Co.  v.  Ocean  City, 
89   Md.  89,  42   Atl.  922;   and   com- 


§  902 


HAILKOADS 


296 


8  902  (750).  Exemption  of  property  used  in  operating  rail- 
road.— Tlu'  cardinal  and  well-kncjwn  rule  of  construction  is  that 
a  statute  exempting  property  from  taxation  is  to  be  strictly  con- 
strued. The  general  rule  is  settled  and  familiar,  but  its  practical 
application  is  not  always  free  from  difficulty.  It  would  not  be 
profitable  to  comment  upon  the  cases  in  which  the  rule  has  been 
applied,  for  they  are  numerous,  and  the  statutes  to  which  it  has 
been  applied  differ  in  many  material  particulars. ""'^  The  courts 
are  often  called  upon  to  determine  the  meaning  of  such  phrases 
as  "all  property  used  l)y  a  railroad  comj^any,"  or  "all  property 
tised  for  railroad  purposes."  In  such  cases  the  decisions  have 
generally  been  that  it  is  only  such  property  as  is  actually  used  or 
required  in  operating  the  railroad  that  is  exempt.  There  is,  how- 
ever, difficulty  in  determining  what  is  such  use  as  will  bring  the 
particular  case  Avithin  the  exemption,  and  there  is  some  confusion 
among  the  authorities  upon  tlie  question. ^^     A  great  diversity  of 


pare  Given  v.  Wright,  117  U.  S. 
648,  6  Sup.  Ct.  907,  29  L.  ed.  1021, 
with  Chesapeake  &c.  R.  Co.  v.  Mil- 
ler, 114  U.  S.  176,  5  Sup.  Ct.  813, 
29  T..  ed.  121. 

■"'S  See  generally  Atlantic  &c.  Co. 
V.  Allen,  15  Fla.  637;  Colorado  So. 
&c.  R.  Co.  V.  Crowley,  134  La.  180. 
63  So.  868;  Baltimore  v.  Baltimore 
&c.  Co.,  6  Gill  (Md.)  288,  26  Am. 
Dec.  576;  County  Com'rs  v.  Farm- 
ers' National  Bank,  48  Md.  117; 
Vicksburg  &c.  Co.  v.  Bradley,  66 
Miss.  518,  6  So.  321;  Hope  Mining 
Co.  V.  Kennon,  3  Mont.  34;  State 
V.  Branin,  23  N.  J.  L.  484;  State  v. 
Receiver  &c.,  38  N.  T.  L.  299,  13 
Am.  Rep.  50;  Schuylkill  &c.  Co.  v. 
Commissioners,  11  Pa.  St.  202;  At- 
lantic &c.  Co.  V.  Lesuer,  1  L.  R.  A. 
244;  2  Inter.  Com.  R.  189. 

^^  Wilmington  Railroad  v.  Reid, 
13  Wall.  (U.  S.)  264,  20  L.  ed.  568; 
St.  Louis  &c.  Co.  V.  Loftin,  30  Ark. 
693;    Osborn  v.   Hartford   &c.    Co., 


40  Conn,  498;  Atlanta  &c.  Co.  v. 
Atlanta,  66  Ga.  104;  Illinois  Cen- 
tral Co.  v.  Irvin,  72  111.  452;  Swig- 
ert,  In  re,  119  III.  83,  6  N.  E.  469, 
59  Am.  Rep.  789;  Portland  &c.  R. 
Co.  V.  Saco,  60  ]\Iaine  196;  State 
V.  Baltimore  &c.  Co.,  48  Md.  49; 
Detroit  Szc.  Co.  v.  Detroit,  88  Mich. 
347.  50  N.  W.  302;  Todd  Co.  v.  St. 
Paul  &c.  Co.,  38  Minn.  163.  36  N. 
W.  109;  Whitcomb  v.  Ramsey 
County,  91  Minn.  238,  97  X.  W. 
879;  Northern  Pac.  Co.  v.  Garland, 
5  Mont.  146,  3  Pac.  134;  State  v. 
Newark,  26  N.  J.  520;  State  v. 
Haight,  34  N.  J.  L.  319;  State  v. 
Haight,  35  N.  J.  L.  40:  State  v. 
Woodrufif,  36  N.  J.  L.  94;  State  v. 
Collector  &c.,  38  N.  J.  L.  270;  State 
V.  Wetherill,  41  N.  J.  L.  147;  Rail- 
road Co.  V.  Berks  County.  6  Pa.  St. 
70:  Wayne  County  v.  Delaware  &c. 
Co.,  15  Pa.  St.  351;- New  York  &c. 
Co.  V.  Sabin,  26  Pa.  St.  242;  Lacka- 
wanna &c,  Co.  V.  Luzerne  County, 


297 


TAXATION  OF  RAILROAD  PROPERTY 


§902 


opinion  prevails,  although  all  the  cases  profess  adherence  to  the 
cardinal  rule.  Some  of  the  courts  enforce  the  rule  with  rigid 
strictness,  holding  that  there  must  be  actual  use  for  railroad  pur- 
poses, and  not  merely  a  use  for  a  purpose  indirectly  connected 
with  the  operation  of  the  railroad.  A\hile  other  courts  extend  the 
exemption  to  property  incidentally  connected  with  the  operation 
of  the  railroad. '''°  As  much  as  can  be  safely  said  is  that  in  each 
particular  case  the  question  is  one  of  legislative  intention,  that  in- 
tention being  gathered  from  the  particular  statute  strigtl}-  con- 
strued against  the  corporation  which  claims  that  its  property  is 
exempt  from  taxation,  and  it  appearing"  clearly  that  the  property 
claimed  as  exempt  is  essential  and  not  barel}'  convenient  to  the 
operation  of  the  railroad.''^  The  statement  made  does  not  ad- 
vance us  very  far,  for  the  question  of  importance  and  dif^culty 
which  must  be  solved  is  as  to  what  property  is  reasonably  neces- 
sary to  the  proper  operation  of  the  railroad,  but  it  is  not  possible 
to  give  any  general  rule  which  will  enable  the  investigator  to 
work  out  a  solution  of  the  legal  problem. 


42  Pa.  St.  424;  Northampton  &c. 
Co.  V.  Lehigh  &c.  Co.,  75  Pa.  St. 
461;  County  of  Erie  v.  Erie  &c. 
Co.,  87  Pa.  St.  434;  De  Soto  Bank 
V.  Memphis,  6  Baxt.  (Tenn.)  415; 
State  V.  Nashville  &c.  Co.,  86  Tenn. 
438,  6  S.  W.  880;  Day  v.  Joiner,  6 
Baxt.  (Tenn.)  441;  Milwaukee  &c. 
Co.  V.  Board  of  Supervisors,  29 
Wis.  116;  Milwaukee  &c.  Co.  v. 
Milwaukee,  34  Wis.  271;  Chicago 
&c.  Co.  V.  Board  of  Supervisors,  48 
Wis.  666. 

^0  It  has  been  held  that  an  inn 
used  exclusively  by  passengers  and 
employes  traveling  on  railroad 
trains  comes  within  the  exemption 
of  "property  necessarily  used  in 
operating  the  railroad."  Milwau- 
kee &c.  Co.  V.  Board  of  Supervi- 
sors, 29  Wis.  116.  But  see  State  v. 
Mansfield,  23  N.  J.  L.  510,  57  Am. 
Dec.    409n,    and    compare    State    v. 


Baltimore  &c.  R.  Co.,  48  Md.  49. 
As  to  grain  elevators,  see  Detroit 
Union  &c.  Co.  v.  Detroit,  88  Mich. 
347,  50  N.  W.  302;  Illinois  Cent. 
R.  Co.  v.  People,  119  111.  137,  6 
N.  E.  451;  Pennsylvania  R.  Co.  v. 
Jersey  City,  49  N.  J.  L.  540,  9  Atl. 
782,  60  Am.  Rep.  648,  aff'd  in  51 
N.  J.  L.  564,  20  Atl.  60;  Peters- 
burgh  R.  Co.  V.  Northampton 
County,  81  N.  Car.  487.  But  com- 
pare Erie  County  v.  Erie  &c. 
Transp.  Co.,  87  Pa.  St.  434;  State 
v.  Nashville  &c.  R.  Co.,  86  Tenn. 
438,  6  S.  W.  880;  Milwaukee  &c. 
R.  Co.  V.  Milwaukee,  34  Wis.  271: 
Chicago  &c.  R.  Co.  v.  Bayfield,  87 
Wis.  188,  58  N.  W.  245. 

61  Propert}'  not  used  for  railroad 
purposes  is  taxable  as  provided  for 
taxing  property  of  like  character, 
in  the  hands  of  ordinarj"-  corpora- 
tions or  of  individuals.     Osborn   v. 


§903 


HAILKOADS 


298 


^  903  (750a).  Withdrawal  of  exemption. —  It  may  l)e  said  t^x-ii- 
erally  that,  ^vhc're  there  is  no  true  contract  or  meetini^"  of  the  state 
?nd  the  bcneliciary  of  an  exemption  statute  on  a  basis  of  bargain 
and  consideration,  the  statute  granting  the  exemption  will  be  re- 
garded merely  as  an  expression  of  the  present  will  of  the  state  on 
the  subject,  and,  like  other  general  laws,  subject  to  modification 
or  repeal  in  the  legislative  discretion,  though  the  parties  have 
acted  in  reliance  upon  it  while  it  continued  in  force.''-  Thus,  a 
provision  in  a  general  tax  law  that  railroad  companies  thereafter 
building  and  operating  roads  in  specified  districts  shall  be  exempt 
from  taxation  for  a  named  period,  unless  the  gross  earnings  shall 
exceed  a  certain  sum,  was  held  not  to  rise  to  the  dignity  of  a 
covenant  of  contract  within  the  meaning  of  the  constitutional 
provision  as  to  the  impairment  of  contracts."^  In  the  case  an- 
nouncing this  principle  the  court  said :  "The  broad  view  in  a 
case  like  this  is,  that,  in  view  of  the  subject-matter,  the  legislature 
is  not  making  a  promise,  but  forming  a  scheme  of  public  revenue 
and  public  improvement.  In  announcing  its  policy  and  provid- 
ing for  carrying  it  out  it  may  open  a  chance  for  benefit  to  those 
who  comply  with  its  conditions,  but  it  does  not  address  them, 
and,  therefore,  it  makes  no  promises  to  them.  It  simply  indicates 
a  course  of  conduct  to  be  pursued  until  circumstances  or  its  views 


Hartford  &c.  Co.,  40  Conn.  498; 
Santa  Clara  Co.  v.  Southern  &c. 
Co.,  118  U.  S.  394,  6  Sup.  Ct.  1132; 
Chicago  &c.  Co.  v.  Paddock,  75 
111.  616;  People  v.  Chicago  &c.  Co., 
116  111.  181,  4  N.  E.  480,  24  Am.  & 
Eng.  Cas.  612;  Toledo  &c.  Co.  v. 
Lafayette,  22  Ind.  262;  Pfaflf  v. 
Terre  Haute  &c.  Co.,  108  Ind.  144, 
153,  9  N.  E.  93;  Applegate  v.  Ernst, 
3  Bush  (Ky.)  648,  96  Am.  Dec.  272; 
United  &c.  Co.  v.  Jersey  City,  53 
N.  J.  L.  547,  22  Atl.  59;  State  v. 
Hancock,  33  N.  J.  L.  315.  The 
question  as  to  when  elevators  and 
other  structures  upon  the  right  of 
way  are  exempt  under  such  stat- 
utes  and    how    they   should   be   as- 


sessed, H  taxable,  is  considered  in 
Northern  Pac.  R.  Co.  v.  Morten 
County,  32  N.  Dak.  627,  156  N.  W. 
226,  L.  R.  A.  1916E,  404,  and  note 
carefully  reviewing  the  authorities. 
See  also  Lake  Tahoe  Ry.  &c.  Co. 
v.  Roberts,  168  Cal,  551,  143  Pac. 
786,  Ann.  Cas.  1916E,  1196;  Phila- 
delphia &c.  R.  Co.  v.  Woodbridge 
Twp.,  91  N.  J.  180,  102  Atl.  392. 

*'2  Cooley  Taxation  (3rd  ed.).  111. 
See  also  Stone  v.  Mississippi,  101 
U.  S.  814,  25  L.  ed.  1079;  Savannah 
&c.  R.  Co.  v.  Savannah,  198  U.  S. 
392,  25  Sup.  Ct.  690,  49  L.  ed.  1097. 

^3  Wisconsin  &c.  R.  Co.  v.  Pow- 
ers, 191  U.  S.  379,  24  Sup.  Ct.  107, 
48  L.  ed.  229, 


299  TAXATION  OF  RAILROAD  PROPERTY  §  904 

of  policy  change."''^  But  provisions  in  a  state  statute  for  a  spe- 
cial rate  of  taxation  in  respect  to  the  particular  corporation,  made 
with  a  view  of  inducing  large  expenditures,  and  which  are  form- 
allv  accepted  and  complied  with,  will  amount  to  a  contract,  with- 
in the  protection  of  the  impairment  clause  of  the  Federal  Consti- 
tution, and  no  other  tax  can  be  imposed  on  the  corporation.*^^  It 
is  clear  that,  where  property  of  a  railroad  company  is  exempt 
from  taxation,  title  adverse  to  the  company  can  not  be  acquired 
by  a  sale  for  unpaid  taxes  levied  and  assessed  during  the  period 
of  exemption.*'"  It  is  held,  in  a  recent  case,  that  a  repealable  ex- 
emption from  state  taxation  was  withdrawn  by  the  enactment  of 
a  statute  which  directed  a  new  assessment  of  all  the  property  in 
the  state  and  expressly  declared  that  the  property  of  every  rail- 
road should  be  assessed  for  county  and  municipal  purposes,  ex- 
cept where  protected  by  an  irrepealable  exemption.^' 

§904  (751).  Remedies — Injunction.  —  We  believe  the  true 
rule  to  be  that,  where  the  tax  sought  to  be  enforced  is  illegal  and 
void,  its  enforcement  will  be  restrained  by  injunction  except  in 
cases  where  an  adequate  remedy  is  provided  by  statute.  The  rule 
we  have  stated  is,  as  we  believe,  supported  by  sound  principle,  and 
it  is  well  fortified  by  authority .'^^  We  can  see  no  reason  for  hold- 
er Wisconsin  &c.  R.  Co.  V.  Povv-  6- Wicomico  v.  Bancroft,  203  U. 
ers,  191  U.  S.  379,  24  Sup.  Ct.  107,  S.  112,  27  Sup.  Ct.  21,  51  L.  ed.  112. 
48  L.  ed.  229.  ^^  People    v.    Weaver,    100   U.    S. 

65  Powers  V.  Detroit  &c.  R.  Co..  539,  25  L.  ed.  705;  Pelton  v.  Na- 
201  U.  S.  543,  26  Sup.  Ct.  556,  50  tional  Bank,  101  U.  S.  143,  25  L.  ed. 
L.  ed.  860.  See  also  Bennett  v.  901;  Cummings  v.  National  Bank, 
Nichols,  9  Ariz.  138,  80  Pac.  392;  101  U.  S.  153,  25  L.  ed.  903;  Fargo 
Gulf  &  S.  I.  R.  Co.  v.  Adams,  90  v.  Hart.  193  U.  S.  490,  24  Sup.  Ct. 
^liss.  559,  45  So.  91;  post  §  926.  Of  498,  48  Law  ed.  761;  Woodruflf  v. 
course  it  may  be  otherwise  where  Perry,  103  Cal.  611,  37  Pac.  526; 
there  is  a  reserved  power  to  amend  Bramwell  v.  Gukeen,  2  Idaho  1069, 
or  repeal.  Post  §  928.  Excep-  29  Pac.  110;  Illinois  Cent.  &c.  Co. 
tion  remains  in  force  until  repeal-  v.  McLean  County,  17  111.  291 :  Rail- 
ing act  goes  into  effect.  Manistee  road  Co.  v.  Hodges,  113  111.  323: 
&c.  R.  Co.  v.  Com'rs  of  Railroads,  Keokuk  &c.  Bridge  Co.  v.  People. 
118  Mich.  349,  76  N.  W.  633.  185  111.  276,  56  N.  E.  1049;  Chicago 

66  Raquette  Falls  Land  Co.  v.  &c.  Co.  v.  Vollman,  213  Til.  60^.  73 
Hovt.  109  App.  Div.  119.  95  N.  Y.  N.  E.  360;  Small  v.  Lawrenceburg 
S.  1029.  &c.  Co.,  128  Ind.  231,  27  N.  E.  500; 


§904 


RAILROADS 


300 


in^  that  the  enforcement  of  an  illegal  tax  may  not  be  enjoined, 
nlthough  it  mav  be  void.  Even  a  void  proccedins;-  may  cloud  title 
and  do  injnrv  to  a  property  owncM".  and  there  is  no  remedy  except 
that  of  injunction,  which  will  effectively  prevent  or  redress  the 
injury.  It  seems  to  us  that  Avhere  the  entire  controversy  can  be 
settled  by  the  comprehensive  equity  remedy,  and  all  complica- 
tions prevented,  the  remedy  should  be  applied  rather  than  drive 
the  taxpayer  to  an  action  for  damages.  There  is  certainly  no  ob- 
jection to  the  employment  of  the  equitable  remedy  except  that 
which  grows  out  of  the  old  doctrine  established  when  the  strife 
between  courts  of  law  and  courts  of  equity  was  bitter,  and.  as  that 
doctrine  is  now  of  comparatively  little  practical  importance,  there 
k  reason  for  extending,  as  many  courts  are  doing,  the  remedy  of 
injunction.  We  think  it  wiser  to  restrain  by  injunction  than  to 
compel  an  action  against  the  officer  whose  duty  it  is  to  collect 
the  tax.     There  is,  however,  conflict  of  authority  upon  this  ques- 


Topeka  &c.  Co.  v.  Roberts.  45 
Kans.  360,  25  Pac.  854;  Stewart  v. 
Hovey,  45  Kans.  708,  26  Pac.  683; 
Chicago  &c.  Co.  v.  Board,  54  Kans. 
781,  39  Pac.  1039;  Arthur  v.  School 
District,  164  Pa.  St.  410,  30  Atl. 
299;  McTwiggan  v.  Hunter,  18  R. 
I.  776,  30  Atl.  362;  Cook  v.  Galves- 
ton &c.  Co.,  5  Tex.  Civ.  App.  644, 
24  S.  W.  544;  Schmidt  v.  Galveston 
&c.  Co.,  24  Tex.  Civ.  App.  547,  24 
S.  W.  547;  Kerr  v.  Woolly,  3  Utah 
456,  24  Pac.  831;  Crim  v.  Philippi. 
38  W.  Va.  122,  18  S.  E.  466;  Lef- 
ferts  V.  Board,  21  Wis.  697;  Board 
of  Assessors  of  Parish  of  New  Or- 
leans v.  Pullman  Co.,  60  Fed.  37. 
See  also  Meyer  v.  Wells  Fargo  &c. 
Co.,  223  U.  S.  298,  32  Sup.  Ct.  218, 
56  L.  ed.  445;  Ohio  Tax  Cases, 
232  U.  S.  576,  34  Sup.  Ct.  372,  58 
L.  ed.  738;  Illinois  Cent.  R.  Co.  v. 
Greene,  244  U.  S.  555,  37  Sup.  Ct. 
697.  61    L.  ed.  1309;   Louisville  &c. 


R.  Co.  v.  Greene.  244  U.  S.  522,  37 
Sup.  Ct.  683,  61  L.  ed.  1291.  If  the 
statute  expressly  provides  a  remedy 
for  relief  against  taxes  illegally  as- 
sessed and  the  remedy  is  adequate 
injunction  will  not  lie.  Albu- 
querque National  Bank  v.  Perea, 
147  U.  S.  87,  13  Sup.  Ct.  194,  37  L. 
cd.  91;  Bellevue  &c.  Co.  v.  Belle- 
vue,  39  Nebr.  876,  58  N.  W.  446; 
Thatcher  v.  Adams,  19  Nebr.  485, 
27  N.  W.  729;  Caldwell  v.  Lincoln 
City,  19  Nebr.  569,  27  N.  W.  647; 
Price  v.  Lancaster  County,  18 
Nebr.  199,  24  N.  W.  705;  Stanley 
V.  Supervisors,  121  U.  S.  535,  7  Sup. 
Ct.  1234,  30  L.  ed.  1000;  Robinson 
V.  Wilmington,  65  Fed.  856,  citing 
Kirtland  v.  Hotchkiss,  100  U.  S. 
491,  25  L.  ed.  558;  Shelton  v.  Piatt, 
139  U.  S.  591,  11  Sup.  Ct.  646,  35 
L.  ed.  273;  Tyler,  In  re.  149  U.  S. 
164,  13  Sup.  Ct.  785,  37  L.  ed.  689. 


301 


TAXATION'  OF  RAILROAD  PROPERTY 


§  OOf) 


tion."^  If  there  is  nothin.s^-  more  than  a  mere  irrcg-iilarity  in  the 
proceedings  injunction  will  not  lie/° 

§905   (751a).  .  Remedies — Injunction  —  Suit  by  taxpayer. — 

The  decisions  are  not  harmonious  on  the  question  of  right  of  an 
individual  taxpayer  to  institute  proceedings  to  restrain  or  compel 
action  of  tax  officers  where  the  interest  of  the  taxpayer  is  not 
different  from  that  of  other  taxpayers.  Some  courts  hold  that  it 
requires  some  individual  interest  distinct  from  that  which  be- 
longs to  every  inhabitant  of  a  town  or  county  to  give  the  party 
complaining  a  standing  in  court  where  an  alleged  delinquency  in 
the  administration  of  public  affairs  is  called  in  question  and  the 


^^  Hannewinkle  v.  Georgetown,  15 
Wall.  (U.  S.)  547,  548,  21  L.  ed. 
231;  Gregg  v.  Sanford,  65  Fed.  151 
City  Council  v.  Sayre,  65  Ala.  564 
Dodd  V.  Hartford,  25  Conn.  232 
Odlin  V.  Woodruff,  31  Fla.  160,  12 
So.  227,  22  L.  R.  A.  699;  Cook  Co. 
V.  Chicago  &c.,  35  III.  460;  Wil- 
liams V.  Mayor,  2  Gibbs  (Mich.") 
560:  Scribner  v.  Allen,  12  Minn. 
148;  Clarke  v.  Ganz,  21  Minn.  387; 
Sayre  v.  Tompkins,  23  Mo.  443; 
Barrow  v.  Davi.s,  46  Mo.  394;  Du- 
senbury  v.  Mayor  &c.,  25  N.  J.  Eq. 
295;  Laughlin  v.  Santa  Fe,  3  N. 
Mex.  264,  5  Pac.  817;  United  States 
Co.  V.  Grant,  137  N.  Y.  7,  32  N.  E. 
1005:  Mayor  &c.  v.  Davenport,  92 
N.  Y.  604;  Delaware  &c.  Co.  v.  At- 
kins. 121  N.  Y.  246,  24  N.  E.  319; 
Lucas  County  v.  Hunt,  5  Ohio  St. 
488;  Greene  v.  Mumford,  5  R.  I. 
472,  73  Am.  Dec.  79;  Bull  v.  Read, 

13  Grat.  (Va.)  78;  McClung  v.  Live- 
say,  7  W.  Va.  329;  Mills  v.  Glea- 
son,  11  Wis.  493;  Warden  v.  Board, 

14  Wis.  672;  Hixon  v.  Oneida 
County,  82  Wis.  515,  52  N.  W.  445; 
Harkness  v.  District,  1  McAr.  (D. 
C.)  121. 

'■o  Robinson    v.    Wilmington,    65 


Fed.  856;  ^Montgomery  v.  Sayre,  65 
Ala.  564;  Darling  v.  Gunn,  50  111. 
424;  Jones  v.  Sumner,  27  Ind.  510; 
Delphi  v.  Bowen,  61  Ind.  29;  Rick- 
etts  v.  Spraker,  77  Ind.  371;  Hunter 
Stone  Co.  v.  Woodard,  152  Ind. 
474,  53  N.  E.  947;  Litchfield  v.  Polk 
Co.,  18  Iowa  70;  Iowa  &c.  Co.  v. 
Carroll  County,  39  Iowa  151;  Smith 
V.  Osborn,  53  Iowa  474,  5  N.  W. 
681;  Gates  v.  Barrett,  79  Ky.  295; 
Mayor  &c.  v.  Baltimore  &c.  Co., 
21  Md.  50;  Loud  v.  Charlestowm, 
99  Mass.  208;  Whiting  v.  Mayor 
&c.  Boston,  106  Mass.  350;  Young- 
blood  V.  Sexton,  32  Mich.  406,  20 
Am.  Rep.  654;  Deane  v.  Todd,  22 
Mo.  90;  Sayre  v.  Tompkins,  23  Mo. 
443;  Rockingham  &c.  v. Portsmouth, 
52  N.  H.  17;  Covington  v.  Rock- 
ingham, 93  N.  Car.  134;  Simmons 
V.  ^lumford,  5  R.  I.  472,  73  Am. 
Dec.  79;  Sherman  v.  Leonard,  10 
R.  I.  469;  Douglass  v.  Harrisville, 
9  W.  Va.  162,  27  Am.  Rep.  548; 
Armstrong  v.  Taylor,  41  W.  Va. 
602.  24  S.  E.  993;  Porter  v.  Mil- 
waukee, 19  Wis.  625,  88  Am.  Dec. 
711;  Alexander  v.  Dennison,  2  Mc- 
Ar. (D.  C.)  562. 


§906 


RAILROADS 


302 


fact  of  owning  taxable  property  is  not  such  a  peculiarity  as  takes 
the  case  out  of  the  rule.'^  Elsewhere,  n()tal)ly  in  Iowa,  a  differ- 
ent rule  obtains,  and  there  an  individual  taxpayer  has  this  right, 
and,  as  intimated  in  the  preceding  section,  we  think  this  right 
exists  in  a  proper  case."-  There  is  also  authority  to  the  effect 
that  the  holder  of  mortgaged  bonds  of  a  railroad  company  has 
such  an  interest  in  the  property  as  entitles  him  to  maintain  a  suit 
to  enjoin  illegal  taxation  of  property  of  railroad  companies,  where 
a  proper  showing  is  made  or  the  refusal  of  mortgage  trustees  to 
prosecute  such  a  suit.'^ 

§906  (751b).  Inequality  no  ground  for  injunction. —  Kailmad 
taxes  will  not  be  enjoined  solely  because  other  property  in  the 
state  is  undervalued  where  the  statute  is  valid  and  this  inequality 
is  not  a  result  of  a  scheme  or  agreement  against  taxing  officers. 
To  authorize  this  remedy  it  must  be  shown  that  the  inequality 
was  caused  intentionally  and   systematically.''*     Neither   is  it  a 


71  Doolittle  V.  Broone  Co.,  18  N. 
Y.  155;  Roosevelt  v.  Draper,  23 
N.  Y.  318;  Craft  v.  Jackson  Co., 
5  Kans.  518;  Wyandotte  &c.  Bridge 
Co.  v.  Wyandotte  Co.,  10  Kans.  326. 
See  also  cases  cited  in  second  note 
to  last  preceding  section. 

72  Collins  V.  Davis,  57  Iowa  256, 
10  N.  W.  643;  State  v.  Smith,  7 
Iowa  244;  Collins  v.  Ripley  Co.,  8 
Iowa  129.  See  also  authorities 
cited  in  the  first  note  to  the  last 
preceding  section.  And  see,  as  to 
mandamus,  Loewenthal  v.  People, 
192  111.  222,  61  N.  E.  462;  State  v. 
Assessors,  52  La.  Ann.  223,  26  So. 
872;  People  v.  Wilson,  119  N.  V. 
515,  23  N.  E.  1064. 

73  Wicomico  v.  Bancroft,  139  Fed. 
977. 

74  Chicago  &c.  R.  Co.  v.  Babcock, 
204  U.  S.  585,  27  Sup.  Ct.  Z26,  51 
L.  ed.  6Z6\  Coulter  v.  Louisville 
&c.  R.  Co.,  196  U.  S.  599,  25  Sup. 


Ct.  324,  49  L.  ed.  615;  Louisville 
&c.  R.  Co.  V.  Coulter,  131  Fed.  282; 
Georgia  R.  &c.  Co.  v.  Wright,  125 
Ga.  589,  54  S.  E.  52;  Northern  Pac. 
R.  Co.  V.  State,  84  Wash.  510,  147 
Pac.  45,  Ann.  Cas.  1916E,  1166.  Un- 
less it  is  so  unequal  and  discrim- 
inating as  to  violate  the  law  of  the 
land.  Cummings  v.  Merchants' 
Nat.  Bank,  101  U.  S.  153,  25  L.  ed. 
903;  Semple  v.  Langlade  Co.,  75 
Wis.  354,  44  N.  W.  749.  But  where 
there  is  discrimination  against  the 
company  arising  out  of  systematic 
undervaluation  of  other  taxable 
property  the  state  collecting  offi- 
cers may  be  enjoined  by  a  federal 
court.  Greene  v.  Louisville  &c.  R. 
Co.,  244  U.  S.  499,  i7  Sup.  Ct.  67Z, 
(A  L.  ed.  1280,  Ann.  Cas.  1917E,  88: 
Illinois  Cent.  R.  Co.  v.  Greene,  244 
U.  S.  555.  37  Sup.  Ct.  697.  61  L.  ed. 
1309. 


no3 


TAXATION  OF  RAILROAD  PROPERTY 


§907 


ground  for  injunction  that  the  law  authorizing  taxation  of  rail- 
road property  at  the  average  rate  of  taxation  imposed  on  other 
property  in  the  states  does  not  make  any  provisions  for  an  equal- 
ization of  the  railroad  property  with  other  property,  if  the  statute 
expressly  names  the  time  and  place  for  sessions  of  the  assessing 
board  and  gives  interested  persons  a  right  to  be  heard,  and 
authorizes  the  board  to  correct  valuations.'^'  And  equity  will 
usually  refuse  relief  unless  it  is  shown  that  a  wrong  is  about  to 
be  inflicted  which  is  not  remediable  by  the  special  method,  if  any, 
pointed  out  by  statute,  or  that  there  is  no  adequate  remedy  at 
law.'" 

§907    (752).     Tender  of  amount  of  taxes  owing  is  required. — 

Upon  the  principle  that  he  who  asks  equity  must  do  equity,  a 
tender  of  the  amount  of  the  tax  owing  from  the  plaintiff  is 
usually,  if  not  invariably,  required."  Considerations  of  policy 
are  sometimes  urged,  and  with  force,  in  support  of  the  general 
rule  we  have  stated,'®  but  its  chief  support  is  the   elementary 


'■s  Michigan  Cent.  R.  Co.  v.  Pow- 
ers, 201  U.  S.  245,  26  Sup.  Ct.  459, 
50  L.  ed.  744. 

■=■6  See  State  Railroad  Tax  Cases, 
92  U.  S.  575,  23  L.  ed.  663:  Taylor 
V.  Louisville  &c.  R.  Co.,  88  Fed. 
350;  Houston  &c.  R.  Co.  v.  Pre- 
sidio County,  53  Tex.  518;  Steph- 
ens V.  Texas  &c.  R.  Co.,  100  Tex. 
177,  97  S.  W.  309. 

'"'■  Albuquerque  National  Bank  v. 
Perea,  147  U.  S.  87,  13  Sup.  Ct. 
194,  2>1  L.  ed.  91;  State  Railroad 
Tax  Cases,  92  U.  S.  575,  23  L.  ed. 
663;  People's  Nat.  Bank  v.  Marye, 
191  U.  S.  272,  24  Sup.  Ct.  68,  48 
L.  ed.  180;  Morrison  v.  Jacoby,  114 
Ind.  84,  14  N.  E.  546,  IS  N.  E.  806; 
Hagaman  v.  Commissioners,  19 
Kans.  394;  Smith  v.  Humphrey,  20 
Mich.  398;  Baily  v.  Atlantic  &c. 
Co.,  1  Cent.  L.  J.  502.  See  also 
Fargo   v.    Hart,    193    U.    S.   490,  24 


Sup.  Ct.  498,  48  L.  ed.  761;  Hewin 
V.  Atlanta,  121  Ga.  723,  49  S.  E.  765, 
67  L.  R.  A.  795;  Buck  v.  Miller, 
147  Ind.  586,  45  N.  E.  647,  11  L. 
R.  A.  384,  62  Am.  St.  436n;  Bundy 
V.  Summerland,  142  Ind.  92,  41  N, 
F.  322:  Grand  Rapids  &c.  R.  Co. 
v.  Auditor  General,  144  Mich.  11, 
107  N.  W.  1075;  Hacker  v.  Howe, 
72  Nebr.  385,  101  N.  W.  255;  Wead 
V.  Omaha,  IZ  Nebr.  321,  102  N.  W. 
67;  Douglas  v.  Fargo,  13  N.  Dak. 
467,  100  N.  W.  919.  But  compare 
Gunter  v.  Atlantic  Coast  Line  R. 
Co.,  200  U.  S.  273,  26  Sup.  Ct.  252, 
50  L.  ed.  477;  Meyer  v.  Wells  Fargo 
&  Co.,  223  U.  S.  298,  32  Sup.  Ct. 
218.  56  L.  ed.  445. 

'8  In  State  Railroad  Tax  Cases, 
92  U.  S.  575,  616,  23  L.  ed.  663,  it 
was  said:  "It  is  a  profitable  thing 
for  corporations  or  individuals 
whose  taxes  are  very  large  to  ob- 


§907 


RAILROADS 


304 


principle  referred  to  by  us.  A\'here  no  part  of  the  tax  is  due,  the 
reason  of  the  rule  fails,  and  no  tender  is  required.'"  So,  where  a 
statute  was  invalid  because  it  taxed  all  the  gross  receipts  of  an 
interstate  company,  includini;  that  on  interstate  commerce,  it 
was  held  that  a  tender  of  so  much  of  the  tax  as  might  have  fallen 
upon  receipts  from  the  commerce  wholly  within  the  state  was 
not  necessary.^" 


tain  a  preliminary  injunction  as  to 
all  their  taxes,  contest  the  case 
through  several  years'  litigation, 
and  when,  in  the  end,  it  is  found 
that  but  a  small  part  of  the  tax 
should  be  permanently  enjoined, 
submit  to  pay  the  balance.  This 
is  not  equity.  It  is  in  direct  vio- 
lation of  the  first  principles  of 
equity  jurisdiction.  It  is  not  sufifi- 
cient  to  say  in  the  bill  that  they 
are  ready  and  willing  to  pay  what- 
ever may  be  found  due.  They  must 
first    pay   what    is    conceded    to    be 


due,  or  what  can  be  seen  to  be 
due  on  the  face  of  the  bill,  or  be 
sliown  by  affidavits,  whether  con- 
ceded or  not,  before  the  prelimi- 
nary injunction  should  be  grant- 
ed." 

79  Walla  Walla  &c.  Bank  v.  Hun- 
gate,  62  Fed.  548;  Guidry  v.  Brous- 
sard,  32  La.  Ann.  924.  See  also 
Yocum  V.  First  Nat.  Bank,  144  Ind. 
272,  43  N.  E.  231. 

80  Meyer  v.  Wells  Fargo  &  Co., 
223  U.  S.  298,  32  Sup.  Ct.  218,  219, 
220,  50  L.  ed.  477. 


CHAPTER  XXXI. 


TAXATION  AS  AFFECTED  BY  THE  FEDERAL  CONSTFrUTlON 


Sec.  Sec. 

910.  Taxing    interstate    commerce      925. 

railroads. 

911.  Interstate      commerce  —  Ob-       926. 

struction  of. 

912.  Railroad  property  used  in  in-       927. 

terstate    commerce    is    tax- 
able by  the  states.  928. 

913.  Interstate    commerce  —  Taxa- 

tion    of    property    brought 

from     one     state     into     an-       929. 

other. 

914.  Railroad    in    more    than    one      930. 

state.  931. 

915.  Mileage   basis   of  valuation. 

916.  License  tax.  932. 

917.  Privilege     tax     on     interstate 

railroads.  933. 

918.  Privilege     tax     discriminated 

from  a  property  tax.  934. 

919.  Excise  tax. 

920.  Excise,    license    and    privilege      935. 

taxes — Review  of  recent  de- 
cisions. 936. 

921.  Tax  on  passengers  carried. 

922.  Tax  on  interstate  freight. 

923.  Tax  on  gross  receipts  of  in-      937. 

terstate  commerce  corpora- 
tions. 938. 

924.  Fees    for    the    right    to    be    a       939. 

corporation   not  taxes. 


AFunicipal  tax  as  compensa- 
tion  for   use   of  streets. 

Impairing  obligation  of  aeon- 
tract. 

Impairing  obligation  of  con- 
tracts— Tax  on  bonds. 

Exemption  of  railroad  prop- 
erty— Contract  —  Alteration 
of   charter. 

Due  process  of  law  in  tax 
proceedings. 

Equal  protection  of  the  laws. 

Equal  protection  of  the  laws, 
continued. 

Equal  protection  of  the  laws 
— Corporations  are  persons. 

Equal  protection  of  the  laws 
— What  is  a  denial  of. 

Fourteenth  amendment — Un- 
equal taxation — Generally. 

Classification  not  a  denial  of 
equal   protection. 

Fourteenth  amendment — Tax 
for  salaries  of  railroad  com- 
missioners. 

Corporations  deriving  rights 
from  the  United  States. 

Land   grants. 

Domestic  commerce. 


§910  (753).  Taxing  interstate  commerce  railroads. — The 
power  of  a  state  to  tax  property  of  all  kinds  and  classes  within 
its  territorial  limits  is  broad  and  comprehensive,  but  this  power, 
great  as  it  is,  is  not  unlimited.  The  commerce  clause  of  the  fed- 
eral constitution  restrains  this  power  and  limits  its  exercise.     It 


305 


^910 


RAILROADS 


306 


is  not  easy  to  define  the  extent  of  the  limitation  imposed  by  the 
federal  constitution.  It  is  safe,  however,  to  say  the  power  can 
not  be  so  exercised  as  to  obstruct  commerce  between  the  states, 
or  to  restrain  or  defeat  the  power  of  the  federal  congress  to 
resfulate  commerce.^ 


1  III  the  case  of  Brown  v.  Mary- 
laiuK  12  Wheat.  (U.  S.)  419,  6  L. 
ed.  678,  Chief  Justice  Marshall, 
speaking  of  the  taxing  power,  said: 
"We  admit  this  power  to  be  sa- 
cred. l)ut  can  not  admit  that  it  may 
be  so  used  as  to  obstruct  the  free 
exercise  of  a  power  given  to  con- 
gress. We  can  not  admit  that  it 
may  be  used  so  as  to  obstruct  or 
defeat  the  power  to  regulate  com- 
merce. Tt  has  been  observed  that 
tlie  power  remaining  with  the 
states  may  be  so  exercised  as  to 
come  in  conflict  with  those  vested 
in  congress.  When  this  happens, 
that  which  is  not  supreme  must 
yield  to  that  which  is  supreme. 
This  great  and  tmiversal  truth  is 
inseparable  from  the  nature  of 
things,  and  the  constitution  has 
applied  it  to  the  often  interfering 
powers  of  the  general  and  state 
governments,  as  a  vital  principle  of 
perpetual  operation.  It  results, 
necessarily,  from  this  principle, 
that  the  taxing  power  of  the  state 
must  have  some  limits."  In  the 
State  Freight  Tax  Case,  15  Wall. 
(U.  S.)  232,  21  L.  ed.  146,  Mr. 
Justice  Wayne  expressed  the  same 
general  doctrine  in  this  language: 
"Wliile  on  the  one  hand  it  is  of 
the  utmost  importance  that  the 
states  should  possess  the  power  to 
raise  revenue  for  all  the  purposes 
of  a  state  government,  bj'  anj^ 
means  and  in  any  manner  not  in- 
consistent with  the  powers  which 
the   people  of  the  state  have  con- 


icrrod  upon  tlic  general  govern- 
ment, it  is  equally  i:nportant  that 
tlic  domain  of  the  latter  should  be 
preserved  from  invasion  and  that 
no  state  legislation  should  be  sus- 
tained which  defeats  the  avowed 
purpose  of  the  federal  constitution, 
or  which  assumes  to  regulate  or 
control  subjects  committed  by  the 
constitution  exclusively  to  the  reg- 
ulation of  congress."  See  also  Os- 
l)orne  v.  State,  33  Fla.  162,  14  So. 
588,  25  L.  R.  A.  120,  39  Am.  St.  99; 
Barrett  v.  New  York,  232  U.  S.  14. 
34  Sup.  Ct.  203,  58  L.  ed.  483.  The 
authorities  are  collected  and  classi- 
fied, and  the  following  propositions 
laid  down  in  substance  in  Atlantic 
&c.  Tel.  Co.  V.  Philadelphia,  190 
U.  S.  160,  23  Sup.  Ct.  817,  47  L.  ed. 
995:  1.  The  power  of  congress  in 
proper  cases  is  exclusive.  2.  No 
state  can  compel  a  party,  whether 
individual  or  corporation,  to  pay 
for  the  privilege  of  engaging  in 
interstate  commerce.  3.  This  im- 
munity does  not  prevent  a  state 
from  imposing  ordinary  property' 
taxes  on  property  having  a  situs 
within  its  territory.  4.  The  fran- 
chise of  a  corporation  is,  as  a  part 
of  its  property,  subject  to  state 
taxation,  at  least  if  it  is  not  derived 
from  the  United  States.  Cited  and 
approved  in  United  States  Glue  Co. 
V.  Oak  Creek,  247  U.  S.  321,  38 
Sup.  Ct.  499,  62  L.  ed.  1135,  Ann. 
Cas.  1918E,  748.  See  also  St.  Louis 
itc.  R.  Co.  V.  Arkansas,  235  U.  S. 
350.  35  Sup.  Ct.  99,  59  L.  ed.  265. 


307 


TAXATION    UNDER    FEDERAL    CONSTITUTION 


§911 


§911    (754).     Interstate     commerce — Obstruction     of. — It     is 

settled  law  that,  under  the  guise  of  taxing  raih-oads,  a  state  can 
neither  obstruct  nor  regulate  commerce  between  the  states.  The 
power  to  regulate  interstate  commerce  is  in  the  federal  govern- 
ment, not  in  any  state,  so  that  if  the  tax  so  operates  as  to  regulate 
interstate  commerce  there  is  an  invasion  of  the  domain  of  the 
federal  government.  If  a  state  tax  operates  so  as  to  obstruct 
such  commerce,  then  the  statute  providing  for  levying  the  tax 
is  void,  since  no  state  can  impede  or  obstruct  commerce  between 
the  states.  The  mere  form  of  the  statute  is  not  of  controlling 
importance,  for  its  validity  depends  upon  its  operation  and 
effect."  The  general  principle  is  easily  understood,  but  there  is 
difficulty  in  applying  it.  Each  particular  case  stands,  in  a  great 
measure,  upon  its  own  facts,  and  whether  in  the  particular  case 
the  statute  obstructs  or  regulates  commerce  is  a  question  which 
is  not  always  easy  of  solution. 


2  State  Freight  Tax,  15  Wall.  (U. 
S.)  232,  272,  21  L.  ed.  146;  Com- 
merce V.  New  York,  2  Black.  (U. 
S.)  620,  17  L.  ed.  451;  Bank  Tax 
Case,  2  Wall.  (U.  S.)  200,  17  L.  ed. 
793;  Society  for  Savings  v.  Coite, 
6  Wall.  (U.  S.)  594,  18  L.  ed.  897; 
Provident  Institution  v.  Massachu- 
setts, 6  Wall.  (U.  S.)  611,  18  L.  ed. 
907.  In  Fairbank  v.  United  States, 
181  U.  S.  283,  21  Sup.  Ct.  648,  45 
L.  ed.  862,  it  is  held  that  a  stamp 
tax  imposed  on  a  foreign  bill  of 
lading  is  in  effect  a  tax  on  the 
property  and  invalid.  And  in 
Looney  v.  Crane  Co.,  245  U.  S.  178, 
38  Sup.  Ct.  85,  62  L.  ed.  230,  it  is 
held  that  permit  and  franchise 
taxes  imposed  on  foreign  corpo- 
rations engaged  in  both  interstate 
and  domestic  commerce,  when 
based  on  and  measured  by  the  cap- 
ital stock,  are  a  direct  burden  on 
interstate  commerce.  But  in  New 
York  v.  Reardon,  204  U.  S.  152,  27 


Sup.  Ct.  184,  190,  51  L.  ed.  415,  it 
is  held  that  a  tax  on  transfers  of 
stock  of  a  foreign  railway  company 
as  applied  to  a  sale  in  the  state 
between  two  non-residents,  is  valid. 
And  a  statute  measuring  a  tax  by 
capital  stock  representing  property 
within  the  state  though  the  entire 
capital  stock  represents  in  part 
property  outside  the  state  has  been 
upheld.  Kansas  City  &c.  R.  Co.  v. 
Botkin,  240  U.  S.  227,  36  Sup.  Ct. 
261,  60  L.  ed.  617.  See  generally 
as  to  license  taxes  held  an  inter- 
ference with  interstate  commerce 
under  the  circumstances.  Norfolk 
&c.  R.  Co.  V.  Sims,  191  U.  S.  441, 
24  Sup.  Ct.  151,  48  L.  ed.  254;  Mc- 
Call  V.  California,  136  U.  S.  104, 
10  Sup.  Ct.  881,  34  L.  ed.  391;  Cald- 
well V.  North  Carolina.  187  U.  S. 
622,  23  Sup.  Ct.  229,  47  L.  ed.  336: 
Barrett  v.  New  York,  232  U.  S.  14, 
34  Sup.  Ct.  203,  58  L.  ed.  483:  H.  K. 
^fnlford  Co.  v.  Currv,  163  Cal.  276. 


§  912 


RAILROADS 


308 


§  912  (755).  Railroad  property  used  in  interstate  commerce  is 
taxable  by  the  states. — The  fact  that  i)ropcrty  is  used  in  the  l)usi- 
ness  (»f  interstate  commerce  does  not  exonerate  it  from  taxation 
Ity  the  states.''  Property  within  the  state  may  ])e  taxed,  although 
it  may  he  employed  exclusively  in  interstate  traffic,  but  the  busi- 
ness of  interstate  commerce  itself  cannot  1)C  burdened  by  state 
taxes.  There  is  a  difference  between  taxing  the  business  done 
by  the  company  and  taxing  the  property  of  which  it  is  the  owner.* 


125  Pac.  236.  And  compare  Hey- 
mann  v.  Southern  R.  Co.,  203  U.  S. 
270,  27  Sup.  Ct.  104.  51  L.  ed.  178, 
and  other  liquor  cases  there  re- 
viewed. 

^Delaware      Railroad      Tax,      18 
Wall.    (U.   S.)   206,   232,  21    L.   ed. 
888:    Telegraph    Co.   v.    Texas,    105 
U.    S.    460,    464,    26    L.    ed.    1067; 
Gloucester    Ferry    Co.   v.    Pennsyl- 
vania, 114  U.  S.  196,  206,  5  Sup.  Ct. 
826,  29  L.  ed.  158;  Western  Union 
Telegraph  Co.  v.  Attorney-General 
of    Massachusetts,    125    U.    S.    530, 
549,  8  Sup.  Ct.  961,  31   L.  ed.  790; 
Marye  v.  Baltimore  &c.  R.  Co.,  127 
U.  S.  117,  124,  8  Sup.  Ct.  1037,  32 
T..    ed.    94;    Leloup   v.    Mobile,    127 
U.  S.  640,  649,  8  Sup.  Ct.  1380,  32 
L.  ed.   311;  American   Refrigerator 
Transit   Co.  v.  Hall,   174  U.  S.  70, 
19  Sup.   Ct.  599,  43  L.  ed.  899,  af- 
firming 24  Colo.  291,   51    Pac.  421, 
65    Am.   St.   223,   56    L.    R.   A.   89; 
United   States   Exp.   Co.  v.   Minne- 
sota, 223  U.  S.  335,  32  Sup.  Ct.  211, 
215,     56     L.     ed.     459;     Henderson 
Bridge  Co.  v.  Kentucky,  166  U.  S. 
150,  17  Sup.  Ct.  532,  41  L.  ed.  953; 
Sandford   v.    Poe,   69   Fed.   546,   60 
L.   R.  A.  641,  and   elaborate   note; 
McGuire  v.  Chicago  &c.  R.  Co..  131 
Iowa    340,    108    N.    W.    902;    Vera 
Chemical    Co.   v.    State,    78    N.    H. 
473.  102  Atl.  463. 

*  Piillman     Palace     Car     Co.     v. 


Pennsylvania,  141  U.  S.  18,  11  Sup. 
Ct.  876.  35  I.,  ed.  613,  46  Am.  & 
Eng.  R.  Cas.  236;  Pittsburgh  &c. 
R.  Co.  V.  Backus,  154  U.  S.  421,  14 
Sup.  Ct.  1114,  38  L.  ed.  1031;  Den- 
ver &c.  Co.  V.  Church,  17  Colo.  1, 
2^  Pac.  468,  31  Am.  St.  252;  People 
V.  State  Board,  166  N.  Y.  S.  62,  99 
Misc.  Rep.  532;  Pullman  &c.  Co.  v. 
Commonwealth,  107  Pa.  St.  156. 
.See  generally,  Postal  Tel.  Cable 
Co.  V.  Adams,  155  U.  S.  695,  696. 
•15  Sup.  Ct.  688,  39  E.  ed.  311: 
Adams  Express  Co.  v.  Ohio,  165 
U.  S.  194,  17  Sup.  Ct.  305,  41  L.  ed. 
683;  Western  Un.  Tel.  Co.  v.  Tag- 
gart,  141  Ind.  281,  40  N.  E.  1051; 
Dubuque  v.  Illinois  Cent.  R.  Co., 
39  Iowa  56;  Bain  v.  Richmond  &c. 
Co.,  105  N.  Car.  363.  11  S.  E.  311, 
8  L.  R.  A.  299,  and  note,  18  Am. 
St.  912;  Pittsburg  &c.  Co.  v.  Com- 
monwealth, 66  Pa.  St.  73,  5  Am. 
Rep.  344;  Pullman  &c.  Co.  v. 
Gaines,  3  Tenn.  Ch.  587.  Income 
taxes  on  the  net  income  of  corpo- 
rations, though  derived  largely 
from  interstate  transactions,  are 
not  a  direct  burden  on  interstate 
commerce  in  violation  of  the  con- 
stitution. United  States  Glue  Co. 
V.  Oak  Creek,  247  U.  S.  321,  38 
Sup.  Ct.  499,  62  E.  ed.  1135,  Ann. 
Cas.  1918E,  748;  Peck  v.  Lowe,  247 
U.  S.  165,  38  Sup.  Ct.  432,  62  L.  ed. 
1049. 


:J09 


TAXATION    UNDER    FEDERAL    C<  >XSTlTrTION 


912 


But  to  authorize  the  taxinjy  of  property  employed  in  interstate 
commerce,  it  is  necessary  that  it  should,  in  a  sense  at  least,  have 
its  situs  in  the  state  which  imposes  the  tax.  Property  merely 
passing-  through  the  state,  or  temporarily  there  while  in  actual 
use  for  interstate  commerce  purposes,  can  not  be  taxed. ^     The 


5  Hays  V.  Pacific  Mail  Steamsliip 
Co.,  17  How.  (U.  S.)  596,  15  L.  ed. 
254;  St.  Louis  v.  Ferry  Co.,  11 
Wall.  423,  20  L.  ed.  192;  Wiggins 
Ferry  Co.  v.  East  St.  Louis,  107 
U.  S.  365,  2  Sup.  Ct.  257,  27  L.  ed. 
419;  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.  196.  5  Sup.  Ct. 
826,  29  L.  ed.  158;  Pickard  v.  Pull- 
man Southern  Car  Co.,  117  U.  S. 
34,  46,  6  Sup.  Ct.  635,  29  L.  ed.  785; 
Tennessee  v.  Pullman  Southern  Car 
Co..  117  U.  S.  51,  6  Sup.  Ct.  643. 
29  L.  ed.  791;  State  v.  Stephens. 
146  Mo.  662,  48  S.  W.  929,  69  Am. 
St.  625;  Bain  v.  Richmond  &c.  R. 
Co.,  105  N.  Car.  363,  11  S.  E.  311. 
8  L.  R.  A.  299,  18  Am.  St.  912.  In 
Pullman's  Palace  Car  Co.  v.  Penn- 
sylvania, 141  U.  S.  18,  11  Sup.  Ct. 
676,  35  L.  ed.  613,  the  court  said: 
"The  cars  of  this  company  within 
the  state  of  Pennsylvania  are  em- 
ployed in  interstate  commerce,  but 
their  being  so  employed  does  not 
exempt  them  from  taxation  by  the 
state;  and  the  state  has  not  taxed 
them  because  of  their  being  so  em- 
ployed, but  because  of  their  being 
within  its  territory  and  jurisdiction. 
The  cars  were  continuously  and 
permanently  employed  in  going  to 
and  fro  upon  certain  routes  of 
travel.  If  they  had  never  passed 
beyond  the  limits  of  Pennsylvania 
it  could  not  be  doubted  that  the 
state  could  tax  them,  like  other 
property   within    its    borders,    not- 


witlistanding  they  were  employed 
in  interstate  commerce.  The  fact 
tliat.  instead  of  stopping  at  the 
state  boundary,  they  cross  that 
boundary  in  going  out  and  coming 
back,  can  not  afifect  the  power  of 
the  state  to  levy  a  tax  upon  them. 
The  state  having  the  right,  for  the 
purposes  of  taxation,  to  tax  any 
personal  property  found  within  its 
jurisdiction,  without  regard  to  the 
place  of  the  owner's  domicile, 
could  tax  the  specific  cars  which' 
at  a  given  moment  were  in  its  bor- 
ders. The  route  over  which  the 
cars  travel  extending  beyond  the 
limits  of  the  state,  particular  cars 
Tiiay  not  remain  within  the  state; 
but  the  company  has  at  all  times 
substantially  the  same  number  of 
cars  within  the  state,  and  continu- 
ously and  constantly  uses  there  a 
portion  of  its  property;  and  it  is  dis- 
tinctly found,  as  matter  of  fact,  that 
the  company  continuously,  through- 
out the  periods  for  which  these  taxes 
were  levied,  carried-  on  business  in 
Pennsylvania,  and  had  about  one 
hundred  cars  within  the  state.  The 
mode  which  the  state  of  Pennsyl 
vania  adopted  to  ascertain  the  pro- 
portion of  the  company's  property 
upon  which  it  should  be  taxed  in 
that  state  was  by  taking  as  a  basis 
of  assessment  such  proportion  of 
the  capital  stock  of  the  company 
as  the  number  of  miles  over  which 
it  ran  cars  within  the  state  bore  to 


§912 


RAILROADS 


310 


doctrine  we  have  stated  is  peculiarly  applicable  to  vessels 
traversing  navigable  waters,  but  we  suppose  it  must  apply  to  all 
the  agencies  of  interstate  commerce  where  it  is  clear  that  such 
agencies  are  temporarily  in  the  state  and  have  a  fixed  and  known 
situs  elsewhere.  We  do  not  mean,  of  course,  that  a  mileage  basis 
of  valuation  and  assessment  may  not  be  adopted  where  the  cor- 
poration owning  the  property  regularly  or  generally  uses  it  in  the 
state ;  what  we  mean  is  that  where  a  car  or  locomotive  is  brought 
into  a  state  for  a  purely  temporary  purpose,  and  is  owned  by  a 
railroad  company  which  does  not  regularly  or  generally  conduct 
business  in  that  state,  it  is  not  subject  to  taxation.  A  different 
rule  would  probably  obtain  if  the  car  or  locomotive  were  gen- 
erally, habitually,  or  regularly  used  in  the  state,  although  it  might 
not  permanently  be  kept  or  used  therein.**  Property,  even  of  a 
domestic  corporation,  can  not  be  taxed  if  it  is  permanently  out  of 
the  state,'^  but  it  is  otherwise  if  it  only  leaves  the  state  during 


the  whole  number  of  miles  in  that 
and  other  states  over  which  its 
cars  were  run.  This  was  a  just 
and  equitable  method  of  assess- 
ment; and,  if  it  were  adopted  by 
all  the  states  through  which  these 
cars  ran,  the  company  would  be 
assessed  upon  the  whole  value  of 
its  capital  stock,  and  no  more.  The. 
validity  of  this  mode  of  appropri- 
ating such  a  tax  is  sustained  by 
several  decisions  of  this  court  in 
.  cases  which  came  up  from  the  cir- 
cuit courts  of  the  United  States, 
and  in  which,  therefore,  the  juris- 
diction of  this  court  extends  to  the 
determination  of  the  whole  case, 
and  was  not  limited,  as  upon  writs 
of  error  to  tlie  state  courts,  to 
questions  under  the  constitution 
and  laws  of  the  United  States." 
See  also  City  of  Bessemer  v. 
Southern  Ry.  Co.,  157  Ala.  428,  48 
So.  103,  105  (citing  text). 

c  See  authorities  cited  in  notes  to 


last  preceding  section,  also  Union 
Refrigerator  Transit  Co.  v.  Lynch. 
177  U.  S.  149,  20  Sup.  Ct.  631.  44 
L.  ed.  708;  Marye  v.  Baltimore  &c. 
R.  Co.,  127  U.  S.  117,  8  Sup.  Ct. 
1037,  2>2  L.  ed.  94;  Reinhart  v.  Mc- 
Donald, 1(>  Fed.  403;  as  to  this  rule 
of  "average  habitual  use,"  and  the 
right  now  established  to  tax  as 
suggested  in  the  text.  See  also  Old 
Dominion  Steamship  Co.  v.  Vir- 
ginia, 198  U.  S.  299,  25  Sup.  Ct.  686. 
49  L.  ed.  1059;  Wisconsin  &c.  R. 
Co.  V.  Powers,  191  U.  S.  379,  24 
Sup.  Ct.  107,  48  L.  ed.  229;  Morrell 
Refrigerator  Car  Co.  v.  Common- 
wealth, 32  Ky.  L.  1383,  108  S.  W. 
926;  Baltimore  &c.  R.  Co.  v.  Com- 
monwealth, 177  Ky.  566,  198  S.  W. 

■^  Union  Refrigerator  Transit  Co. 
V.  Kentucky.  199  U.  S.  194,  26  Sup. 
Ct.  36,  50  L.  ed.  150;  Louisville  &c. 
Ferry  Co.  v.  Kentucky,  188  U.  S. 
385,  23  Sup.  Ct.  468,  47  L.  ed.  513; 


311 


TAXATION    T'NDER    FEDERAL   ('( )X.STlTTTION 


S913 


part  of  the  taxing  year,  for  "the  state  of  origin  remains  the 
permanent  situs  of  the  property  notwithstanding  its  occasional 
excursions  to  foreign  parts."* 

§913  (756).  Interstate  commerce — Taxation  of  property 
brought  from  one  state  into  another. — Where  property  is  brought 
from  one  state  into  another,  the  latter  state  being  its  destination, 
it  may  be  there  taxed. ^  This  must  l)e  the  rule,  otherwise  prop- 
erty might  entirely  escape  taxation.  The  doctrine,  as  declared 
by  the  Supreme  Court  of  the  United  States,  is  a  broad  one,  since 
it  authorizes  taxation  of  property  by  the  state  into  which  it  is 
brought,  although  taxes  were  paid  upon  it  in  the  state  from  which 
it  came.^"^     It  is,  as  w-e  suppose,  always  to  be  understood  that 


Delaware  &c.  R.  Co.  v.  Pennsj-l- 
vania.  198  U.  S.  341,  25  Sup.  Ct. 
669,  49  L.  ed.  1077.  See  also  Fargo 
V.  Hart.  193  U.  S.  490.  24  Sup.  Ct. 
498,  48  L.  ed.  761. 

8  New  York  &c.  R.  Co.  v.  Miller, 
202  U.  S.  584,  26  Sup.  Ct.  714,  717, 
50  L.  ed.  1155;  Ayer  &c.  Tie  Co.  v. 
Kentucky.  202  U.  S.  409,  26  Sup. 
Ct.  679,  50  L.  ed.  1082. 

9  Brown  v.  Houston,  114  U.  S. 
622,  5  Sup.  Ct.  1091,  29  L.  ed.  257. 
Citing  Woodruff  v.  Parham,  8 
Wall.  (U.  S.)  123,  19  L.  ed.  382; 
Brown  v.  Maryland,  12  Wheat.  (U. 
S.)  419,  6  L.  ed.  678;  Cooley  v. 
Board  of  Wardens,  12  How.  (U. 
S.)  299,  13  L.  ed.  996;  Welton  v. 
Missouri,  91  U.  S.  275,  23  L.  ed. 
347;  Pittsburgh  &c.  Coal  Co.  v. 
Bates,  156  U.  S.  577,  15  Sup.  Ct. 
415,  39  L.  ed.  539.  But  a  state  has 
no  jurisdiction  to  tax  property 
where  neither  it  nor  its  owner  is 
within  the  state  and  has  no  situs 
or  domicile  there.  Yost  v.  Lake 
Erie  &c.  Transp.  Co.,  112  Fed.  746; 
St.  Louis  V.  Wiggins  Ferry  Co.,  11 
Wall.  (U.  S.)  425,  20  L.  ed.  194; 
Young  V.  South  Tredegar  &c.   Co., 


85   Tcnn.   189.  2  S.   W.  202,  4  Am. 
St.  752. 

1"^  Tn  Brown  v.  Houston,  114  U. 
S.  622.  5  Sup.  Ct.  1091,  29  L.  ed. 
257,  the  court  said:  "Of  course  the 
assessment  should  be  a  general  one. 
and  not  discriminative  of  goods 
between  different  states.  The  tax- 
ing of  goods  coming  from  other 
states,  as  such  or  by  reason  of 
their  so  coming,  would  be  a  dis- 
criminating tax  against  them  as 
imports,  and  would  be  a  regulation 
of  interstate  commerce,  inconsist- 
ent with  that  perfect  freedom  which 
congress  has  seen  fit  should  remain 
undisputed.  But  if,  after  their  ar- 
rival in  the  state,  that  being  their 
destination  for  use  or  trade  —  if 
after  this  they  are  subjected  to  a 
general  tax  laid  on  all  alike,  we 
fail  to  see  how  such  a  tax  can  be 
deemed  a  regulation  of  commerce 
which  would  have  the  objectionable 
feature  referred  to."  The  court 
discriminated  the  case  from  that  of 
Woodruff  V.  Parham,  8  Wall.  (U. 
S.)  123,  19  L.  ed.  382,  and  marked, 
in  a  general  way,  the  line  of  dif- 
ference. 


5  914 


RAILROADS 


312 


taxes  can   not  be  so  levied  as  to  unlawfully  restrict  interstate 
commerce/^ 

§914  (757).  Railroad  in  more  than  one  state. — The  decisions 
affirm  that,  in  valuing  railway  property  for  taxation,  the  taxing 
officers  may  take  into  consideration  the  part  lying  in  an  adjoin- 
ing state  for  the  purpose  of  determining  the  value  of  the  entire 
line.  This,  unless  carefully  limited  to  the  portion  within  the 
state,  although  considered  in  relation  to  the  whole,  seems  to  us 
very  much  like  an  unjust  discrimination.  It  is  somewhat  difficult 
to  conceive  why  it  is  not  unequal  taxation  and  an  unwarrantable 
burden  upon  instrumentalities  of  interstate  commerce.  The 
owner  of  a  large  manufacturing  establishment  situated  in  one 
state  can  only  be  taxed  in  that  state,  although  the  principal  part 
of  his  business  may  be  done  in  another  state,  and  yet,  according 
to  the  decisions,  a  railway  company  may  be  taxed  in  two  or  more 
states.     The    question    is,    however,    settled    by    the    adjudged 


"  Moran    v.    New    Orleans,    112 
U.  S.  69,  5  Sup.   Ct.  38,  28  L.  ed. 
653,  citing  Sinnot  v.  Davenport,  22 
How.   (U.   S.)    227,   16   L.  ed.  243; 
Telegraph   Co.  v.  Texas,  105  U.  S. 
460,  26  L.  ed.   1067;   Case  of  State 
Freight  Tax,  15  Wall.  (U.  S.)  232, 
21   L.  ed.  146;   Crandall  v.  Nevada, 
6  Wall.   (U.  S.)  35,  18  L.  ed.  745; 
Osbdrne    v.    Mobile,    16    Wall.    (U. 
S.)  479,  21  L.  ed.  470;  Transporta- 
tion Co.  v.  Wheeling,  99  U.  S.  273, 
25   L.  ed.  412;   Morgan  v.  Parham, 
16  Wall.  (U.  S.)  471,  21  L.  ed.  303; 
Hays    V.    Tacific    Mail     Steamship 
Co.,  17  How.  (U.  S.)  596,  15  L.  ed. 
254;  Wiggins  Ferry  Co.  v.  East  St. 
Louis,    107   U.    S.   365,   2   Sup.    Ct. 
257,  27  L.  ed.  419.     Temporary  de- 
tention  of   grain    in   Iransit  without 
abandoning  the  original  movement 
beyond   the    state   limits,    does   not 
deprive    the    transportation    of    its 
character    of    interstate    shipment. 
Coe  V.  Errol,  116  U.  S.  517,  6  Sup. 


Ct.  475,  29  L.  ed.  715;  Kelley  v. 
Rhoads,  188  U.  S.  1,  23  Sup.  Ct. 
259,  47  L.  ed.  359;  General  Oil  Co. 
V.  Crain,  209  U.  S.  211,  28  Sup.  Ct. 
475,  52  L.  ed.  754.  But  where  such 
intention  is  abandoned  and  the 
grain  is  stored  in  an  elevator 
awaiting  sale  or  indefinitely,  it  is 
taxable  there  even  though  a  rail- 
road company  has  agreed  to  carry 
it  beyond  the  state  if  the  owner  so 
desires.  People  v.  Bacon,  243  HI. 
313,  90  N.  E.  686,  44  L.  R.  A.  (N. 
S.)  586,  227  U.  S.  504,  33  Sup.  Ct. 
299.  See  also  Susquehanna  Coal  Co. 
V.  South  Amboy,  228  U.  S.  665,  33 
Sup.  Ct.  712;  Globe  Elevator  Co.  v. 
Patterson,  134  Wis.  214,  114  N.  W. 
441.  And  see  generally  as  to  when 
tran.sportation  is  or  is  not  deemed 
to  be  terminated  or  so  interrupted 
as  to  render  the  goods  taxable,  note 
to  Merchants  Transfer  Co.  v.  Des 
Moines,  2  L.  R.  A.  (N.  S.)  662. 


313 


TAXATION    UNDER   FEDERAL   CONSTITUTION 


§914 


cases.'-     But  it  is  held  that  one  state  can  not  tax  a  franchise 
i;Tanted  by  another  state  and  having  its  situs  in  the  latter." 


12  Pittsburgh  &c.  R.  Co.  v.  Back- 
us, 154  U.  S.  421,  14  Sup.  Ct.  1114. 
38  T..  ed.  1031,  citing  State  Railroad 
Tax  Cases,  92  U.  S.  575,  23  T..  od. 
663;  Columbus  &c.  R.  Co.  v. 
Wright,  151  U.  S.  470,  14  Sup.  Ct. 
396,  38  L.  ed.  238;  Delaware  Rail- 
road Tax,  18  Wall.  (U.  S.)  206,  21 
L.  ed.  888;  Erie  R.  Co.  v.  Pennsyl- 
vania, 21  Wall.  (U.  S.)  492,  22  L. 
ed.  595;  Western  Union  Tel.  Co. 
V.  Attorney-General  of  Massachu- 
setts, 125  U.  S.  530,  8  Sup.  Ct.  961, 
31  L.  ed.  790;  Pullman  Palace  Car 
Co.  V.  Pennsylvania,  141  U.  S.  18, 
12  Sup.  Ct.  121,  35  L.  ed.  613: 
Charlotte  &c.  R.  Co.  v.  Gibbes,  142 
U.  S.  386,  12  Sup.  Ct.  255,  35  L.  ed. 
1051:  Franklin  County  v.  Nashville 
&c.  R.  Co.,  12  Lea  (Tenn.)  521. 
To  the  same  effect  is  the  decision 
in  Cleveland  &c.  R.  Co.  v.  Backus, 
154  U.  S.  439,  14  Sup.  Ct.  1122,  38 
T,.  ed.  1041.  See  also  State  v.  New 
York  &c.  R.  Co.,  60  Conn.  326,  22 
Atl.  765;  Adams  Express  Co.  v. 
Kentucky,  166  U.  S.  171,  17  Sup. 
Ct.  527,  41  L.  ed.  960;  State  v. 
United  States  Exp.  Co.,  114  Minn. 
346,  131  N.  W.  489,  Zl  L.  R.  A. 
(N.  S.)  1127,  affirmed  in  223  U.  S. 
335,  32  Sup.  Ct.  211,  56  L.  ed.  459; 
In  re  Assessment  of  Western 
Union  Tel.  Co.,  35  Okla.  626,  130 
Pac.  685.  It  is  evident  that  the 
rule  sanctioned  by  the  supreme 
court  must  lead  to  confusion  and 
that  under  it  double  taxation  of  a 
vicious  character  is  almost  un- 
avoidable, at  least  where  the  value 
of  the  different  parts  is  not  equally 
distributed  or  in  proportion  to  the 
mileage,  and,   as  a  matter  of  fact, 


it  seldom  is.  In  Pittsburgh  &c. 
Co.  v.  Backus,  154  U.  S.  439,  14 
Sup.  Ct.  1122,  38  L.  ed.  1041,  the 
court  says  that  "there  may  be  ex- 
ceptional cases,"  and  granting  this 
it  seems  difficult  to  see  how  double 
and  unequal  taxation  can  be  avoid- 
ed, since  so  much  is  left  to  the 
judgment  or  discretion  of  the  tax- 
ing officers  of  the  different  states 
through  which  the  railroad  runs. 
It  is  held,  however,  that  the  pre- 
sumption is  that  all  the  property  is 
part  of  the  plant  or  system  and 
that  all  the  property,  both  tangible 
and  intangible,  is  equally  distrib- 
uted throughout  its  mileage.  Atch- 
ison &c.  R.  Co.  V.  Sullivan,  173 
Fed.  456. 

i"'  Louisville  &c.  Ferry  Co.  v. 
Kentucky,  188  U.  S.  385,  23  Sup. 
Ct.  463,  47  L.  ed.  513.  Although 
the  general  rule  is  that  a  state  can 
not  tax  property  beyond  its  bor- 
ders, much  may  depend  upon  the 
circumstances  of  each  case,  and  in 
a  proper  case  it  may  measure  a  tax 
Avithin  its  authority  by  capital  stock 
which  in  part  represents  property 
outside  of  the  taxing  power  of  the 
state.  Kansas  City  &c.  R.  Co.  v. 
Bothni,  240  U.  S.  227,  Z(i  Sup.  Ct. 
261,  60  L.  ed.  617.  But  compare 
Southern  R.  Co.  v.  Greene,  216  U. 
S.  400,  30  Sup.  Ct.  287,  54  L.  ed. 
536;  Western  Union  Tel.  Co.  v. 
Kansas,  216  U.  S.  1,  30  Sup.  Ct. 
190,  54  L.  ed.  355.  But  a  state  can 
not  tax  property  of  a  foreign  in- 
terstate railway  company  outside 
of  its  jurisdiction.  Illinois  Cent. 
R.  Co.  v.  Greene.  244  U.  S.  555,  7^1 
Sup.  Ct.  697,  61  L.  ed.  1309. 


§  9ir^ 


n  AILROADS 


314 


§915  (758).  Mileage  basis  of  valuation. — The  ductriiu-  of  tlie 
court  of  last  resort  is  that  the  taxing  officers  may  make  a  \  ahia- 
tion  upon  a  mileage  basis  although  the  property  assessed  is  used 
as  an  instrumentality  of  commerce  between  the  states.'*  A  dis- 
tinction is  made  l)ct\\ecn  tiic  cases  which  den}'  the  right  of  a 
state  to  lay  a  tax  ui)on  the  l>usiness  of  interstate  commerce  itself 
and  those  which  affirm  that  a  tax  may  be  laid  on  property  within 
the  limits  of  the  state.  The  doctrine  is,  indeed,  extended,  as  we 
have  elsewhere  shown,  to  property  beyond  the  state  boundar- 
ies.^^    But  it  has  recently  been  held  that  interstate  commerce  is 


^4  Western  Union  Tel.  Co.  v. 
Massachusetts,  125  U.  S.  530,  8 
Sup.  Ct.  961,  31  L.  ed.  790;  Pull- 
man Palace  Car  Co.  v.  Pennsylva- 
nia, 141  U.  S.  18,  11  Sup.  Ct.  876, 
35  L.  ed.  613;  Maine  v.  Grand 
Trunk  R.  Co.,'  142  U.  S.  217,  12 
Sup.  Ct.  121,  163,  35  L.  ed.  994; 
Charlotte  &c.  Co.  v.  Gibbs,  142 
U.  S.  386,  12  Sup.  Ct.  255,  35  L.  ed. 
1051;  Pittsburgh  &c.  Co.  v.  Backus. 
154  U.  S.  421,  14  Sup.  Ct.  1114,  38 
L.  ed.  1031.  Sec  also  Western 
Union  Tel.  Co.  v.  Missouri,  190 
U.  S.  412,  23  Sup.  Ct.  730,  47  L.  ed. 
1116;  Fargo  v.  Hart,  193  U.  S.  490, 
24  Sup.  Ct.  498,  48  L.  ed.  761 ;  Com- 
monwealth V.  U.  S.  Exp.  Co.,  149 
Ky.  755,  149  S.  W.  1037,  Ann.  Cas. 
1914R,  196;  West  Shore  R.  Co.  v. 
State  Board,  82  N.  J.  L.  37,  81  Atl. 
351;  note  in  Ann.  Cas.  1916E,  1185. 

1^  In  the  case  of  Pullman  Palace 
Car  Co.  V.  Pennsylvania,  141  U.  S. 
18,  11  Sup.  Ct.  876,  35  L.  ed.  613,  it 
was  said:  "Much  reliance  is  also 
placed  by  the  plaintiff  in  error 
upon  the  cases  in  which  this  court 
has  decided  that  citizens  or  corpo- 
rations of  one  state  can  not  be 
taxed  by  another  state  for  a  license 
or   privilege  to  carry  on  interstate 


or  foreign  commerce  within  its 
limits.  But  in  each  of  those  cases 
the  tax  was  not  upon  the  property 
employed  in  the  business,  but  upon 
the  right  to  carry  on  the  business 
at  all,  and  was  therefore  held  to 
impose  a  direct  burden  upon  the 
commerce  itself.  IMoran  v.  New 
Orleans,  112  U.  S.  69,  74,  5  Sup. 
Ct.  38,  28  L.  ed.  653;  Pickard  v. 
Pullman  Southern  Car  Co.,  117 
U.  S.  34,  43,  6  Sup.  Ct.  635,  29  L. 
cd.  785;  Robbins  v.  Shelby  County 
Taxing   Dist.,    120   U.    S.   489,   497, 

7  Sup.  Ct.  592,  30  L.  ed.  694;  Le- 
loup  V.  Mobile,  127  U.  S.  640,  644. 

8  Sup.  Ct.  1380,  32  L.  ed.  311.  For 
the  same  reason,  a  tax  upon  the 
gross  receipts  derived  from  the 
transportation  of  passengers  and 
goods  between  one  state  and  other 
states  or  foreign  nations  has  been 
held  to  be  invalid.  Fargo  v.  Mich- 
igan, 121  U.  S.  230,  7  Sup.  Ct.  867, 
30  L.  ed.  888;  Philadelphia  &c. 
Steamship  Co.  v.  Pennsylvania,  122 
U.  S.  326,  7  Sup.  Ct.  1118,  30  L.  ed. 
1200.  The  tax  now  in  cjuestion  is 
not  a  license  tax  or  a  privilege  tax; 
it  is  not  a  tax  on  business  or  occu- 
pation; it  is  not  a  tax  on  or  because 
of  the  transportation   or   the  right 


315 


TAXATION    rXDEK    FEDERAL    CONSTITl'TION 


§916 


not  unlawfully  interfered  with  by  a  franchise  tax  on  a  domestic 
railway  corporation  because  no  deduction  is  allowed  from  the 
capital  stock,  taken  as  the  basis  of  the  tax,  notwithstanding  a 
considerable  proportion  of  the  rolling  stock  is  generally  absent 
from  the  state  in  the  usual  course  of  railway  business. ^^ 

§916  (759).  License  tax. — A  license  tax  imposed  upon  an  in- 
terstate railroad  for  carrying  on  interstate  business  is  invalid. 
Such  a  tax  is  not  a  tax  upon  property,  nor  is  it  the  exaction  of  a 
fee  for  the  privilege  of  becoming  a  corporation,  or  of  effecting  a 
consolidation  under  the  laws  of  the  state."     As  we  shall  pres- 


of  transit  of  persons  or  property 
tlirough  the  state,  to  other  states 
or  countries.  The  tax  is  imposed 
equally  on  corporations  doing  busi- 
ness within  the  state,  whether  do- 
mestic or  foreign,  and  whether  en- 
gaged in  interstate  coinmerce  or 
not.  The  tax  on  the  capital  of  the 
corporation  on  account  of  its  prop- 
erty within  the  state  is,  in  sub- 
stance and  eflfect,  a  tax  on  that 
property.  Gloucester  Ferry  Co.  v. 
Pennsylvania,  114  U.  S.  196,  209. 
5  Sup.  Ct.  826,  29  L.  ed.  158;  West- 
ern Union  Tel.  Co.  v.  Massachu- 
setts. 125  U.  S.  530,  552,  8  Sup.  Ct. 
961.  31  L.  ed.  790.  This  is  not  only 
admitted,  but  insisted  on  by  the 
plaintifif  in   error." 

16  New  York  &c.  R.  Co.  v.  Mil- 
ler, 202  U.  S.  584,  26  Sup.  Ct.  714, 
50  L.  ed.  1155.  Under  the  Ken- 
tucky statute  controlled  mileage 
within  and  without  the  state,  and 
not  operated  mileage,  is  what  must 
be  considered  in  valuing  the  in- 
tangible property  of  an  interstate 
railroad,  and  so  much  of  the  mile- 
age as  is  not  represented  by  stock 
should  be  included,  but,  to  avoid 
double  taxation,  then  must  be  de- 


ducted from  the  Kentucky  appor- 
tionment of  value  of  stock  the 
value  of  the  Kentucky  portion  of 
mileage.  Louisville  &c.  R.  Co.  v. 
Greene,  244  U.  S.  522,  Z1  Sup.  Ct. 
68.3.  61  L.  ed.  1291,  Ann.  Cas. 
1917E.  97. 

1'  McCall  V.  California,  136  U.  S. 
104,  10  Sup.  Ct.  881,  34  L.  ed.  391; 
Norfolk  &c.  R.  Co.  v.  Pennsylva- 
nia, 136  U.  S.  114,  10  Sup.  Ct.  958, 
34  L.  ed.  394;  Leloup  v.  Mobile, 
127  U.  S.  640,  8  Sup.  Ct.  1380,  32 
L.  ed.  311;  Crutcher  v.  Kentucky, 
141  U.  S.  47,  11  Sup.  Ct.  851,  35 
L.  ed.  649;  Inman  Steamship  Co. 
V.  Tinker,  94  U.  S.  238,  24  L.  ed. 
118;  Telegraph  Co.  v.  Texas,  105 
U.  S.  460,  26  L.  ed.  1067;  Norfolk 
&c.  R.  Co.  V.  Pennsylvania,  136 
U.  S.  114,  10  Sup.  Ct.  958,  34  L.  ed. 
394;  Brennan  v.  Titusville,  153  U. 
S.  289,  14  Sup.  Ct.  829,  38  L.  ed. 
719;  Robbins  v.  Shelby  County 
Taxing  Dist.,  120  U.  S.  489,  7  Sup. 
Ct.  592,  30  L.  ed.  694;  Lyng  v. 
Michigan,  135  U.  S.  161,  10  Sup. 
Ct.  725,  34  L.  ed.  150;  Asher  v. 
Texas.  128  U.  S.  129,  9  Sup.  Ct.  1, 
32  L.  ed.  368;  Stoutenburgh  v. 
Hennick,  129  U.  S.   141,  9  Sup.  Ct. 


J  916 


KAILROADS 


316 


ently  show,  a  privileg'e  tax  can  not  be  imposed,  and  we  regard  a 
license  tax  as  substantially  the  same  as  a  privilege  tax.  but  a  de- 
cision in  regard  to  what  is  called  an  excise  tax  has  produced  some 
confusion.^**  A  license  tax,  assigning  to  the  term  license  tax  the 
meaning  generally  given  by  the  authorities,  and  this  is  the  mean- 
mg  in  which  we  employ  the  term,  is  a  tax  imposed  as  a  condition 
of  permitting  business  to  be  conducted  within  the  state,  and 
hence  is  a  tax  upon  commerce  between  the  states.  But  a  fran- 
chise tax  on  a  railroad  company  for  carrying  on  a  cab  service 
wholly  within  the  taxing  state,  for  the  purpose  of  conveying  its 
passengers  to  and  from  its  ferry  landing,  the  charges  for  which 
are  entirely  separate  from  those  for  its  railroad  and  interstate 
transportation,  is  held  valid,  and  not  a  burden  on  interstate  com- 
merce.^^ 


256,  32  L.  ed.  dZI.  In  the  case  of 
Crutcher  v.  Commonwealth,  141  U. 
S.  47,  11  Sup.  Ct.  851,  35  L.  ed. 
649,  the  court  said:  "We  have  re- 
peatedly decided  that  a  state  law 
is  unconstitutional  which  requires 
a  party  to  take  out  a  license  for 
carrying  on  interstate  commerce, 
no  matter  how  specious  the  pre- 
text may  be  for  imposing  it."  This 
is  quoted  and  approved  in  Western 
Union  Tel.  Co.  v.  Kansas,  216  U.  S. 
1,  30  Sup.  Ct.  190,  195,  54  L.  ed. 
355.  In  the  case  of  Brennan  v. 
Titusville,  153  U.  S.  289,  14  Sup. 
Ct.  829,  38  L.  ed.  720,  the  court 
said:  "The  case  of  Ficklen  v. 
Shelby  County  Taxing  Dist.,  145 
U.  S.  1,  12  Sup.  Ct.  810,  Z(i  L.  ed. 
601,  is  no  departure  from  the  rule 
of  decision  so  firmly  settled  by  the 
prior  decisions."  Sec  also  Atlantic 
&c.  Tel.  Co.  V.  Philadelphia,  190 
U.  S.  160,  23  Sup.  Ct.  817,  47  L.  ed. 
995.  State  may,  however,  impose 
on  foreign  corporation  for  privi- 
lege of  doing  business  a  different 
tax   from  that  on   domestic  corpo- 


rations. Cheney  Bros.  Co.  v.  Mas- 
sachusetts, 246  U.  S.  147,  38  Sup. 
Ct.  295,  62  L.  ed.  632:  Kansas  City 
&c.  R.  Co.  V.  Stiles,  242  U.  S.  Ill, 
2>1  Sup.  Ct.  58,  61  L.  ed.  176;  In- 
ternational Paper  Co.  v.  Massachu- 
setts, 246  U.  S.  135,  38  Sup.  Ct. 
292,  62  L.  ed.  624. 

^s  Maine  v.  Grand  Trunk  &c.  Co., 
142  U.  S.  217.  12  Sup.  Ct.  163,  35 
L.  ed.  994.  See  also  New  York 
&c.  R.  Co.  V.  Pennsylvania,  158 
U.  S.  431,  15  Sup.  Ct.  896,  39  L.  ed. 
1043;  Osborne  v.  Florida,  164  U.  S. 
650,  17  Sup.  Ct.  214,  41  L.  ed.  586; 
State  V.  Galveston  &c.  R.  Co.,  100 
Tex.  153,  97  S.  W.  71. 

19  New  York  v.  Knight,  192  U.  S. 
21,  24  Sup.  Ct.  202,  48  L.  ed.  325. 
In  the  course  of  the  opinion  it  is 
said:  "Wherever  a  separation  in 
fact  exists  between  transportation 
service  wholly  within  the  state  and 
that  lictwcen  states,  a  like  separa- 
tion may  be  recognized  between 
the  control  of  the  state  and  that 
of  the  nation.  Osborne  v.  Florida, 
164  U.  S.  650,  17  Sup.  Ct.  214,  41 


aiT 


TAXA'i'iox   I  \i)i;k  ki;i)i:i{al  constitition 


§!)17 


§917  (760).  Privilege  tax  on  interstate  railroads. —  IMic 
settled  rule  th;it  ;l  state  has  no  power  to  regulate  or  burden  inter- 
state commerce  precludes  a  state  from  taxing  a  railrcjad  company 
for  the  privilege  of  conducting  the  business  of  interstate  com- 
merce within  its  territorial  limits.  Exacting  a  license  from  such 
companies,  as  a  condition  precedent  to  the  right  to  do  business 
in  the  state,  is,  it  seems  to  us.  substantially  the  same  thing  as 
imposing  a  tax  upon  the  privilege  of  doing  business  in  the  state, 
but  there  is  a  shade  of  difference  between  the  two  classes  of  cases. 
The  attempt  to  restrict  or  regulate  interstate  commerce  is  always 
abortive  no  matter  in  what  form  it  is  made,  but  the  difficulty  is 
to  determine  what  is  a  restriction  or  regulation  and  what  is  a 
property  tax.-° 


L.  ed.  586;  Pullman  Co.  v.  Adams, 
189  U.  S.  420,  23  Sup.  Ct.  494,  47 
L.  ed.  877."  See  also  Detroit  &c. 
R.  Co.  V.  Interstate  Commerce 
Comm.,  74  Fed.  803,  167  U.  S.  633, 
17  Sup.  Ct.  986,  42  L.  ed.  306;  Bal- 
timore &c.  R.  Co.  V.  Common- 
wealth, 177  Ky.  566,  198  S.  W.  35. 

-"  Pickard  v.  Pullman  Southern 
Car  Co.,  117  U.  S.  34.  6  Sup.  Ct. 
635.  29  L.  ed.  785,  citing  Almy  v. 
California,  24  How.  (U.  S.)  169, 
16  L.  ed.  644;  Woodruff  v.  Parham, 
8  Wall.  (U.  S.)  123,  138,  19  L.  ed. 
382;  Crandall  v.  Nevada,  6  Wall. 
(U.  S.)  35,  18  L.  ed.  745;  State 
l-reight  Tax  Case,  15  Wall.  (U.  S.) 
232,  21  L.  ed.  146:  Railroad  Co.  v. 
^[aryland,  21  Wall.  (U.  S.)  456,  22 
L.  ed.  678;  Head  Money  Cases,  112 
U.  S.  580,  5  Sup.  Ct.  247,  28  L.  ed. 
798;  Guy  v.  Baltimore,  100  U.  S. 
434.  25  L.  ed.  743:  Moran  v.  New 
Orleans,  112  U.  S.  69,  5  Sup.  Ct. 
38,  28  L.  ed.  653.  See  Tennessee 
V.  Pullman  Southern  Car  Co.,  117 
U.  S.  51,  6  Sup.  Ct.  643,  29  L.  ed. 
791;  Allen  v.  Pullman's  Palace  Car 
Co..  191   U.  S.  171,  24  Sup.  Ct.  39, 


48  L.  ed.  134;  People  v.  Wemple, 
138  N.  Y.  1,  33  N.  E.  720,  19  L.  R. 
A.  694,  with  which  compare  People 
V.  Wemple,  131  N.  Y.  64,  29  N.  E. 
1002.  27  Am.  St.  542,  and  People 
V.  Knight,  171  N.  Y.  354,  64  N.  E. 
152,  98  Am.  St.  610.  The  decision 
ill  tiie  case  of  Pullman  &c.  Co.  v. 
GaiiH's,  3  Tenn.  Ch.  587,  was  over- 
ruled or  rather  reversed  in  the 
case  of  Tennessee  v.  Pullman 
Southern  Car  Co.,  117  U.  S.  51,  6 
Sup.  Ct.  643,  29  L.  ed.  791.  See 
also  Pullman  &c.  Co.  v.  Nolan,  22 
Fed.  276.  In  the  paragraph  which 
follows  we  have  referred  to  a  case 
which  discriminates  between  a 
property  tax  and  a  privilege  tax, 
and  it  must  be  confessed  that  the 
distinction  made  in  that  case  is  a 
very  fine  one,  and  much  that  is 
there  said  is  not  easily  harmonized 
with  rulings  in  other  cases.  The 
Supreme  Court  of  the  United 
States  has  often  stated  the  general 
rule  and  commented  upon  the  dif- 
ficulty of  determining  what  are  le- 
gitimate attempts  to  exert  the  tax- 
ing   power    of    the    state    and    at- 


v})18 


I?AILR()ADS 


•MS 


§918  (761).  Privilege  tax  discriminated  from  a  property  tax, 
— A  statute  laying  a  tax  on  property  as  property,  where  the  prop- 
erty is  within  the  state,  does  not  violate  the  federal  constitution, 
but  a  privilege  tax  is  not,  as  we  have  seen  in  the  preceding  sec- 
tion, a  property  tax.  Whether  the  tax  is  laid  upon  property  or 
imposed  upon  a  corporation  for  the  i)rivilege  of  conducting  busi- 
ness in  the  state  is  to  be  determined  from  the  operation  and 
practical  effect  of  the  state  statute,  and  not  from  its  mere  form. 
The  distinction  between  a  privilege  tax  and  a  property  tax  is  a 
subtle  one,  and  it  is  not  easy  to  plainly  mark  the  line  which 
separates  thcm.-^     As  already  intimated,  it  is  difficult  to  deter- 


tempts,  on  the  other  hand,  under 
the  guise  of  taxation,  to  impose 
real  burdens  on  interstate  com- 
merce. United  States  Exp.  Co.  v. 
Minnesota,  223  U.  S.  335,  32  Sup. 
Ct.  211,  215,  56  L.  ed.  459;  Galves- 
ton &c.  R.  Co.  V.  Texas,  210  U.  S. 
217,  28  Sup.  Ct.  638,  639,  640,  52 
L.  ed.  1031. 

21  The  question  received  consid- 
eration in  the  case  of  the  Postal 
Tel.  Cable  Co.  v.  Adam,  155  U.  S. 
688,  IS  Sup.  Ct.  268,  39  L.  ed.  311. 
where  it  was  held  that  a  tax  of  a 
designated  sum  per  mile  of  tele- 
graph wire  in  the  state  was  a  tax 
on  property  and  not  a  mere  privi- 
lege tax.  The  court  used  this  lan- 
guage: "As  pointed  out  by  Mr. 
Justice  Field  in  Horn  Silver  Min. 
Co.  V.  New  York,  143  U.  S.  305, 
12  Sup.  Ct.  403,  36  L.  ed.  164,  the 
right  of  a  state  to  tax  the  fran- 
chise or  privilege  of  being  a  cor- 
poration as  personal  property  has 
been  repeatedly  recognized  by  this 
court,  and  this,  whether  the  cor- 
poration be  domestic  or  a  foreign 
corporation,  doing  business  by  its 
permission  within  the  state.  But 
a    state    can   not    exclude   from    its 


limits  a  corporation  engaged  in  in- 
terstate or  foreign  commerce,  or  a 
corporation  in  the  employment  of 
the  general  government,  either  di- 
rectly in  terms  or  indirectly  by  the 
imposition  of  inadmissible  condi- 
tions. Nevertheless  the  state  may 
subject  it  to  such  property  taxation 
PS  only  incidentally  afifects  its  oc- 
cupation, as  all  business,  whether 
of  individuals  or  corporations,  is 
affected  by  common  governmental 
burdens.  .Ashley  v.  Ryan,  153"  U. 
S.  436,  14  Sup.  Ct.  865,  38  L.  ed. 
773,  and  cases  cited.  Doubtless  no 
state  could  add  to  the  taxation  of 
property  according  to  the  rule  of 
ordinary  property  taxation,  the 
burden  of  a  license  or  other  tax  or 
the  privilege  of  using,  constructing 
or  operating  an  instrumentality  of 
interstate  or  international  com- 
merce or  for  the  carrying  on  of 
such  commerce;  but  the  value  of 
property  results  from  the  use  to 
which  it  is  put  and  varies  with  the 
l)rofitableness  of  that  use,  and  by 
whatever  name  the  exaction  may 
be  called,  if  it  amounts  to  no  more 
than  the  ordinary  tax  upon  prop- 
erty, or  a  just  equivalent  therefor, 


319 


TAXATION   UNDER    FEDERAL    CONSTITUTION 


§U18 


mine  the  exact  state  of  the  law  upon  this  subject,  and  to  reconcile 
all  the  decisions  of  the  Supreme  Court  of  the  United  States.  This 
is  shown  in  several  recent  cases  hy  the  fact  that  different  judges 
took  different  views. ^^  It  may  be  that,  as  to  local  business. 
M'hich  the  company  is  permitted  to  do  or  not  to  do,  at  its  own 
(>l)tion,  an  interstate  company  may  be  made  to  pav  for  the 
priviles^'e  if  it  chooses  to  exercise  it;-''  but  we  think  it  can  not  thus 


ascertained  by  reference  thereto,  it 
is  not  open  to  attack  as  inconsist- 
ent with  the  constitution.  Cleve- 
land &c.  R.  Co.  V.  Backus,  154 
U.  S.  439,  445.  14  Sup.  Ct.  1122. 
38  L.  ed.  1041.  The  method  of 
ta.xation  by  'a  tax  on  privileges' 
has  been  determined  by  the  su- 
preme court  of  Mississippi  to  be  in 
harmony  with  the  constitution  of 
that  state,  and  that  'where  the  par- 
ticular arrangement  of  taxation, 
provided  by  legislative  wisdom, 
may  be  accounted  for  on  the  as- 
sumption of  compromising  or  com- 
muting for  a  just  equivalent,  ac- 
cording to  the  determination  of  the 
legislature,  in  the  general  scheme 
of  taxation,  it  will  not  be  con- 
demned by  the  courts  as  violative 
of  the  (state)  constitution.'  Vicks- 
burg  Bank  v.  Worrell,  61  Miss.  47, 
7  So.  219.  In  that  case  privilege 
taxes  imposed  on  bank  of  deposit 
or  discount,  which  varied  with  the 
n mount  of  capital  stock  or  assets, 
and  were  declared  to  be  'in  lieu  of 
all  other  taxes,  state,  county  or 
municipal,  upon  the  shares  and  as- 
sets of  said  bank,'  came  under  re- 
A-iew,  and  it  was  decided  that  the 
privilege  tax,  to  be  effectual  as  a 
release  from  liability  for  all  other 
taxes,  must  be  measured  by  the 
capital  stock,  and  entire  assets  or 
wealth   of  the  bank,  and  that  real 


estate  bought  witli  funds  of  tlie 
l)ank  was  exempt  from  the  ordi- 
nary ad  valorem  taxes,  but  was 
part  of  the  assets  of  the  bank  to 
be  considered  in  fixing  the  basis 
of  its  privilege  tax." 

--  In  State  v.  Chicago  &c.  R.  Co., 
128  Wis.  449,  108  N.  W.  594,  a 
majority  of  the  court  held  that  an 
exaction  tax  based  on  the  business 
of  the  road,  in  lieu  of  exemption 
from  ordinary  taxation,  was  valid 
and  not  a  tax  on  property.  But  a 
minority  dissented  and  held  it  was 
a  tax  on  property.  See  also  Dela- 
ware &c.  R.  Co.  V.  Pennsylvania, 
198  U.  S.  341,  25  Sup.  Ct.  669,  49 
L.  ed.  1077.  So,  in  State  v.  Galves- 
ton &c.  R.  Co.,  100  Tex.  153,  97 
S.  W.  71  (reversed  in  28  Sup.  Ct. 
638  with  four  justices  dissenting), 
the  supreme  court  of  Texas  held 
such  a  tax  an  occupation  tax  and 
valid,  whereas  the  civil  court  of 
appeals  had  held  the  other  way  in 
93  S.  W.  436. 

23  Pullman  Co.  v.  Adams,  189 
U.  S.  420,  23  Sup..Ct.  494,  47  L.  ed. 
877;  Osborne  v.  Florida,  164  U.  S. 
650,  17  Sup.  Ct.  214,  41  L.  ed.  586. 
See  also  S.  S.  White  Dental  Mfg. 
Co.  v.  Commonwealth,  212  Mass. 
35,  98  N.  E.  1056,  Ann.  Cas.  1913C, 
804:  State  v.  Northern  Express  Co., 
80  Wash.  309,  141  Pac.  751. 


RAILROADS 


820 


be  made  to  ])ay  lor  carrying'  on  interstate  commerce,  and  this  is 
certainly  true  as  to  federal  corporations.-* 

§  919  (762).  Excise  tax. — The  court  of  last  resort  has  adjudg^- 
ed  that  an  excise  tax  may  be  imposed  upon  an  interstate  railroad 
com|)any.  The  cases  denying  the  power  to  levy  a  privilege  tax 
are  not  expressly  denied,  but  it  is  held  that  a  state  is  not  preclud- 
ed from  levying  an  excise  tax.-^     We  suppose  that  if  a  state,  under 


24  State  V.  Texas  &c.  R.  Co.,  100 
Tex.  279,  98  S.  W.  834.  See  also 
Butler  Bros.  Shoe  Co.  v.  U.  S. 
Rubber  Co.,  156  Fed.  1,  45  So.  91; 
and  compare  State  v.  Northern  Ex- 
press Co.,  80  Wash.  309,  141  Pac. 
751:  Williams  v.  Talladega,  226  U. 
S.  404,  33  Sup.  Ct.  116,  57  L.  ed. 
275. 

-"'  In  the  case  of  Maine  v.  Grand 
Trunk  R.  Co.,  142  U.  S.  217,  12 
Sup.  Ct.  163,  35  L.  ed.  994,  the 
court  said:  "The  tax,  for  the  col- 
lection of  which  this  action  is 
brought,  is  an  excise  tax  upon  the 
defendant  corporation  for  the  priv- 
ilege of  exercising  its  franchises 
within  the  state  of  Maine.  It  is 
so  declared  in  the  statute  which 
imposes  it:  and  that  a  tax  of  this 
character  is  within  the  power  of 
the  state  to  levy  there  can  be  no 
question.  The  designation  does  not 
always  indicate  merely  an  inland 
imposition  or  duty  on  the  con- 
sumption of  commodities,  but  often 
denotes  an  impost  for  a  license  to 
pursue  certain  callings,  or  to  deal 
in  special  commodities,  or  to  ex- 
ercise particular  franchises.  It  is 
used  more  frequently,  in  this  coun- 
try, in  the  latter  sense  than  in  any 
other.  The  privilege  of  exercising 
the  franchises  of  a  corporation 
within   a   state   is    generally  one   of 


value,  and  often  of  great  value, 
and  the  subject  of  earnest  conten- 
tion. It  is  natural,  therefore,  that 
the  corporation  should  be  made  to 
bear  some  proportion  of  the  bur- 
dens of  government.  As  the  grant- 
ing of  the  privilege  rests  entirely 
in  the  discretion  of  the  state, 
whether  the  corporation  be  of  do- 
mestic or  foreign  origin,  it  may  be 
conferred  upon  such  conditions, 
pecuniary  or  otherwise,  as  the 
state,  in  its  judgment,  may  deem 
most  conducive  to  its  interest  or 
polic}-.  It  maj'  require  the  paj^- 
ment  into  its  treasury,  each  year, 
of  a  specific  sum,  or  may  appor- 
tion tha  amount  exacted  according 
to  the  value  of  the  business  per- 
mitted, as  disclosed  by  its  gains 
or  receipts  of  the  present  or  past 
years.  The  character  of  the  tax, 
or  its  validit}',  is  not  determined 
bj'  the  mode  adopted  in  fixing  its 
amount  for  any  specific  period,  or 
the  times  of  its  payment.  The 
whole  field  of  inquiry  into  the  ex- 
tent of  revenue  from  sources  at 
the  command  of  the  corporation  is 
open  to  the  consideration  of  the 
state  in  determining  what  may  be 
justly  exacted  for  the  privilege. 
The  rule  of  apportioning  the  charge 
to  the  receipts  of  the  business 
would    seem    to   be   eminently   rea- 


:j21 


TAXATION'    UNDER    FEDERAL    COXSTITCTION 


§919 


the  guise  of  imposing  an  excise  tax,  should  levy  a  direct  priv- 
ilege tax,  the  statute  providing  for  such  a  tax  would  be  ineffec- 
tive. The  difference  between  an  excise  tax  of  the  character  con- 
tained in  the  case  referred  to  in  the  note  is  not  a  very  plain  one, 
nnd  there  is,  it  seems  to  us,  great  difificulty  in  giving  the  doctrine 
of  the  majority,  in  the  case  mentioned,  practical  effect.  We  ven- 
ture to  say,  and  with  utmost  deference,  that  the  doctrine  of  the 
minority  opinion  is  the  sounder  and  better  one,^*'  at  least  if  the 
tax  was  in  efifect  a  tax  on  the  receipts -of  the  company  derived 


sonable,  and  likely  to  produce  the 
most  satisfactory  results,  both  to 
the  state  and  the  corporation 
taxed."  See  also  to  the  same  ef- 
fect, Osborne  v.  Florida,  164  U.  S. 
650,  17  Sup.  Ct.  214,  41  L.  ed.  586; 
State  V.  Northern  Exp.  Co.,  81 
Wash.  701,  143  Pac.  99;  State  v. 
Galveston  &c.  R.  Co.,  100  Tex.  153. 
97  S.  W.  71  (reversed  in  Galveston 
&c.  R.  Co.  v.  Texas,  210  U.  S.  217, 
28  Sup.  Ct.  638,  52  L.  ed.  1031). 
See  as  to  recent  U.  S.  excise  law, 
Flint  V.  Stone  Tracy  Co.,  220  U.  S. 
107,  31  Sup.  Ct.  342,  55  L.  ed.  389, 
Ann.  Cas.  1912B,  1312,  and  note; 
New  York  Cent.  &c.  R.  Co.  v.  Gill, 
219  Fed.  184;  Anderson  v.  Morris 
&  F.  R.  Co..  216  Fed.  83;  White's 
Supp.  Thomp.  Corp.  §§  5898-5902. 

26  Mr.  Justice  Bradley,  who  wrote 
the  minority  opinion  (concurred  in 
by  Harlan,  Lamar  and  Brown,  JJ.), 
said:  "But  passing  this  by,  the  de- 
cisions of  this  court  for  a  number 
of  years  past  have  settled  the  prin- 
ciple that  taxation  (which  is  a 
mode  of  regulation)  of  interstate 
commerce,  or  of  the  revenues  de- 
rived therefrom  (which  is  the  same 
thing),  is  contrary  to  the  constitu- 
tion. Going  no  further  back  than 
Pickard  v.  Pullman  Southern  Car 
Co.,  117  U.  S.  34,  6  Sup.  Ct.  635, 


29  L.  ed.  785,  we  find  that  prin- 
ciple laid  down.  There  a  privilege 
tax  was  imposed  upon  Pullman's 
Palace  Car  Company  by  general 
legislation,  it  is  true,  but  applied 
to  the  company,  of  $50  per  annum 
on  every  sleeping  car  going  through 
the  state.  It  was  well  known,  and 
appears  by  the  record,  that  every 
sleeping  car  going  through  the 
state  carried  passengers  from  Ohio 
and  other  northern  states  to  Ala- 
bama, and  vice  versa,  and  we  held 
that  Tennessee  had  no  right  to  tax 
those  cars.  It  was  the  same  thing 
as  if  they  had  taxed  the  amount 
derived  from  the  passengers  in  the 
cars.  So,  also,  in  the  case  of  Le- 
loup  V.  Mobile,  127  U.  S.  640.  8 
Sup.  Ct.  1380,  32  L.  ed.  311,  we 
held  that  the  receipts  derived  by 
the  telegraph  companies  from  mes- 
sages sent  from  one  state  to  an- 
other could  not  be  taxed.  So  in 
the  case  of  Norfolk  &c.  R.  Co.  v. 
Pennsylvania,  136  U.  S.  114,  10 
Sup.  Ct.  958,  34  L.  ed.  394,  where 
the  railroad  was  a  link  in  a  through 
line  by  which  passengers  and 
freight  were  carried  into  other 
states,  the  company  was  held  to 
be  engaged  in  the  business  of  in- 
terstate commerce,  and  could  not 
be  taxed  for  the  privilege  of  keep- 


:S919 


RAILROADS 


322 


from  interstate  transportation.-'  And  in  a  recent  case  it  is  held 
that  an  excise  or  privilege  tax  upon  sleeping-car  companies  doing 
business  in  the  state,  and  whose  principal  business  is  interstate, 
which  makes  no  distinction  between  cars  used  in  interstate  traffic 
and  those  used  wholly  within  the  state  is  invalid  as  an  attempt 
by  the  state  to  impose  a  burden  on  interstate  commerce,  but  that 
nn  annual  tax  upon  sleeping-car  companies  which  carry  one  or 
more  local  passengers,  on  cars  operating  within  the  state,  is  not 
void  where  the  company  is  free  to  decline  all  local  business  if  it 
sees  fit.^® 


ing  an  office  in  the  state.  And  in 
the  case  of  Crutcher  v.  Kentucky, 
141  U.  S.  47,  11  Sup.  Ct.  851,  35 
L.  ed.  649,  we  held  that  the  taxa- 
tion of  an  express  company  for 
doing  an  express  business  between 
different  states  was  unconstitu- 
tional and  void.  And  in  the  case 
of  Philadelphia  &c.  Steamship  Co. 
v.  Pennsylvania,  122  U.  S.  326,  7 
Sup.  Ct.  1118,  30  L.  ed.  1200,  we 
held  that  a  tax  upon  the  gross  re- 
ceipts of  the  company  was  void, 
because  they  were  derived  from 
interstate  and  foreign  commerce. 
A  great  many  other  cases  might 
be  referred  to  showing  that  in  the 
decisions  and  opinions  of  this 
court  this  kind  of  taxation  is  un- 
constitutional and  void.  We  think 
that  the  present  decision  is  a  de- 
parture from  the  line  of  these  de- 
cisions. The  tax,  it  is  true,  is 
called  a  'tax  on  a  franchise.'  It  is 
so  called,  but  what  is  it  in  fact? 
It  is  a  tax  on  the  receipts  of  the 
company  derived  from  international 
transportation.  This  court  and 
some  of  the  state  courts  have  gone 
a  great  length  in  sustaining  various 
forms  of  taxes  upon  corporations. 
The  train  of  reasoning  upon  which 


it  is  founded  may  be  questionable. 
A  corporation,  according  to  this 
class  of  decisions,  may  be  taxed 
several  times  over.  It  may  be 
taxed  for  its  charter,  for  its  fran- 
chises, for  the  privilege  of  carry- 
ing on  its  business;  it  may  be  taxed 
on  its  capital,  and  it  may  be  taxed 
on  its  property.  Each  of  these  tax- 
ations may  be  carried  to  the  full 
amount  of  the  property  of  the  com- 
pany." See  Adams  Express  Co.  v. 
Ohio,  165  U.  S.  194,  17  Sup.  Ct. 
305,  41  L.  ed.  683.  And  see  Gal- 
veston &c.  R.  Co.  V.  Texas,  210 
U.  S.  217,  28  Sup.  Ct.  638,  52  L.  ed. 
1031,  reviewing  the  case  first  cited 
in  this  note  and  stating  that  at 
lirst  sight  the  decision  seems  er- 
roneous but  that  it  may  possibly 
be  upheld  on  a  theory  suggested. 

27  See  Crew  Levick  Co.  v.  Penn- 
sylvania, 245  U.  S.  292,  38  Sup.  Ct. 
126,  62  L.  ed.  295. 

28  Allen  V.  Pullman's  Palace  Car 
Co..  191  U.  S.  171,  24  Sup.  Ct.  ,39. 
48  L.  ed.  134.  See  State  v.  North- 
ern Express  Co.,  27  Mont.  419,  71 
Pac.  404:  State  v.  Northern  Ex- 
'^ress  Co.,  80  Wash.  309,  141  Pac. 
757. 


;j2:]  taxation    INBER    FEDERAL    COXSTITL  TlOX  §  920 

§  920.  Excise,  license  and  privilege  taxes — Review  of  recent 
decisions. — Recent  (lecisit)ns  of  the  Supreme  Court  of  the  United 
States  have  made  it  plain  that  a  state  can  not  directly  tax  inter- 
state commerce  under  the  guise  of  a  license,  privilege  or  excise 
tax,  and  that  the  courts,  looking  through  the  form  of  a  statute  to 
its  substance  and  effect,  will  ascertain  whether  in  truth  the  im- 
post is  a  tax  on  interstate  commerce,  no  matter  under  what  guise 
it  is  levied.  Under  this  rule  they  hold  that  statutes  requiring  of 
all  foreign  corporations  payment  of  a  certain  percentage  of  their 
entire  capital  stock,  and  the  like,  are  a  burden  upon  the  corporate 
capital  engaged  in  such  commerce  and  consequently  void.^^  But 
it  is  difiicult  to  determine  just  when  it  has  this  effect,  and  many 
"nice  distinctions"  have  been  made,  and  some  of  the  state  courts 
have  dift'ered  as  to  the  application  of  these  decisions.  In  one 
case  a  state  tax  imposing  an  annual  license  tax  on  the  authorized 
capital  stock  of  a  foreign  corporation  was  held  void,  under  the 
decision  above  referred  to,  as  to  a  corporation  engaged  in  both 
interstate  and  intrastate  commerce.^"  In  another,  however,  the 
court  distinguished  such  decisions  of  the  Supreme  Court  of  the 
United  States  and  held  that  an  excise  tax  on  the  par  value  of  the 
authorized  capital  stock  of  a  foreign  corporation  engaged  in  ordi- 
nary business  within  the  state  was  not  invalid  where  the  intra- 
state business  could  be  separated  from  the  interstate  and  the 
former  could  be  given  up  without  impairing  the  ability  of  the 
corporation  to  transact  the  latter.^^     i\nd  the  Supreme  Court  of 

29  Western     Union    Tel.     Co.     v.  245   U.   S.  292,  38  Sup.   Ct.   126,  62 

Kansas,   216   U.   S.   1,  30   Sup.   Ct.  L.   ed.  295;   Looney  v.   Crane   Co., 

190,  54  L.  ed.  355;  Pullman  Co.  v.  245   U.   S.   178,  38  Sup.   Ct.  85,  62 

Kansas,  216  U.  S.  56,  30  Sup.  Ct.  L.  ed.  230.     See  also  City  Council 

232,  54  L.  ed.  378;  Ludwig  v.  West-  of  Augusta  v.  Augusta  &c.  R.  Co., 

ern  Union  Tel.  Co.,  216  U.  S.  146,  130  Ga.  815,  61  S.  E.  992,  124  Am. 

30    Sup.    Ct.    280,    54    L.    ed.    423;  St.   197;   Barrett  v.  New  York,  232 

Western    Union    Tel.    Co.    v.    An-  U.  S.  14,  34  Sup.  Ct.  203,  58  L.  ed. 

drews,  216  U.   S.   165,  30  Sup.   Ct.  483. 

286,  54  L.  ed.  430;  Atchison  &c.  R.  ^o  h.    K.    Mulford    Co.   v.    Curry, 

Co.  V.  O'Connor,  223  U.  S.  280,  32  163  Cal.  276,  125  Pac.  236. 
Sup.  Ct.  216,  56  L.  ed.  436;  Meyer  sis.    S.    White    Dental     Co.    v. 

V.  Wells,  Fargo  &  Co.,  223  U.  S.  Com.,  212  Mass.  35,  98  N.  E.  1056. 

298,  32  Sup.  Ct.  218,  56  L.  ed.  445;  Ann.    Cas.    1913C,    805.      See    also 

Crew  Levick  Co.  v.  Pennsylvania,  State  v.   Illinois   Cent.   R.   Co.,  246 


^921 


RAILROADS 


324 


the  United  States  has  held  that  an  intention  to  tax  receipts  from 
interstate  commerce  merely  because  it  is  not  excepted  by  a  stat- 
ute imposing  an  excise  tax  on  gross  receipts  where  the  statute 
also  provides  for  measuring  the  tax  only  by  the  earnings  on  intra- 
state business. •'*-  But  a  foreign  railway  company  which  has  come 
into  the  state  in  compliance  with  its  laws  and  has  acquired  prop- 
erty of  a  fixed  and  permanent  nature,  upon  which  it  has  paid  all 
state  taxes,  is  a  person  within  the  equal  protection  clause  of  the 
United  States  Constitution  and  entitled  to  such  protection  as 
against  the  imposition  upon  it  of  an  additional  franchise  tax  for 
the  privilege  of  doing  business  within  the  state,  where  no  such 
tax  is  imposed  upon  domestic  corporations  carrying  on  the  same 
business  in  character  and  kind.^^ 

§921  (763).  Tax  on  passengers  carried. — It  results  from  the 
doctrine  of  the  cases  that  a  tax  can  not  be  levied  upon  each 
passenger  carried  by  an  interstate  railroad  through  a  state. ^'*  To 
permit  this  to  be  done  would  be  to  authorize  a  tax  upon  com- 
merce itself.  The  carriage  of  passengers  is  commerce,  and  to 
impose  a  tax  upon  each  passenger  would  be  just  as  much  a  re- 
striction or  regulation  of  commerce  as  a  tax  upon  each  ton  of 
freight  carried  through  the  state  would  be. 


111.  188,  92  N.  E.  814;  People  v. 
Glynn,  25  App.  Div.  328,  109  N.  Y. 
Supp.  869.  License  must  be  so  im- 
posed on  intrastate  as  not  to  im- 
pair right  to  carry  on  interstate 
commerce.  Northern  Pac.  R.  Co. 
V.  Gififord,  25  Idaho  196,  136  Pac. 
1131. 

32  Ohio  River  &c.  R.  Co.  v.  Dit- 
tey  (Ohio  Tax  Cases),  232  U.  S. 
576,  34  Sup.  Ct.  m,  58  L.  ed.  738. 
See  also  United  States  Exp.  Co.  v. 
Minnesota,  223  U.  S.  335,  Z2  Sup. 
Ct.  211,  56  L.  ed.  459;  Williams  v. 
Talladega,  226  U.  S.  404,  Z2,  Sup. 
Ct.  116.  57  L.  ed.  275  (ordinances 
imposing  tax  mi  business);  Ewing 
V.  Leavenworth,  226  U.  S.  464,  33 
Sup.   Ct.    157,   57   L.   ed.  303    (ordi- 


nances'). An  occupation  tax  on 
domestic  business  of  a  terminal 
company  is  held  valid  in  State  v. 
Houston  Belt  &c.  R.  Co.  (Tex.  Civ. 
App.),  166  S.  W.  83. 

^3  Southern  R.  Co.  v.  Greene,  216 
U.  S.  400,  30  Sup.  Ct.  287,  54  L.  ed. 
536.  Followed  in  Louisville  &c. 
R.  Co.  V.  Gaston.  216  U.  S.  418.  30 
Sup.  Ct.  291,  54  L.  ed.  542.  But 
compare  International  Paper  Co. 
V.  Massachusetts,  246  U.  S.  135,  38 
Sup.  Ct.  292,  62  L.  ed.  624. 

•''■*  Head  Money  Cases,  112  U.  S. 
:80,  5  Sup.  Ct.  247,  28  L.  ed.  798; 
The  Passenger  Cases,  7  How.  (U. 
S.)  282;  Henderson  v.  New  York, 
f;2  U.  S.  259.  22>  L.  ed.  543;  People 
v.     Compagnie    Generale    Transat- 


325 


TAXATION    I'NDER    PKD[:RAL    CONSTTTITIOX 


§1)22 


§922  (764).  Tax  on  interstate  freight. — It  has  been  held  in 
numerous  cases  that  a  state  can  not  lay  a  tax  on  freight  trans- 
ported in  interstate  commerce  traffic. ^^  Such  a  tax  is  regarded 
as  laid  upon  interstate  commerce  itself,  and  in  some  of  the  cases 
it  is  said  that,  where  such  a  tax  is  enforced,  it  falls  upon  those  for 


lantique,  107  U.  S.  59,  2  Svip.  Ct. 
87,  27  L.  ed.  383;  Tennessee  v. 
Pullman  Southern  Car  Co.,  117  U. 
S.  51,  6  Sup.  Ct.  643,  29  L.  ed.  791; 
State  V.  Woodruff  &c.  Co.,  114  Ind. 
155,  15  N.  E.  814.  In  the  case  last 
cited  the  court  quoted  with  approv- 
al from  the  State  Freight  Tax  Case, 

15  Wall.  (U.  S.)  232,  21  L.  ed.  146, 
the  statement  that  "a  tax  upon 
freights  and  faros  is  a  tax  upon  the 
transportation  itself."  Tn  Tennes- 
see V.  Pullman  &c.  Co.,  117  U.  S. 
51,  6  Sup.  Ct.  643.  29  L.  ed.  791,  the 
court  said,  "The  principles  which 
governed  the  decisions  in  Welton 
V.  Missouri.  91  U.  S.  275,  23  T,.  ed. 
347;  Guy  v.  Baltimore,  100  U.  S. 
434.  25  L.  ed.  743;  Moran  v.  New 
Orleans,  112  U.  S.  69,  5  Sup.  Ct. 
38,  28  L.  ed.  653,  holding  unlawful 
the  state  taxes  on  interstate  com- 
merce in  merchandise,  are  equally 
applicable  to  the  tax  in  this  case 
on  the  transit  of  passengers."  See 
also  Brown  v.  Houston,  114  U.  S. 
622,  5  Sup.  Ct.  1091,  29  L.  ed.  257; 
Chy  Lung  v.  Freeman,  92  U.  S. 
275,  23  L.  ed.  550;  Piek  v.  Chicago 
&c.  Co.,  6  Biss.  (U.  S.)  177;  Cran- 
dall  V.  Nevada,  6  Wall.  (U.  S.)  35; 
Sweatt  v.  Boston  &c.  Co.,  3  Cliff. 
rU.  S.)   339;  People  v.  Pacific  Co., 

16  Fed.  344:  Pullman  &c.  Co.  v. 
Nolan,  22  Fed.  276:  People  v.  Dow- 
ner, 7  Cal.  169;  People  v.  Raymond, 
34  Cal.  492:  State  v.  Steamship  &c.. 
42  Cal.  578.  10  Am.  Rep.  303: 
Clarke    v.    Philadelphia    &c.    Co.,    4 


Iloust.  (Del.)  158:  Council  Bluffs 
v.  Kansas  City  &c.  R.  Co.,  45  Iowa 
338,  24  Am.  Rep.  HZ.  But  com- 
pare State  V.  Delaware  &c.  R.  Co.. 

30  N.  J.  L.  473. 

••'•■■'' Woodruff  V.  Parham,  8  Wall. 
(U.  S.)  123,  19  L.  ed.  382;  The 
Daniel  Ball  v.  United  States,  10 
Wall.  (U.  S.)  557,  19  L.  ed.  999: 
State  Freight  Tax  Case,  15  Wall. 
(U.  S.)  232.  21  L.  ed.  146;  Osborne. 
V.  Mobile,  16  Wall.  (U.  S.)  479. 
21  L.  ed.  470:  Railroad  Co.  v. 
Alaryland,  21  Wall.  (U.  S.)  456, 
472,  22  L.  ed.  678:  Welton  v.  Mis- 
souri, 91  U.  S.  275,  23  L.  ed.  347: 
Hall  V.  DeCuir,  95  I'.  S.  485.  34 
L.  ed.  547:  Howe  Machine  Co.  v. 
Gage,  100  U.  S.  676,  25  L.  ed.  754: 
Head  Money  Cases,  112  U.  S.  580. 
5  Sup.  Ct.  247,  28  L.  ed.  798;  Mo- 
ran V.  New  Orleans,  112  U.  S.  69. 
5  Sup.  Ct.  826,  28  L.  ed.  653:  Wa- 
bash &c.  R.  Co.  V.  Illinois,  118  U. 
S,  557,  7  Sup.  Ct.  4,  30  L.  ed.  244; 
Fargo  V.  Michigan,  121  U.  S.  230, 
7  Sup.  Ct.  857,  30  L.  ed.  888;  Ogil- 
vie  V.  Crawford  Co.,  7  Fed.  745: 
Kochler,  Ex  parte,  30  Fed.  867: 
United  States  &c.  Co.  v,  Hemming- 
way.  39  Fed.  60:  Baird  v.  St.  Louis 
&c.  Co.,  41  Fed.  592;  Brumagin  v. 
Tillinghast,  18  Cal.  265,  79  Am. 
Dec.  176;  State  v.  Cumberland  &c. 
Co.,  40  Md.  22:  Erie   Co.  v.  State, 

31  N.  J.  L.  531,  86  Am.  Dec.  226; 
State  V.  Engle,  34  N.  T.  L.  425; 
State  V.   Carrigan,  39   X.    T.   L.  35. 


ij  H2:] 


RAILROADS 


326 


whom  tlu'  property  is  carried.  But  whatever  doubt  there  may 
be  as  to  the  true  reason  for  the  rule  there  is  no  doubt  as  to  its 
existence  and  effect.  Freight  destined  to  a  point  within  the 
state  and  placed  on  the  cars  at  a  point  in  the  same  state  has  been 
held  not  to  be  interstate  freight,  although  in  the  course  of  con- 
tinuous transit  it  may  pass  through  parts  of  another  state. ^"^ 

§923  (765).  Tax  on  gross  receipts  of  interstate  commerce 
corporations. — Tlie  decisit)ns  are  uniformly  to  the  effect  that  a 
tax  can  not  be  laid  on  the  business  of  interstate  commerce.  There 
is,  however,  some  difficulty  in  giving  practical  effect  to  the  gen- 
eral rule.  Taxes  may  be  assessed  upon  a  mileage  basis  and 
upon  tangible  property  having  its  situs  within  the  state,  since 
these  methods  of  taxation  are  not  regarded  as  a  tax  upon  the 
business  of  interstate  commerce  itself.-"  It  has  been  held,  how- 
ever, that  a  tax  can  not  be  laid  upon  the  gross  receipts  of  an 
interstate  company  for  the  reason  that  such  a  method  is  a  tax 
upon   interstate  commerce.^*     It  was  held   by   the  Texas   court 


36  Lehigh  Valley  R.  Co.  v.  Penn- 
sylvania, 145  U.  S.  192,  205,  12  Sup. 
Ct.  806,  36  L.  ed.  672;  Campbell  v. 
Chicago  &c.  Co.,  86  Iowa  641,  53 
N.  W.  351.  Citing  the  above  case 
and  the  cases  of  Welton  v.  Mis- 
souri, 91  U.  S.  275,  23  L.  ed.  347; 
Mobile  County  v.  Kimball,  102  U. 
S.  691,  26  L.  ed.  238;  Gibbons  v. 
Ogden,  9  Wheat.  (U.  S.)  189,  6  L. 
ed.  68.  See  also  Ewing  v.  Leaven- 
worth, 226  U.  S.  464,  33  Sup.  Ct. 
157  (affg.  80  Kans.  58).  But  com- 
pare ante  §  812.  If  destined  to  a 
consignee  in  another  state  by  con- 
tinuous trip  it  is  held  interstate 
commerce  although  the  initial  car- 
rier only  contracted  to  carry  to  a 
point  within  the  state.  Mexican 
Nat.  R.  Co.  v.  Savage  (Tex.  Civ. 
App.),  41  S.  W.  663.  See  also  State 
V.  Southern  Kans.  R.  Co.  (Tex. 
Civ.  App.),  49  S.  W.  252.  So,  for 
other    purposes    than    taxation,    if 


part  of  the  route  is  in  another 
state,  although  the  transportation 
begins  and  ends  in  the  same  state, 
it  has  lately  been  regarded  as  in- 
terstate commerce.  See  post,  § 
2550.  Hanley  v.  Kansas  City  &c. 
R.  Co.,  187  U.  S.  617,  23  Sup.  Ct. 
214,  47  L.  ed.  333. 

37  Or  on  the  property  and  busi- 
ness within  the  state.  Wisconsin 
&c.  R.  Co.  V.  Powers,  191  U.  S. 
379,  24  Sup.  Ct.  107,  48  L.  ed.  229. 

38  State  Freight  Tax,  15  Wall. 
(U.  S.)  232,  21  L.  ed.  146;  Tele- 
graph Co.  V.  Texas,  105  U.  S.  460, 
26  L.  ed.  1067;  Philadelphia  &c.  S. 
S.  Co.  V.  Pennsylvania,  122  U.  S. 
326,  7  Sup.  Ct.  1118,  30  L.  ed.  1200; 
Fargo  v.  Michigan,  121  U.  S.  230, 
7  Sup.  Ct.  857,  30  L.  ed.  888;  Rat- 
terman  v.  Western  Union  Tel.  Co., 
127  U.  S.  411,  8  Sup.  Ct.  1127,  32 
L.  ed.  229;  Gloucester  Ferry  Co.  v. 
Pennsylvania  Co.,  114  U.  S.  196,  5 


527 


TAXATK)N'    T'XDER    FEDERAL    CONSTITI'TIOX 


§923 


that  a  law  imposing  a  tax  on  railroads  equal  to  one  per  cent,  of 
their  gross  receipts  was  an  occupation  tax,  and  not  a  tax  on  the 
gross  receipts  of  railroads,  and,  hence,  not  an  interference  with 
interstate  commerce.  In  this  case  the  reference  to  the  gross 
receipts  was  regarded  merely  as  a  convenient  method  of  ascer- 
taining the  amount  of  the  tax,^**  and  there  are  some  statements 
in  opinions  of  the  Supreme  Court  of  the  United  States  that  tend 
very  strongly  to  support  this  view ;  but  the'  decision  in  question 
has  been  reversed  by  the  Supreme  Court  of  the  United  States.*" 


Sup.  Ct.  826,  29  L.  ed.  158;  McCall 
V.  California,  136  U.  S.  104,  10  Sup. 
Ct.  881,  34  L.  ed.  392;  Norfolk  &c. 
R.  Co.  V.  Pennsylvania,  136  U.  S. 
114.  10  Sup.  Ct.  958.  34  L.  ed.  394; 
New  York  &c.  R.  Co.  v.  Pennsyl- 
vania, 158  U.  S.  431,  15  Sup.  Ct. 
896,  39  L.  ed.  1043;  Commonwealth 
v.  Lehigh  Valley  R.  Co.  (Pa.),  17 
Atl.  179;  Northern  Pac.  R.  Co.  v. 
Raymond,  5  Dak.  356,  40  N.  W. 
538,  1  L.  R.  A.  732,  Z7  Am.  &  Eng. 
R.  Cas.  379;  Vermont  &c.  R.  Co.  v. 
Vermont  Cent.  R.  Co.,  63  Vt.  1. 
21  Atl.  262,  731,  10  L.  R.  A.  562. 
The  decisions  are  not  harmonious. 
State  Tax  on  Railway  Gross  Re- 
ceipts, 15  Wall.  (U.  S.)  284,  21  L. 
ed.  164,  is  opposed  to  the  later  de- 
cisions, and  there  are  some  ex- 
pressions in  other  cases  which 
seem  to  indicate  that  gross  receipts 
may  be  taxed.  We  do  not  under- 
stand that  the  cases  which  declare 
that  a  mileage  basis. is  valid  au- 
thorize the  conclusion  that  a  state 
may  tax  gross  receipts.  We  think 
the  court  intended  to  make  a  dis- 
tinction between  the  two  methods, 
and  that  it  has  done  so.  We  can 
see  no  escape  from  the  conclusion 
that  a  tax  upon  gross  receipts  is  a 
tax  upon  interstate  commerce  it- 
self,   and    if    it    be,    it    is    certainly 


levied  in  violation  of  the  commerce 
clause  of  the  constitution.  In  the 
case  of  Philadelphia  &c.  Co.  v. 
Pennsylvania,  122  U.  S.  326,  7  Sup. 
Ct.  1118,  1123,  30  L.  ed.  1200,  the 
court  said:  "A  review  of  the  ques- 
tion convinces  us  that  the  first 
ground  on  which  State  Tax  on 
Railway  Gross  Receipts  was  placed 
is  not  tenable,  that  it  is  not  sup- 
ported by  anything  decided  in 
Brown  v.  Maryland,  but.  on  the 
contrary,  that  the  reasoning  in  that 
case  is  decidedly  against  it."  See 
also  Atchison  &c.  R.  Co.  v.  O'Con- 
nor, 223  U.  S.  280,  32  Sup.  Ct.  216, 
56  L.  ed.  436;  Western  Union  Tel. 
Co.  V.  Kansas,  216  U.  S.  1.  30  Sup. 
Ct.  190,  54  L.  ed.  355,  and  other 
cases  reviewed  ante  §  920.  But 
see  as  to  tax  on  gross  earnings 
where  there  is  no  question  of  con- 
tract or  interstate  commerce.  Mc- 
Henry  v.  Alford,  168  U.  S.  651. 
18  Sup.  Ct.  242,  42  L.  ed.  614;  and 
see  notes  to  preceding  sections. 

39  State  V.  Galveston  &c.  R.  Co., 
100  Tex.  153,  97  S.  \N .  71.  But  see 
Galveston  &c.  R.  Co.  v.  Davidson, 
TOO  Tex.  Civ.  App.  177.  93  S.  W. 
436;  and  see  ante,  §919. 

•*o  Galveston  &c.  R.  Co.  v.  Texas, 
210  U.  S.  217,  28  Sup.  Ct.  638,  52 
],.    ed.    1031.     The    subject   has   al- 


J<924 


RAILROADS 


;}28 


§924  (766).  Fees  for  the  right  to  be  a  corporation  not  taxes. 
— A  state  has  power  to  exact  fees  of  an  associatinn  which  asks 
the  right  or  privilege  of  being  a  corporation,  and  the  exaction  of 
such  fees  is  not  the  imposition  of  a  tax  upon  interstate  coni- 
merce."  The  ct)urt  concedes  that  the  exaction  of  such  fees  may 
incidentally  affect  interstate  commerce,  but  denies  that  such  an 
exaction  is  a  regulation  of  commerce  between  the  states,  in  such 
?.  sense  as  to  be  within  the  inhil)ition  of  the  constitution.  The 
theory  of  the  court  is  that  the  state  has  power  to  grant  or  refuse 
a  charter,  and  hence  may  prescribe  the  terms  upon  which  it  will 
grant  the  corporate  privileges  and  franchises  asked  by  the  per- 
sons who  desire  to  organize  a  corporation  under  its  laws. 


read}'  been  sufficiently  considered 
and  the  recent  cases  are  cited  in 
§  825  ante;  but  we  also  call  atten- 
tion to  the  opinion  of  tlie  court  in 
United  States  Glue  Co.  v.  Oak 
Creek,  247  U.  S.  321,  38  Sup.  Ct. 
499,  62  L.  ed.  1135.  Ann.  Gas.  1918E, 
748,  749,  750,  where  the  difference 
in  effect  between  a  tax  measured 
by  gross  receipts  and  one  meas- 
I'.red  b}-  net  income  is  pointed  out 
and  said  to  afford  a  convenient  and 
workable  basis  of  distinction  be- 
tween a  direct  and  immediate  bur- 
den upon  the  business  effected  and 
charge  that  is  only  indirect  and 
incidental.  Money  received  from 
operation  of  railroads  under  Fed- 
eral control  is  not  necessarily  ex- 
empt from  state  taxation.  Wabash 
R.  Co.  V.  Board  of  Review  of  Cook 
County  (111.),  123  N.  E.  259. 

41  Ashley  v.  Ryan,  153  U.  S.  436, 
14  Sup.  Ct.  865,  38  L.  ed  HZ,  citing 
California  v.  Central  Pacific  R.  Co., 
127  U.  S.  1,  40,  8  Sup  Ct.  1073,  32 
L.  ed.  150;  Home  Ins.  Co.  v.  New 
York,  134  U.  S.  594,  10  Sup.  Ct. 
593,  ZZ  L.  ed.  1025:  Bank  of  Au- 
gusta  V.   Earle,   13   Pet.   519,    10   L. 


c(i.  274;  Lafayette  Insurance  Co.  v. 
French,  18  How.  (U.  S.)  404,  15 
L.  ed.  451;  Paul  y.  Virginia,  8  Wall. 
(U.  S.)  168,  19  L.  ed.  357;  Ducat  v. 
Chicago,  10  Wall.  (U.  S.)  410,  19 
L.  cd.  972;  Railroad  Co.  v.  Mary- 
land, 21  Wall.  (U.  S.)  456,  22  L.  ed. 
678;  Philadelphia  Fire  Assn.  Co.  v. 
New  York,  119  U.  S.  110.  30  L.  ed. 
342.  The  court  marks  the  distinc- 
tion between  a  tax  imposed  upon 
the  privilege  of  doing  business  in 
tlie  state  and  the  exaction  of  a  fee 
for  the  privilege  of  becoming  a  cor- 
poration, saying:  "The  question 
here  is  not  the  power  of  the  state 
of  Ohio  to  lay  a  charge  on  inter- 
state commerce,  or  to  prevent  a 
foreign  corporation  from  engaging 
in  interstate  commerce  within  its 
confines,  but  simply  the  right  of 
the  state  to  determine  upon  what 
conditions  its  laws  as  to  the  con- 
solidation of  corporations  may  be 
availed  of."  See  also  Chicago  &c. 
R.  Co.  V.  State,  153  Ind.  134,  51 
N.  E.  924,  and  compare  Pullman's 
Palace  Car  Co.  v.  Hayward,  141 
U.  S.  Zd,  11  Sup.  Ct.  883,  35  L.  ed. 
621.     But  see  as  to  taxing  franchise 


329 


TAXATION"    UNDER    FEDERAL    CONSTITUTION 


§925 


§  925   (767).     Municipal  tax  as  compensation  for  use  of  streets. 

The  right  of  a  municipal  c-orporation  to  impose  a  tax  as  com- 

jiensation  for  the  use  of  its  streets  was  asserted  in  a  compara- 
tively recent  case.*-  The  court  adjudged  that  such  a  tax  was 
neither  a  license  tax  nor  a  privilege  tax.  There  is  reason  for 
discriminating  between  a  ])rivilege  or  license  tax  and  a  require- 
ment that  compensation  l)e  paid  for  the  use  of  city  streets,  or  for 


of  federal  corporation,  Keokuk  &c. 
Bridge  Co.  v.  Tllinois,  175  U.  S. 
626,  20  Sup.  Ct.  205,  44  L.  ed.  299: 
California  v.  Central  Pac.  R.  Co., 
127  U.  S.  1,  8  Sup.  Ct.  1073,  32  L. 
ed.  150;  State  v.  Texas  &c.  R.  Co., 
100  Tex.  279.  98  S.  W.  834.  And  see 
for  tax  held  invalid  where  company 
had  already  fully  complied  with 
the  law  and  made  permanent  in- 
vestments, and  was  discriminated 
against.  Southern  R.  Co.  v.  Greene, 
216  U.  S.  400,  30  Sup.  Ct.  287,  54 
L.  ed.  536  (reviewed  in  §  825  ante). 
*-  St.  Louis  V.  Western  Union 
Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct. 
485,  37  L.  ed.  380.  In  the  course 
of  the  opinion  in  that  case,  it  was 
said:  "And  first  with  reference  to 
the  ruling  that  this  charge  was  a 
privilege  or  license  tax.  To  deter- 
mine this  question,  we  must  refer 
to  the  language  of  the  ordinance 
itself,  and  by  that  we  find  that  the 
charge  is  imposed  for  the  privilege 
of  using  the  streets,  alleys  and 
public  places,  and  is  graduated  by 
the  amount  of  such  use.  Clearly, 
this  is  no  privilege  or  license  tax. 
The  amount  to  be  paid  is  not  grad- 
uated by  the  amount  of  the  busi- 
ness, nor  is  it  a  sum  fixed  for  the 
privilege  of  doing  business.  It  is 
more  in  the  nature  of  a  charge  for 
the  use  of  property  belonging  to 
the  city — that  which  may  properly 


he  called  rental.  'A  tax  is  a  de- 
mand of  sovereignty;  a  toll  is  a 
demand  of  proprietorship.'  State 
Freight  Tax  Case,  15  Wall.  (U.  S.) 
232,  278,  21  L.  ed.  146.  If,  instead 
of  occupying  the  streets  and  pub- 
lic places  with  its  telegraph  poles, 
the  company  should  do  what  it  may 
rightfully  do,  purchase  ground  in 
the  various  blocks  from  private  in- 
dividuals, and  to  such  ground  re- 
move its  poles,  the  section  would 
no  longer  have  any  application  to 
it.  That  by  it  the  city  receives 
something  which  it  may  use  as 
revenue  does  not  determine  the 
character  of  the  charge'  or  make 
it  a  tax.  The  revenues  of  a  mu- 
nicipality may  come  from  rentals 
as  legitimately  and  as  properly  as 
from  taxes.  Supposing  the  city  of 
St.  Louis  should  find  its  city  hall 
too  small  for  its  purposes,  or  too 
far  removed  from  the  center  of 
business,  and  should  purchase  or 
build  another  more  satisfactory  in 
this  respect,  it  would  not  therefore 
be  forced  to  let  the  old  remain  va- 
cant or  to  immediately  sell  it,  but 
"might  derive  revenue  by  renting  its 
various  rooms.  Would  an  ordi- 
nance fixing  the  price  at  which 
those  rooms  could  be  occupied  be 
in  any  sense  one  imposing  a  tax? 
Nor  is  the  character  of  the  charge 
changed  by  reason  of  the  fact  that 


§  926 


RAILROADS 


330 


local  g^ovcniniental  supervision,'*^  and  this  doctrine  is  now  pretty 
well  settled  luit  the  difference  between  such  cases  is  smiu'what 
indistinct  and  shadowy.  Properly  limited  and  applied  llu-  doc- 
trine seems  correct,  but  unless  restrained  by  clearly  defined  rules 
there  is  dang"er  of  great  abuse.  It  is  always  a  delicate  thing-  {or 
courts  to  interfere  in  cases  where  the  existence  of  the  power 
asserted  is  conceded  and  the  suitor  seeks  assistance  solely  upon 
the  ground  that  the  power  has  been  abused  or  transcended,  and 
i^  is  so  in  dealing  with  municipal  taxation  of  the  character  of 
that  mider  consideration  in  the  case  cited. 

§926  (768).  Impairing  obligation  of  a  contract. — We  have 
elsewhere  discussed  the  cjuestion  of  the  effect  of  a  provision  in 
the  charter  of  a  railroad  corporation  exempting  it  from  taxation, 
and  have  said  that  under  the  federal  decisions  it  is  to  be  regarded 
as  a  contract  right  protected  by  the  clause  of  the  federal  constitu- 
tion forbidding  the  impairment  of  the  obligation  of  a  contract.** 
The  question  is,  of  course,  a  federal  one,  and  the  decisions  of  the 
Supreme  Court  of  the  United  States  are  final  and  conclusive.  It 
is  true  that,  so  far  as  concerns  purely  local  questions  and  matters 
involving  the  construction  of  state  constitutions  and  statutes,  the 
general  rule  is  that  the  federal  courts  follow  the  decisions  of  the 


it  is  not  imposed  upon  such  tele- 
graph companies  as  by  ordinances 
are  taxed  on  their  gross  income  for 
city  purposes.  In  the  illustration 
just  made  in  respect  to  a  city  hall, 
suppose  that  the  city,  in  its  ordi- 
nance fixing  a  price  for  the  use  of 
rooms,  should  permit  persons  who 
pay  a  certain  amount  of  taxes  to 
occupy  a  portion  of  the  building 
free  of  rent,  that  would  not  make 
the  charge  upon  others  for  their 
use  of  rooms  a  tax."  See  also  Sa- 
vannah &c.  R.  V.  Mayor,  198  U.  S. 
392,  25  Sup.  Ct.  690,  49  L.  ed.  1097; 
Mobile  Light  &  R.  Co.  v.  Mobile, 
200  Ala.   141.  75  So.  889. 


43  See  Atlantic  &c.  Tel.  Co.  v. 
Philadelphia,  190  U.  S.  160,  23  Sup. 
Ct.  817,  47  L.  ed.  995;  Western  U. 
Tel.  Co.  V.  New  Hope,  187  U.  S. 
419,  23  Sup.  Ct.  204,  47  L.  ed.  240; 
Savannah  &c.  R.  Co.  v.  Savannah, 
198  U.  S.  392,  25  Sup.  Ct.  690,  49 
L.  ed.  1097. 

44  Pacific  R.  Co.  V.  Maguire,  20 
Wall.  (U.  S.)  36,  22  L.  ed.  282; 
State  V.  Winona  &c.  Co.,  21  Minn. 
315;  State  v.  Miller,  1  Vroom  (N. 
J.),  368,  86  Am.  Dec.  188.  See  also 
the  elaborate  note  to  Adams  v. 
Yazoo  &c.  R.  Co.,  60  L.  R.  A.  33, 
et  seq. 


331 


TAXATION    ITNDER    FEDERAL    CONSTITL'TIOX 


§926 


state  courts.*''  Those  decisions,  indeed,  become  part  of  the  stat- 
utes much  to  the  same  extent  as  if  written  in  the  text.**'  But  the 
statute  or  charter  must  contain  a  contract  in  all  that  the  term 
implies.*^  There  must,  of  course,  be  a  consideration  for  the 
contract,  but  it  is  held  that  no  consideration  beyond  that  which 
is  to  be  expected  to  result  from  the  formation  of  the  corporation 
is  required.*®  It  is  not  every  charter  which  provides  for  exemp- 
tion that  can  be  considered  as  a  contract,  since  the  exemption 
may  be  in  the  nature  of  a  mere  donation,  or  bounty,  and  if  there 
is  nothing"  more  than  a  gift  or  a  provision  for  a  bountv  there  is 


45  Nesmith  v.  Sheldon,  7  How. 
(U.  S.)  812,  12  L.  ed.  925;  Green  v. 
Neal,  6  Peters  (U.  S.)  291,  8  L.  ed. 
402;  Suydam  v.  Williamson,  24 
How.  (U.  S.)  427,  16  L.  ed.  742; 
Cross  V.  Allen,  141  U.  S.  528,  12 
Sup.  Ct.  67,  35  L.  ed.  843;  Shelly  v. 
Guy,  11  Wheat.  (U.  S.)  361,  6  L.  ed. 
495;  Stutsman  County  v.  Wallace, 
142  U.  S.  293,  12  Sup.  Ct,  227,  35 
L.  ed.  1018;  Detroit  v.  Osborne, 
135  U.  S.  492.  10  Sup.  Ct.  1012,  34  L. 
ed.  260;  Bucher  v.  Cheshire  R.  Co., 
125  U.  S.  555,  8  Sup.  Ct.  974,  31  L. 
ed.  795;  Burgess  v.  Seligman,  107 
U.  S.  20,  2  Sup.  Ct.  10,  27  L.  ed. 
359;  Claiborne  v.  Brooks.  Ill  U. 
S.  400,  4  Sup.  Ct.  489,  28  L.  ed.  470; 
Chicago  &c.  Co.  v.  Stahley,  62  Fed. 
363,  and  cases  cited.  See  also 
Northern  C.  R.  Co.  v.  ^Maryland. 
187  U.  S.  258,  23  Sup.  Ct.  62.  47  L. 
ed.  167;  Gulf  &c.  R.  Co.  v.  Hewes, 
183  U.  S.  66,  22  Sup.  Ct.  26,  46  L. 
ed.  86.  But  the  federal  court,  while 
leaning  to  the  construction  of  the 
state  court,  on  writ  of  error,  to 
the  state  court,  determines  for  it- 
self the  power  of  the  state  and  ex- 
istence or  non-existence  of  the  con- 
tract  the   obligation    of   which    al- 


leged to  have  been  impaired. 
Stearns  v.  Minnesota,  179  U.  S. 
223,  21  Sup.  Ct.  73,  45  L.  ed.  162, 
and  authorities  cited. 

4*5  Douglas  V.  Pike  County,  101 
U.  S.  677,  25  L.  ed.  968;  Anderson 
V.  Santa  Anna,  116  U.  S.  356,  6 
Sup.  Ct.  413,  29  L.  ed.  633;  Ohio 
&c.  Insurance  Co.  v.  Debolt,  16 
How.  (U.  S.)  416,  14  L.  ed.  997; 
Gelpcke  v.  Dubuque,  1  Wall.  (U. 
S.)  175,  17  L.  ed.  520;  Olcott  v. 
Supervisors,  16  Wall.  (U.  S.)  678, 
21  L.  ed.  382;  Taylor  v.  Ypsilanti, 
105  U.  S.  60.  26  L.  ed.  1008. 

47  "It  is  to  be  kept  in  mind  that 
it  is  not  the  charter  which  is  pro- 
tected, but  any  contract  which  the 
charter  may  contain.  If  there  is 
no  contract  there  is  nothing  on 
which  the  constitution  can  act." 
Per  Waite,  C.  J.,  in  Stone  v.  Mis- 
sissippi, 101  U.  S.  814,  25  L.  ed. 
1079. 

48  Home  of  the  Friendless  v. 
Rouse,  8  Wall.  (U.  S.)  430,  19  L. 
ed.  495.  See  also  Powers  v.  De- 
troit &c.  R.  Co.,  201  U.  S.  543.  26 
Sup.  Ct.  556.  558,  50  L.  ed.  860; 
Citizens  Bank  v.  Parker,  192  U.  S. 
73,  24  Sup.   Ct.   181,  48  L.  ed.  346. 


§  !)26 


RAILROADS 


332 


no  contract  upon  which  the  constitution  can  operate.^''  Federal 
courts  do  not  accept  the  decision  of  the  state  tribunals  as  to  what 
is  or  is  not  a  contract.  That  is  a  question  which  the  federal  court 
will  determine  for  itself.^"  The  federal  court  must,  therefore, 
determine  whether  the  particular  statute  granting  the  exemption 
does  or  does  not  constitute  an  inviolable  contract  in  every  case 
where  the  state  court  has  denied  that  it  does  constitute  a  con- 


*"  Christ's  Church  v.  Philadel- 
phia, 24  How.  (U.  S.)  300,  16  L.  ed. 
602;  Wisconsin  &c.  R.  Co.  v.  Pow- 
ers, 191  U.  S.  379,  24  Sup.  Ct.  107, 
48  L.  ed.  229;  East  Saginaw  Salt 
Co.  V.  East  Saginaw,  13  Wall.  (U. 
S.)  373,  20  L.  ed.  611;  East  Sagi- 
naw &c.  Co.  V.  East  Saginaw,  19 
Mich.  259,  2  Am.  Rep.  82;  Detroit 
V.  Plankroad  Co.,  43  Mich.  140,  5 
N.  W.  275;  Welch  v.  Cook,  97  U. 
S.  541,  24  L.  ed.  1112.  In  the  case 
last  cited  the  court,  in  speaking  of 
the  act  of  congress  under  consider- 
ation, said:  "This  is  a  bounty  law, 
which  is  good  as  long  as  it  remains 
unrepealed,  but  there  is  no  pledge 
that  it  shall  not  be  repealed  at  any 
time."  See  note  in  60  L.  R.  A.  64, 
et  seq. 

^0  Tliis  question  received  careful 
consideration  in  the  case  of  Mobile 
&c.  R.  Co.  V.  Tennessee,  153  U.  S. 
486,  14  Sup.  Ct.  968,  38  L.  ed.  793. 
In  that  case  it  was  said:  "It  is  well 
settled  that  the  decision  of  a  state 
court  holding  that,  as  a  matter  of 
construction,  a  particular  charter 
or  a  charter  provision  does  not 
constitute  a  contract,  is  not  binding 
on  this  court.  The  question  of  the 
existence  or  non-existence  of  a  con- 
tract in  cases  like  the  present  is 
one  which  the  court  will  determine 
for  itself,  the  established  rule  be- 
ing that  where  the  judgment  of  the 


liighcst  court  of  a  stale,  by  its 
terms  or  necessary  operation,  gives 
effect  of  some  provision  of  the 
state  law  which  is  claimed  by  the 
unsuccessful  party  to  impair  the 
contract  set  out  and  relied  on,  this 
court  has  jurisdiction  to  determine 
the  question  whether  such  a  con- 
tract exists  as  claimed,  and  wheth- 
er the  state  law  complained  of,  im- 
jiairs  its  obligation.  A  brief  ref- 
erence to  some  of  the  authorities 
is  sufficient  to  show  this:  In  Jeffer- 
son Bank  v.  Skelly,  1  Black  (U.  S.), 
436,  443,  17  L.  ed.  173,  it  was  said 
by  this  court:  "Its  (the  supreme 
court)  rule  of  interpretation  has 
invarial)ly  been  that  the  construc- 
tions given  by  courts  of  the  states 
to  state  legislation  and  to  state 
constitutions  have  been  conclusive 
upon  this  court,  with  a  single  ex- 
ception, and  that  is  when  it  has 
been  called  upon  to  interpret  the 
contracts  of  states,  though  they 
had  been  made  in  the  forms  of  law, 
or  by  the  instrumentality  of  a 
state's  authorized  functionaries,  in 
conformity  with  state  legislation. 
It  has  never  been  denied,  nor  is  it 
now,  that  the  supreme  court  of  the 
United  States  has-  an  appellate 
power  to  revise  the  judgment  of 
the  supreme  court  of  a  state  when- 
ever such  court  shall  adjudge  that 
not  to  be  a  contract  which  has  been 


;j3:j 


TAXATION    I'XDER   FEDERAL    CONSTITUTION 


§927 


tract  between  the  state  and  the  corporation.  In  several  cases, 
as  ah-eady  shown,  althoui^h  not  without  question,  it  has  been  held 
that  an  exaction  tax.  or  charge  for  the  privilege  of  exercising  the 
franchises  in  the  state,  in  lieu  of  all  ordinary  taxes,  may  become 
a  matter  of  contract."'^ 

§927  (769).  Impairing  obligation  of  contracts  —  Tax  on 
bonds. — A  state  has  no  power  to  compel  an  interstate  railroad 
company  doing  business  within  the  state  boundaries,  by  permis- 
sion granted  by  statute,  to  deduct  from  the  interest  on  its  bonds, 
issued  prior  to  the  enactment  of  the  statute,  the  tax  levied  by  the 


alleged,  in  the  forms  of  legal  pro- 
ceedings, by  a  litigant,  to  be  one 
within  the  meaning  of  that  clause 
of  the  constitution  of  the  United 
States  which  inhibits  the  states 
from  passing  laws  impairing  the 
obligation  of  contracts.  Of  what 
use  would  the  appellate  power  be 
to  a  litigant  who  feels  himself  ag- 
grieved by  some  particular  state 
legislation,  if  this  court  could  not 
decide,  independently  of  all  adjudi- 
cation by  the  supreme  court  of  a 
state,  whether  or  not  the  phrase- 
ology of  an  instrument  in  contro- 
versy was  expressive  of  a  contract, 
and  within  the  protection  of  the 
constitution  of  the  United  States, 
and  that  its  obligation  should  be 
enforced  notwithstanding  a  con- 
trary decision  by  the  supreme  court 
of  a  state?'"  See  also  New  Or- 
leans Waterworks  Co.  v.  Louisiana 
Sugar  Refining  Co.,  125  U.  S.  18, 
38,  8  Sup.  Ct.  741,  31  L.  ed.  607; 
Wilmington  &c.  R.  Co.  v.  Als- 
brook,  146  U.  S.  279,  13  Sup.  Ct. 
72,  Z6  L.  ed.  972;  Huntington  v. 
Attrill,  146  U.  S.  657,  13  Sup.  Ct. 
224,  36  L.  ed.  1123;  East  Hartford 
V.  Hartford  Bridge  Co.,  10  How. 
(U.  S.)  536,  13  L.  ed.  528;  Univer- 


sity V.  People,  99  U.  S.  309,  321,  25 
L.  ed.  389;  Louisville  Gas  Co.  v. 
Citizens  Gas  Co.,  115  U.  S.  683,  6 
Sup.  Ct.  265,  29  L.  cd.  510;  Vicks- 
burg  &c.  R.  Co.  V.  Dennis,  116  U. 
S.  665,  6  Sup.  Ct.  625,  29  L.  ed. 
770;  Yazoo  &c.  R.  Co.  v.  Thomas, 
132  U.  S.  174,  10  Sup.  Ct.  68,  Zi  L. 
ed.  302;  Bryan  v.  Board  of  Educa- 
tion, 151  U.  S.  639,  14  Sup.  Ct.  465, 
38  L.  ed.  297;  Stearns  v.  Minneso- 
ta. 179  U.  S.  223,  21  Sup.  Ct.  72,, 
45  L.  ed.  162. 

51  State  v.  Chicago  &c.  R.  Co., 
128  Wis.  449,  108  N.  W.  594.  See 
also  Powers  v.  Detroit  &c.  R.  Co., 
201  U.  S.  543,  26  Sup.  Ct.  556,  50 
L.  ed.  860,  (also  holding  that  where 
the  supreme  court  of  the  state  has 
held  that  the  statute  is  valid  and 
applicable  and  a  valid  contract  is 
created,  the  United  States  Supreme 
Court  accepts  that  decision,  where 
a  valid  contract  appears,  and  starts 
with  the  question  as  to  the  con- 
tract) ;  Jersey  City  &c.  Co.  v.  Uni- 
ted &c.  Co.,  46  Fed.  264;  Bain  v. 
Seaboard  &c.  R.  Co.,  52  Fed.  450; 
Standard  &c.  Cable  Co.  v.  Attor- 
ney-General, 46  N.  J.  Eq.  270,  19 
Atl.  7ii.   19  Am.   St.  394. 


§928 


RAILROADS 


334 


state,  and  pay  such  tax  to  the  state.  The  court  held  that  the 
statute  assuming-  to  require  the  company  to  assess  and  collect 
the  tax  impaired  the  obligation  of  the  contract  between  the  state 
and  the  cc)mi)any.  The  statute  under  which  the  company  ob- 
tained the  right  to  enter  and  do  business  in  the  state  was  held  to 
be  a  contract,  and  to  preclude  the  state  from  imposing  any  addi- 
tional burdens  on  the  corporation.^^ 

§928  (770).  Exemption  of  railroad  property — Contract— Al- 
teration of  charter. — As  we  have  elsewhere  shown,  the  exemption 
of  the  property  of  a  railroad  company  may  constitute  a  part  of 
the  contract  and  l^e  within  the  provision  of  the  federal  constitu- 
tion forbidding  the  states  from  impairing  the  obligation  of  con- 
tracts.-" The  rule  which  protects  an  exemption  clause  as  part  of 
the  contract  does  not  preclude  a  state  from  enacting  a  statute 
subjecting  the  property  of  the  railroad  company  to  taxation  in 
cases  where  the  power  to  alter  or  amend  the  charter  or  act  of  in- 
corporation is  expressly  reserved.  The  reservation  of  the  right  to 
alter,  amend  or  repeal,  invests  the  state  with  ample  power  to 


52  New  York  &c.  R.  Co.  v.  Penn- 
sylvania, 153  U.  S.  628,  14  Sup.  Ct. 
952,  38  L.  ed.  846,  citing  Crutcher 
v.  Kentucky,  141  U.  S.  47,  11  Sup. 
Ct.  851,  35  L.  ed.  649;  Railroad  Co. 
V.  Jackson,  7  Wall.  (U.  S.)  262.  19 
L.  ed.  88;  St.  Louis  v.  Ferry  Co., 
11  Wall.  (U.  S.)  423,  20  L.  ed.  192; 
State  Tax  on  Foreign  Held  Bonds, 
15  Wall.  (U.  S.)  300,  21  L.  ed.  179; 
Delaware  Railroad  Tax  Case,  18 
Wall.  (U.  S.)  206,  21  L.  ed.  888; 
Clark  v.  Towa  City,  20  Wall.  (U. 
S.)  583,  22  L.  ed.  427;  liartman  v. 
Greenhow,  102  U.  S.  672,  684,  26 
L.  ed.  271;  Koslikonong  v.  Burton. 
104  U.  S.  668,  26  L.  ed.  886.  Cases 
of  Bell's  Gap  R.  Co.  v.  Pennsyl- 
vania, 134  U.  S.  232,  10  Sup.  Ct. 
533,  33  L.  ed.  892;  Jennings  v.  Coal 
Ridge  Imp.  &c.  Co.,  147  U.  S.  147, 


13  Sup.  Ct.  282,  i7  L.  ed.  116,  were 
distinguished.  See  generally  Dew- 
ey V.  Des  Moines,  173  U.  S.  193, 
19  Sup.  Ct.  379,  43  L.  ed.  665;  Com- 
monwealth V.  New  York  &c.  R. 
Co.,  129  Pa.  St.  463,  18  Atl.  412, 
15  Am.  St.  724;  South  Nashville  St. 
R.  Co.  V.  Morrow,  87  Tenn.  406, 
1 1  S.  W.  348,  2  L.  R.  A.  853.  But 
compare  Detroit  &c.  R.  Co.  v.  Ful- 
ler, 205  Fed.  86. 

■''■''  See  upon  the  general  subject 
the  elaborate  note  to  Adams  v. 
Yazoo  &c.  R.  Co.,  60  L.  R.  A.  3?,, 
ot  scq.,  and  see  also  King  v.  Madi- 
son. 17  Ind.  48;  Duluth  &c.  R.  Co. 
V  St.  Louis  County,  179  U.  S.  302, 
21  Sup.  Ct.  124,  45  L.  ed.  201;  Wil- 
mington &c.  R.  Co.  V.  Alsbrook, 
146  U.  S.  279,  13  Sup.  Ct.  92,  36  L. 
cd.  972. 


335 


TAXATION    UNDER    FEDERAL    CONSTITUTION 


§928 


withdraw  the  exemption,^*  but  where  the  rights  of  third  persons 
intervene,  and  the  alteration,  amenchnent  or  repeal  would  de- 
stroy those  rights,  the  power  to  withdraw^  the  exemption  can 
not,  as  it  has  been  held,  be  exercised. ^'^  We  suppose,  however, 
that  the  rights  of  third   persons  must  be  property  rights,  and 


•'■'*  Tomlinson  v.  Jessup,  15  Wall. 
(U.  S.)  454,  21  L.  ed.  204,  cited 
with  approval  in  New  York  &c.  R. 
Co.  V.  Bristol,  151  U.  S.  556,  14 
Sup.  Ct.  437,  38  L.  ed.  269;  Holyoke 
&c.  Co.  V.  Lyman,  15  Wall.  (U.  S.) 
500,  21  L.  ed.  133;  Hoge  v.  Rich- 
mond &c.  R.  Co.,  99  U.  S.  348,  25 
L.  ed.  303;  New  York  &c.  Co.  v. 
Waterbury,  60  Conn.  1,  22  Atl.  439; 
State  V.  Atlantic  &c.  Co.,  60  Ga. 
268;  State  v.  Miller,  1  Vroom  (N. 
J.  L.)  368,  86  Am.  Dec.  188;  State 
V.  Miller,  2  Vroom  (N.  J.  L.),  561: 
State  V.  Chambersburg,  8  Vroom 
(N.  J.  L.),  228;  West  &c.  Co.  v. 
Supervisors,  35  Wis.  257.  See  gen- 
erally Close  V.  Glenwood  Ceme- 
tery, 107  U.  S.  466,  2  Sup.  Ct.  267, 
27  L.  ed.  408;  Spring  Valley  Water- 
works V.  Schottler,  110  U.  S.  347, 
4  Sup.  Ct.  48,  28  L.  ed.  173;  Penn- 
sjdvania  College  Cases,  13  Wall. 
(U.  S.)  190,  20  L.  ed.  550;  Maine  R. 
Co.  V.  Maine,  96  U.  S.  499,  24  L. 
ed.  836;  State  v.  Maine  &c.  Co., 
66  ]Maine  488;  State  v.  Northern 
&c.  Co.,  44  Md.  131;  Ro.xbury  v. 
Boston  &c.  Co.,  6  Cash.  (Mass.) 
424,  note  in  60  L.  R.  A.  69,  et  seq.; 
St.  Paul  V.  St.  Paul  &c.  Co.,  23 
Minn.  469. 

^^  In  Tomlinson  v.  Jessup,  15 
Wall.  (U.  S.)  454,  458,  21  L.  ed. 
204,  the  court  said:  "There  is  no 
subject  over  which  it  is  of  greater 
moment  for  the  state  to  preserve 
its  power  than  that  of  taxation.    It 


has  nevertheless  been  held  by  this 
court,  not,  however,  without  occa- 
sional earnest  dissent  from  a  mi- 
nority, that  the  power  of  taxation 
over  particular  parcels  of  property, 
or  over  property  of  particular  per- 
sons or  corporations,  may  be  sur- 
rendered by  one  legislative  body, 
so  as  to  bind  its  successors  and  the 
state.  It  was  so  adjudged  at  an 
early  day  in  New  Jersey  v.  Wilson, 
7  Cranch  (U.  S.),  164,  3  L.  ed.  303; 
the  adjudication  was  affirmed  in 
Jefferson  Bank  v.  Skelly,  1  Black, 
436,  17  L.  ed.  173,  and  has  been 
repeated  in  several  cases  within 
the  past  few  years,  and  notably  so 
in  the  cases  of  The  Home  of  the 
I'^riendless  v.  Rouse,  8  Wall.  (U. 
S.)  430,  19  L.  ed.  495,  and  Wilming- 
ton Railroad  v.  Reid,  13  Wall.  (U. 
S.)  264,  20  L.  ed.  568.  In  these 
cases,  and  in  others  of  a  similar 
character,  the  exemption  is  upheld 
as  being  made  upon  considerations 
moving  to  the  state  which  give  to 
the  transaction  the  character  of  a 
contract.  It  is  thus  that  it  is 
brought  within  the  protection  of 
the  federal  constitution.  In  the 
case  of  a  corporation  the  exemp- 
tion, if  originally  made  in  the  act 
of  incorporation,  is  supported  upon 
the  consideration  of  the  duties  and 
liabilities  which  the  corporators  as- 
sume by  accepting  the  charter. 
When  made,  as  in  the  present  case, 
by  an   amendment   of  the    charter, 


S  921) 


KAILUOADS 


336 


in  the  nature  of  vested  rights,  in  order  to  preclude  a  state  from 
withdrawing-  or  annulling  the  exemption  granted  by  the  cor- 
porate charter.'"'*'  And  the  reserved  power  to  repeal,  alter  or 
amend  does  not  include  power  to  arbitrarily  violate  fundamental 
principles  and  deprive  a  corporation  of  the  equal  protection  of 
the  laws,  or  authorize  the  taking  of  property  without  due  pro- 
cess of  law.'^^ 

§929  (771).  Due  process  of  law  in  tax  proceedings. — The 
federal  constitution  requires  due  process  of  law  in  tax  proceed- 
ings, as  well  as  in  other  proceedings  where  property  rights  are 
involved.  The  requirement  of  due  process  of  law  does  not  de- 
mand that  the  person  upon  whose  property  a  tax  is  imposed  shall 
be  present  when  the  assessment  is  made.     Notice  of  some  kind  is 


it  is  supported  upon  the  considera- 
tion of  the  greater  efficiency  with 
which  the  corporation  will  thus  be 
enabled  to  discharge  the  duties 
originally  assumed  by  the  corpor- 
ators to  the  public,  or  of  the  great- 
er facility  with  which  it  will  sup- 
port its  liabilities  and  carry  out 
the  purposes  of  its  creation.  Immu- 
nity from  taxation  constituting  in 
these  cases  a  part  of  the  contract 
with  the  government,  is  by  the 
reservation  of  power  sncli  as  is 
contained  in  the  law  of  1841,  sub- 
ject to  be  revoked  equally  with  any 
other  provision  of  the  charter 
whenever  the  legislature  may  deem 
it  expedient  for  the  public  interests 
that  the  revocation  shall  be  made. 
The  reservation  affects  the  entire 
relation  between  the  state  and  the 
corporation,  and  places  under  leg- 
islative control  all  rights,  privi- 
leges, and  immunities  derived  by 
its  charter  directly  from  the  state. 
Rights  acquired  by  third  parties, 
and  which  have  become  vested,  un- 


der the  charter,  in  the  legitimate 
exercise  of  its  powers  stand  upon 
a   different  footing." 

''•^  P.rightman  v.  Kirner,  22  Wis. 
54. 

"'"  Stearns  v.  Minnesota  &c.  R. 
Co..  179  U.  S.  223,  21  Sup.  Ct.  IZ, 
45  L.  ed.  162;  Louisville  Water  Co. 
V.  Clark.  143  U.  S.  1,  12  Sup.  Ct. 
346.  36  L.  cd.  55;  St.  Louis  &c.  R. 
Co.  V.  Paul,  173  U.  S.  404,  19  Sup. 
Ct.  419,  43  L.  ed.  746.  It  was  held 
in  tlie  first  case  cited  that  the  power 
to  amend  or  repeal  a  statute  ex- 
empting a  railroad  company  from 
all  other  taxes  on  payment  of  a 
percentage  of  its  gross  earnings 
r-m  not  be  so  exercised  as  to  con- 
tinue in  full  the  obligation  as  to 
payment  of  such  percentage  and 
at  the  same  time  deny  to  the  com- 
pany the  exemption  conferred  by 
the  contract.  See  also  Dulnth  &c. 
R.  Co.  V.  St.  Louis  County,  179  U. 
S.  302.  21  Sup.  Ct.  124,  45  L.  ed. 
201. 


337 


TAXATION   UNDER   FEDERAL   CONSTITUTION 


§  1)2!) 


necessary,  but  it  need  not  be  personal  notice.'^®  Where  provision 
is  made  for  the  estabhshment  of  a  board  or  tribunal  to  value  and 
assess  property,  and  the  taxpayer  is  by  law  required  to  report  or 
return  his  property  to  such  board  or  tribunal,  the  sittings  of 
which  are  designated  by  law,  the  requirements  of  the  constitu- 
tion as  to  notice  are  satisfied. ^^ 


•"'8  Davidson  v.  New  Orleans.  96 
U.  S.  97,  24  L.  ed.  616;  Hurtado  v. 
California,  110  U.  S.  535,  536,  4 
Sup.  Ct.  292,  28  L.  ed.  238;  Hagar 
V.  Reclamation  Dist.,  Ill  U.  S.  701, 
-1  Sup.  Ct.  663,  28  L.  ed.  569;  Ken- 
tucky Railroad  Tax  Cases,  115  U. 
S.  321,  6  Sup.  Ct.  57,  29  L.  ed.  414 
Spencer  v.  Merchant,  125  U.  S.  345 
356,  8  Sup.  Ct.  921,  31  L.  ed.  763 
Palmer  v.  McMahon,  133  U.  S.  660 

10  Sup.  Ct.  324,  32,  L.  ed.  772 
Paulsen  v.  Portland,  149  U.  S.  30, 
?>7  L.  ed.  62i7;  San  jNIateo  County 
V.  Southern  Pac.  R.  Co.,  13  Fed. 
722;  Santa  Clara  Co.  v.  Southern 
Pacific  R.  Co.,  18  Fed.  385;  Scott 
V.  Toledo,  Z6  Fed.  385,  1  L.  R.  A. 
688;  Johnson  v.  Joliet  &c.  Co.,  23 
111.  124:  Garvin  v.  Daussman,  114 
Ind.  429,  16  N.  E.  826,  5  Am.  St. 
637;  Kuntz  v.  Sumption,  117  Ind. 
1,  9  N.  E.  474,  2  L.  R.  A.  665,  and 
note;  Weimer  v.  Bunbury,  30  Mich. 
201;  Trustees,  Matter  of,  31  N.  Y. 
574;  Stuart  v.  Palmer,  74  N.  Y.  183. 
30  Am.  Rep.  289;  Ford,  Matter  of, 
6  Lans  (N.  Y.)  92;  Minard  v.  Doug- 
las Co.,  9  Ore.  206;  Cooper  v. 
Board,  108  Eng.  C.  L.  R.  181.  As 
to  notice  of  publication  of  the  like, 
see  Lent  v.  Tillson,  140  U.  S.  316. 

11  Sup.  Ct.  825,  35  L.  ed.  419; 
Campbellsville  &c.  Co.  v.  Hubbert, 
112  Fed.  718:  Wabnsh  Eastern  R. 
Co.  V.  East  Lake  &c.  Dist..  134  111. 
384,  25  N.  E.  781,  10  L.  R.  A.  285, 
and  note. 


29  Pittsburgh  &c.  R.  Co.  v. 
Backus,  154  U.  S.  421,  14  Sup.  Ct. 
1114,  38  L.  ed.  1031;  Bell's  Gap  R. 
R.  Co.  V.  Pennsylvania,  134  U.  S. 
232,  10  Sup.  Ct.  533,  ZZ  L.  ed.  892; 
Kentucky  Railroad  Tax  Cases,  115 
U.  S.  321,  331,  6  Sup.  Ct.  57,  29  L. 
ed.  414;  Neal  v.  Delaware,  103  U. 
S.  370,  26  L.  ed.  567;  State  Railroad 
Tax  Cases,  92  U.  S.  609,  23  L.  ed. 
669;  Columbus  Southern  R  Co.  v. 
Wright,  151  U.  S.  470,  14  Sup.  Ct. 
396,  38  L.  ed.  238;  Weyerhaueser 
V.  Minnesota,  176  U.  S.  550,  20  Sup. 
Ct.  477,  44  L.  ed.  583;  Michigan 
Cent.  R.  Co.  v.  Powers,  201  U.  S. 
245,  26  Sup.  Ct.  459,  50  L.  ed.  744; 
St.  Louis  &c.  Co.  v.  Worthen,  52 
Ark.  529,  13  S.  W.  254,  7  L.  R.  A. 
374;  Adsit  v.  Lieb,  76  111.  198;  Por- 
ter V.  Railroad  Co.,  76  111.  561; 
Smith  V.  Rude  &c.  Co.,  131  Ind. 
150,  30  N.  E.  947;  Hyland  v.  Bra- 
zil &c.  Co.,  128  Ind.  335,  26  N.  E. 
672:  Railroad  Co.  v.  Common- 
wealth, 81  Ky.  492:  Hannibal  &c. 
Co.  V.  State  Board,  64  Mo.  294; 
State  V.  Runyon,  41  N.  J.  L.  98; 
Oregon  &c.  R.  Co.  v.  Lane  Co., 
23  Ore.  386,  31  Pac.  964.  See  also 
Corry  v.  Baltimore,  196  U.  S.  466, 
25  Sup.  Ct.  297,  49  L.  ed.  556.  But 
see  generally  Ormsby  v.  Louisville. 
79  Ky.  197.  So  it  has  been  held 
under  an  Indiana  statute  that  where 
a  railroad  company  returns  a  sche- 
dule and  valuation  of  its  personal 
property  to  the  county  auditor,  and 


§930 


RAILROADS 


838 


§930  (772).  Equal  protection  of  the  laws. — Tlu'  fourteenth 
amendment  to  the  federal  constitution  prolTil)its  the  states  from 
denying:  to  citizens  the  equal  protection  of  the  laws,  and  a  state 
statute  which  violates  the  provisions  of  the  amendment  is,  of 
course,  invahd.  There  is  no  cHfhculty  in  (h-clarini?  the  general 
rule,  and  in  asserting  that  there  may  he  a  denial  of  the  equal 
protection  of  the  laws  hy  a  statute  subjecting  railroad  property 
to  taxation.""  but  there  is  real  difficulty  in  determining  what  con- 
stitutes a  denial  of  the  equal  protection  guaranteed  by  the  federal 
constitution.  It  may  he  said,  generally,  that  where  there  is  a 
palpably  unjust  and  arbitrary  discrimination  against  railroad 
companies,  the  result  of  which  is  to  put  upon  them  an  oppressive 
burden  much  greater  and  essentially  different  from  that  ])laced 
upon  other  property  subject  to  taxation,  there  is  a  violation  of 
the  constitutional  provision,  but  merely  providing  different 
methods  of  assessing  railroad  corporations  or  providing  different 
boards  or  tribunals  from  those  provided  for  assessing  the  prop- 
erty of  other  corporations  or  persons  is  not  a  violation  of  the  con- 
stitutional provision  under  consideration." 


he  submits  it  to  the  assessor  for 
assessment,  the  company  is  not  en- 
titled to  notice  before  the  assessor 
can  make  the  assessment  at  a 
greater  vakiation  than  that  re- 
turned by  the  company.  Chicago 
&c.  R.  Co.  V.  John,  ISO  Ind.  113. 
48  N.  E.  640.  See  also  Hubbard 
V.  Goss,  157  Ind.  485,  62  N.  E.  36. 
Collection  has  been  enjoined  for 
want  of  an  opportunity  to  be  heard. 
Negley  v.  Henderson  Bridge  Co., 
107  Ky.  414,  54  S.  W.  171. 

60  In  Santa  Barbara  Co.  v.  South- 
ern Pacific  R.  Co.,  18  Fed.  385,  399, 
the  (|ucstion  was  ably  discussed  by 
.Mr.  Justus  Field,  who  said  inter 
alia:  "It  is  a  matter  of  history  that 
unequal  and  discriminating  taxa- 
tion, leveled  against  special  classes, 
has  been  the  fruitful  means  of  op- 
pression,   and    the    cause   of    more 


commotions  and  disturbances  in  so- 
ciety, of  insurrections  and  revolu- 
tions than  any  other  cause  in  the 
world.  It  would  indeed  be  a  charm- 
ing spectacle  to  present  to  the  civ- 
ilized world,  as  counsel  in  the  San 
Mateo  ironically  observed,  if  the 
amendment  were  to  read,  as  con- 
tended it  does  in  law,  'Nor  shall 
any  state  deprive  any  person  of  his 
property  without  due  process  of 
law,  except  it  be  in  the  form  of 
taxation,  nor  denj'  to  any  person 
within  its  jurisdiction  the  equal 
protection  of  the  law,  except  it  be 
l)y    taxation.'  " 

'■1  Cincinnati  &c.  Co.  v.  Kentucky, 
115  U.  S.  321,  6  Sup.  Ct.  57,  29  L. 
cd.  414;  Missouri  v.  Lewis,  101  U. 
S.  22,  30,  25  L.  ed.  989;  Columbus 
Southern  R.  Co.  v.  Wright,  151  U. 
S.  470,   14  Sup.   Ct.  396,  38  L.  ed. 


^39 


TAXATION    UNDER   FEDERAL    CONSTITUTION 


§931 


§931    (772a).     Equal  protection  of  the  laws — Continued. — On 

this  subject  it  has  been  very  aptly  observed  by  one  court  "that  it 
\s-as  not  designed  by  the  fourteenth  amendment  to  the  constitu- 
tion to  prevent  a  state  from  changing  its  system  of  taxation  in  all 
jvroper  and  reasonable  ways,  nor  to  compel  states  to  adopt  an 
iron  rule  of  equality,  to  prevent  the  classification  of  property  for 
purposes  of  taxation,  or  the  imposition  of  different  rates  upon 
different  classes.  It  is  enough  that  there  is  no  discrimination  in 
favor  of  one  as  against  another  of  the  same  class,  and  the  method 
for  the  assessment  and  collection  of  the  tax  is  not  inconsistent 
with  natural  justice.'"'"     Thus,  it  has  been  held  that  a  street  rail- 


238:  State  Railroad  Tax  Cases,  92 
U.  S.  575,  23  I.,  ed.  663;  Charlotte 

e^c.  R.  Co.  V.  Gibbes,  142  U.  S.  386, 
12  Sup.  Ct.25S,  35  L.  ed.  1051;  Min- 
neapolis &c.  R.  Co.  V.  Beckwith,  129 
U.  S.  26,  9  Sup.  Ct.  207,  32  L.  ed. 
585;  Columbus  &c.  Co.  v.  Wright, 
89  Ga.  574,  15  S.  E.  293;  Cleveland 
&c.  Co.  v.  Backus,  133  Ind.  513,  33 
N.  E.  421,  18  L.  R.  A.  729;  Cin- 
cinnati &c.  Co.  v.  Commonwealth, 
81  Ky.  492.  See  also  Western  Un- 
ion Tel.  Co.  V.  Indiana,  165  U.  S. 
304,  17  Sup.  Ct.  345,  41  L.  ed.  725; 
W.  W.  Cargill  Co.  v.  Minnesota, 
180  U.  S.  452,  21  Sup.  Ct.  423,  45 
L.  ed.  619;  Michigan  Cent.  R.  Co. 
V.  Powers,  201  U.  S.  245.  26  Sup. 
Ct.  459,  462,  50  L.  ed.  744,  and  au- 
thorities there  cited.  Ante  §§  888, 
890.  906. 

62  Wanty,  J.,  in  ^Michigan  Rail- 
road Tax  Cases,  138  Fed.  223,  cit- 
ing: Bell's  Gap  R.  Co.  v.  Pennsyl- 
vania, 134  U.  S.  232,  10  Sup.  Ct. 
S33.  33  L.  ed.  892;  Giozza  v.  Tier- 
nan,  148  U.  S.  657-662,  13  Sup.  Ct. 
721,  37  L.  ed.  599:  Adams  Express 
Co.  V.  Ohio,  165  U.  S.  194-288,  17 
Sup.  Ct.  305,  41  L.  ed.  683:  Magoun 
V.  Illinois  &c.  Bank,  170  U.  S.  283, 
18  Sup.  Ct.  594.  42  L.  ed.  1037:  Bil- 
lings  V.    Illinois,    188   U.    S.    97.   23 


Sup.  Ct.  272,  47  L.  ed.  400;  Mer- 
chants' &c.  Bank  v.  Pennsylvania, 
167  U.  S.  461,  17  Sup.  Ct. '829,  42 
L.  ed.  236;  Kentucky  Railroad  Tax 
Cases,  115  U.  S.  321,  6  Sup.  Ct.  57, 
29  L.  ed.  414;  Home  Ins.  Co.  v. 
New  York,  134  U.  S.  594,  10  Sup. 
Ct.  593,  33  L.  ed.  1025:  Gulf  &c. 
R.  Co.  V.  Ellis,  165  U.  S.  150,  17 
Sup.  Ct.  255,  41  L.  ed.  666;  Clark 
V.  Titusville,  184  U.  S.  329,  22  Sup. 
Ct.  382,  46  L.  ed.  569;  American 
Sugar  Refining  Co.  v.  Louisiana, 
179  U.  S.  89,  21  Sup.  Ct.  43,  45  L. 
ed.  102;  New  York  v.  Barker,  179 
U.  S.  279,  21  Sup.  Ct.  121,  45  L.  ed. 
194;  Charlotte  &c.  R.  Co.  v.  Gibbes. 
142  U.  S.  386,  12  Sup.  Ct.  255,  35  L. 
ed.  1051:  Traveler's  Ins.  Co.  v. 
Connecticut,  185  U.  S.  364,  22  Sup. 
Ct.  673,  46  L.  ed.  949:  Kidd  v.  Ala- 
bama, 188  U.  S.  730,  23  Sup.  Ct. 
401,  47  L.  ed.  669;  Turpin  v.  Lemon, 
187  U.  S.  51,  23  Sup.  Ct.  20,  47  L. 
ed.  70:  Florida  &c.  R.  Co.  v.  Rey- 
nolds. 183  U.  S.  471,  22  Sup.  Ct. 
176,  46  L.  ed.  283.  Judge  Wanty "s 
opinion,  from  which  we  have 
quoted,  is  approved  in  ^Michigan 
Cent.  R.  Co.  v.  Powers,  201  U.  S. 
245.  26  Sup.  Ct.  459.  462,  50  L.  ed. 
744. 


§932 


RAILROADS 


340 


wav  company  was  not  denied  the  equal  protection  of  tlie  laws 
by  a  municipal  tax  on  its  business  at  a  specified  rate  per  mile,  or 
fraction  of  a  mile  of  its  trackati:e  in  the  city  streets,  because  a 
steam  railwa}-  making-  an  extra  charge  for  local  deliveries  on 
freight  brought  over  its  road  from  outside  the  city  was  not  also 
:ui])jected  to  this  tax.''" 

§932  (773).  Equal  protection  of  the  laws — Corporations  are 
persons. — Railroad  corporations  are  persons  within  the  meaning 
of  the  constitution,  and  can  not  be  denied  the  equal  protection  of 
the  laws.''*  Corporations  are  not,  however,  within  the  constitu- 
tional provision  which  declares  that  "citizens  of  each  state  shall 
be  entitled  to  all  i)rivileges  and  immniiities  of  citizens  of  the 
several  states."'"'^  The  distinction  made  l^etween  the  two  clauses 
of  the  federal  constitution  is  an  important  one,  but  does  not  exert 
a  direct  influence  upon  the  subject  under  immediate  discussion, 
yet  it  seems  necessary  to  refer  to  it  in  order  to  prevent  possible 
confusion. 


63  Savannah  &c.  R.  Co.  v.  Savan- 
nali.  198  U.  S.  392.  25  Sup.  Ct.  690, 
49  L.  ed.  1097.  The  application  to 
railroad  property  of  the  average 
rate  of  taxation  of  other  property- 
has  also  been  upheld.  Michigan 
Cent.  R.  Co.  v.  Powers,  201  U.  S. 
245,  26  Sup.  Ct.  459,  50  L.  cd.  744. 
See  also  Boston  &c.  R.  Co.  v. 
State,  60  N.  H.  87;  Gottlieb  v.  Met- 
ropolitan Street  R.  Co.,  161  Mo. 
189,  199,  61  S.  W.  603. 

64  Pembina  &c.  Mining  Co.  v. 
Pennsylvania,  125  U.  S.  181,  8  Sup. 
Ct.  12,1,  31  L.  ed.  650;  Southern  R. 
Co.  V.  Greene,  216  U.  S.  400.  30 
Sup.  Ct.  287,  289,  54  L.  ed.  536; 
Santa  Clara  County  v.  Southern 
Pacific  R.  Co.,  118  U.  S.  394,  6  Sup. 
Ct.  1132,  30  L.  ed.  118;  Minneapolis 
&c.  R.  Co.  V.  Beckwith,  129  U.  S. 
26,  9   Sup.   Ct.  207,  32   L.  ed.  585; 


Cleveland  &c.  R.  Co.  v.  Backus, 
133  Ind.  513,  2>i  X.  E.  421,  18  L.  R. 
A.  729.  See  also  Atchison  &c.  R. 
Co.  V.  Clark,  60  Kans.  826,  58  Pac. 
477,  47  L.  R.  A.  11.  But  compare 
Northwestern  Nat.  Life  Ins.  Co.  v. 
Riggs,  203  U.  S.  243,  27  Sup.  Ct. 
126,  51  L.  ed.  168. 

G'-'Paul  V.  Virginia,  8  Wall.  (U. 
S.)  168,  19  L.  ed.  357;  Railroad  Co. 
V.  Koontz,  104  U.  S.  5,  26  L.  ed. 
643;  Pensacola  Tel.  Co.  v.  Western 
Union  Tel.  Co.,  96  U.  S.  1,  19,  24 
L.  ed.  708;  Ducat  v.  Chicago,  10 
Wall.  (U.  S.)  410,  19  L.  ed.  972; 
Lafayette  Ins.  Co.  v.  French,  18 
How.  (U.  S.)  404,  15  L.  ed.  340; 
Doyle  V.  Continental  Ins.  Co.,  94 
U.  S.  535,  539,  24  L.  ed.  148;  Elston 
V.  Piggott,  94  Ind.  14.  17;  People 
V.  Fire  Association,  92  N.  Y.  311, 
44  Am.  Rep.  380,  and  note. 


;j41  TAXATION    UNDER    FEDERAL    CONSTITUTION  §  933 

§933  (774).  Equal  protection  of  the  laws  —  What  is  a 
denial  of.  —  We  suppose  that  a  tax  designedly  made  un- 
equal and  intended  to  impose  upon  a  special  class  a  bur- 
den clearly  unjust  and  plainly  beyond  that  imposed  upon 
other  classes  of  persons  would  come  within  the  prohibition 
of  the  fourteenth  amendment,  for  a  tax  which  would  bur- 
den a  special  class  grossly  more  than  other  classes  would 
be  a  denial  of  the  fundamental  principle  of  law  that  the 
burden  of  taxation  shall  be  equalized  as  nearly  as  practicable. 
We  do  not  mean,  of  course,  that  there  must  be  absolute  equality, 
nor,  indeed,  that  there  must  be  substantial  equality  or  uniformity. 
There  probably  never  was  a  tax  levied  that  was  truly  uniform 
and  equal,  and,  certainly,  the  federal  tribunals  w^ould  not  inter- 
fere where  nothing  more  than  inequality  was  shown,  even  though 
the  inequality  be  manifest  and  material.  It  can  not  be  justly- 
said  that  there  is  a  denial  of  the  equal  protection  of  the  law&. 
where  there  is  a  simple  error  of  judgment  or  an  unwise  or  even 
unjust  exercise  of  legislative  discretion,  but  there  may  be  a  denial 
of  the  equal  protection  of  the  law^s  where  there  is  a  design  and 
purpose  to  relieve  from  taxation  many  classes  by  placing  an  un- 
just, oppressive  and  unequal  burden  upon  a  special  class. '^*'     It 


66  In  the  case  of  Bell's  Gap  R.  of  money;  it  may  allow  deductions 
Co.  V.  Pennsylvania,  134  U.  S.  232,  for  indebtedness  or  not  allow  them. 
10  Sup.  Ct.  533,  33  L.  ed.  892,  the  All  such  regulations,  and  those  of 
court  said:  "The  provision  in  the  like  character,  so  long  as  they  pro- 
fourteenth  amendment  that  no  state  ceed  within  reasonable  limits  and 
shall  deny  to  any  person  within  its  general  usage,  are  within  the  dis- 
jurisdiction  the  equal  protection  of  cretion  of  the  state  legislature  or 
the  laws,  was  not  intended  to  pre-  the  people  of  the  state  in  framing 
vent  a  state  from  adjusting  its  sys-  their  constitution.  But  clear  and 
tern  of  taxation  in  all  proper  and  hostile  discriminations  against  par- 
reasonable  ways."  It  was  also  said:  ticular  persons  and  classes,  espe- 
"It  may  impose  different  specific  cially  such  as  are  of  an  unusual 
taxes  upon  different  trades  and  pro-  character  and  unknown  to  the  prac- 
fessions,  and  may  vary  the  rates  tice  of  our  governments,  might  be 
of  excise  upon  various  products;  obnoxious  to  the  constitutional 
it  may  tax  real  estate  and  personal  prohibition.  It  would,  however,  be 
property  in  a  different  manner;  it  unwise  and  impracticable  to  lay 
may  tax  visible  property  only,  and  down  any  general  rule  or  definition 
not  tax  securities  for  the  payment  on   the   subject  that  would   include 


^;  933  RAILROADS  342 

may  be  true  that,  where  the  statute  so  operates  as  to  place  an 
unjust  and  ()p])ressive  burden  upon  a  special  class,  it  will  be  held 
invalid,  although  it  can  not  be  said  that  there  was  a  formed 
design  or  purpose  to  make  an  unjust  discrimination,"^  but  this 
could  be  true  only  in  an  extreme  case,  where,  to  permit  the  stat- 
ute to  stand,  would  be  to  practically  authorize  confiscation  of 
property  or  to  uphold  an  enforced  and  unequal  contribution  to 
the  revenue  of  the  state.  A  recent  Missouri  case  seems  to  dis- 
close a  plain  contravention  of  the  equal  protection  clause  of  the 
federal  constitution.  The  voters  of  that  state  in  1900  ratified  an 
amendment  to  the  state  constitution  which  authorized  the  county 
courts,  in  the  several  counties  in  the  state  not  under  township 
organization,  and  the  township  board  of  directors  in  counties 
under  township  organization,  in  their  discretion,  to  levy  an  addi- 
tional tax  of  fifteen  mills,  to  be  used  for  road  and  bridge  purposes, 
and  exempted  from  its  operation  the  cities  of  St.  Louis,  Kansas 
City  and  St.  Joseph.  Two  of  the  cities — Kansas  City  and  St. 
Joseph — were  located  in  counties  containing  other  towns  and 
villages  not  subject  to  the  exemption,  which  made  the  provision 
a  plain  violation  of  the  rule  that  taxes  must  be  uniform  and 
equal,  co-extensive  with  the  territory  to  which  the  tax  applies. 
The  state  Supreme  Court  found  no  difficulty  in  holding  that  the 
amendment  denied  to  some  of  the  persons  within  the  state  the 
equal  protection  of  the  laws  guaranteed  by  the  constitution.*'^ 

all  cases.    They  must  be  decided  as  its  cliaracter.  Yick  Wo  v.  Hopkins, 

they    arise."      The    court    adopted  118  U.  S.  356,  6  Sup.   Ct.  1064,  30 

the  rule  stated  in  Barbier  v.  Con-  I.,  ed.  220;  Westerfield,   Ex   parte, 

nolly,  113  U.  S.  27.  31,  5  Sup.  Ct.  55  Cal.  550,  36  Am.  Rep.  47;  Nich- 

357,  28  L.  ed.  923.     See  also  Greene  nls  v.  Walters,  VI  Minn.  264,  ZT)  N. 

V.  Louisville  &c.  R.  Co.,  244  U.  S.  \V.  800:  State  v.  Hermann,  75  Mo. 

499,  Zl  Sup.  Ct.  673,  61  L.  ed.  1280  .^^40:  State  v.  The  Judges,  21  Ohio 

(injunction    granted    against    state  St.  1.     See  also  Henderson  v.  New 

officers);   Louisville   &c.   R.   Co.  v.  York.  92  U.  S.  259,  23  L.  ed.  543; 

Greene,  244  U.  S.  522,  37  Sup.  Ct.  Hannibal   &c.  R.   Co.  v.  Husen,  95 

683,    61    L.    ed.    1291,    (also    stating  LT.  S.  465,  24  L.  ed.  527;  Easton  v. 

rules    for    valuation    of    intangible  Icnva,    188   U.    S.   220,   23    Sup.    Ct. 

property  and   for  mileage).  288,  47  L.  ed.  452. 

67  The    operation    of    a    statute,  '^^  State   v.    Chicago    &c.    R.    Co., 

rather    than    its    form,    determines  195  Mo.  228,  93  S.  W.  784, 


343  TAXATION    UNDER   FEDERAL    CONSTITUTION  §  934 

§934  (775).  Fourteenth  amendment  —  Unequal  taxation  — 
Generally. — It  is  difficult  to  precisely  detine  the  line  which  separ- 
ates the  rightful  domain  of  a  state  from  the  domain  of  the  federal 
government  in  the  field  of  taxation  for  general  revenue  purposes 
and  declare  when  the  federal  judiciary  may  rightfully  interfere. 
That  a  tax  levied  by  a  state  legislature  may  be  so  grossly  unequal 
and  so  palpably  unjust  that  the  federal  tribunals  will  overthrow 
the  statute  which  levies  the  tax  seems  clear,  but  what  will  con- 
stitute the  inequality  or  unjust  discrimination  that  will  authorize 
the  exercise  of  the  federal  jurisdiction  is  as  yet  clouded  by  con- 
fusion and  doubt.  There  must  be  inequality  great  enough  to  be 
justly  characterized  as  a  denial  of  the  equal  protection  of  the 
laws,  for,  manifestly,  if  all  persons  are  treated  alike,  although  the 
burdens  imposed  may  be  unjust  and  oppressive,  the  jurisdiction 
of  the  federal  tribunals  can  not  be  successfully  invoked.^^  It  is 
not  a  question  of  hardship  or  oppression,  but  of  unjust  discrimi- 
nation against  a  class  of  persons  or  property  resulting  in  an  in- 
equality of  taxation,  constituting  a  denial  of  the  equal  protection 
of  the  laws. 

§935   (776).     Classification  not  a  denial  of  equal  protection. — 

A  state  is  not  bound  to  provide  the  same  method  of  taxing  all 
classes  of  property,  but,  as  we  have  elsewhere  shown,  the  legis- 
lature has  a  choice  of  methods,  so  that  in  classifying  property  for 
taxation  and  prescribing  modes  for  valuing  and  assessing  it  there 
is  no  transgression  of  the  fourteenth  amendment,  provided  there 
is  no  hostile  and  unjust  discrimination.  It  is  possible  to  pre- 
scribe a  method  that  necessarily  discriminates  against  a  special 
class  to  such  an  extent  as  to  deprive  it  of  the  equal  protection  of 
the  laws,  but  this  result  does  not  follow  simply  because  the 
method  adopted  is  unwise  or  leads  to  some  inequality.'^"     It  is 

69  In     the     case     of     San     :\Iateo  See    also    Merchants'    &c.    Bank   v. 

County  V.  Southern  Pacific  R.  Co.,  Pennsylvania,     167    U.    S.    461,    17 

13  Fed.  722,  Mr.  Justice  Field  said:  Sup.   Ct.  829,   42   L.   ed.   236;    Pea- 

"It    is    uiidoubtedly    true    that    the  cock  v.  Pratt,  121   Fed.  772. 

hardship  and  injustice  of  a  tax  lev-  ''^  Home   Ins.   Co.  v.   New  York, 

ied    by   the    state,    considered   with  134  U.   S.   594,    10  Sup.  Ct.  593,  33 

reference    to    its    amount,    are    not  L.  ed.  1025;  Pacific  Express  Co.  v. 

subjects     of     federal     cognizance."  Seibert,   142  U.  S.  339,  12  Sup.  Ct. 


§  936  RAILROADS  344 

not  enough,  as  we  believe,  to  bring  a  case  within  the  constitu- 
tional prohibition  that  there  be  some  discrimination,  for  mere 
discrimination  can  not  be  said  to  be.  of  itself,  a  denial  of  the 
equal  protection  of  the  laws.  But  there  may  be  such  discrimi- 
nation and  arbitrary  classification  as  to  bring  the  case  within  the 
provisions  of  the  fourteenth  amendment  and  entitle  the  corpora- 
tion to  its  protection."^ 

§936  (777).  Fourteenth  amendment — Tax  for  salaries  of 
railroad  commissioners. — The  extent  to  which  a  state  may  go 
without  violating  the  pro\isions  of  the  fourteenth  amendment  is 
strikingly  illustrated  by  the  cases  which  adjudge  that  railroad 
companies  may  be  taxed  to  pay  the  salaries  of  the  members  of  a 
railroad  commission.'"  This  seems  to  us  a  very  strong  assertion 
of  the  power  of  the  states,  and,  with  all  deference  to  the  great 
tribunal  which  asserted  the  doctrine,  a  very  dangerous  and  doubt- 
ful rule.  The  reasoning  of  the  court  necessarily  leads  to  the  con- 
clusion that  like  commissions  may  be  created  for  all  classes  of 
corporations  having  duties  and  powers  of  a  public  nature,  and  the 
business  of  maintaining  them  imposed  on  such  corporations,  and 
this  would  be  to  put  upon  them  a  much  heavier  and  essentially 

250,  35  L.  ed.   1035;   Charlotte   &c.  245,  26  Sup.  Ct.  459,  50  L.  ed.  744, 

R.  Co.  V.  Gibbes,  142  U.  S.  386,  12  and  authorities  there  cited;  Coulter 

Sup.  Ct.  255,  35   L.  ed.   1051;  Mis-  v.  Louisville  &c.  R.  Co.,  196  U.  S. 

souri  &c.  R.  Co.  V.  Mackey,  127  U.  599,  25  Sup.  Ct.  342,  49  L.  ed.  615; 

S.  205,  8   Sup.   Ct.   1161,  32  L.   ed.  Cleveland    &c.    R.    Co.    v.    Backus, 

107.     See  generally  Kentucky  Rail-  133  Ind.  513,  33  N.  E.  421,  18  L.  R. 

road   Tax   Cases,   115   U.   S.  321.  6  A.  729. 

Sup.    Ct.    57,   29    L.    ed.   414:    State  "i  A  recent  case   illustrating  this 

Railroad  Tax  Cases,  92  U.  S.  575,  is   Southern   R.   Co.  v.  Greene,  216 

23  L.  ed.  663;  Brushaber  v.  Union  U.  S.  400,  30  Sup.  Ct.  287,  54  L.  ed. 

Pac.  R.  Co.,  240  U.  S.  1,  36  Sup.  Ct.  536,    already    reviewed    in    another 

236,  60  L.  ed.  493,  L.  R.  A.  1917D,  section. 

414;  Pittsburgh  &c.  R.  Co.  v.  Back-  "-  Charlotte  &c.  R.  Co.  v.  Gibbes. 

us,  154  U.  S.  421,  14  Sup.  Ct.  1114.  142  U.  S.  386,  12  Sup.  Ct.  255,  35  L. 

38  L.  ed.  1031;  Cleveland  &c.  R.  Co.  td.  1051.     Citing  Georgia  &c.  Rank- 

V.   Backus,   154  U.   S.  439,   14  Sup.  ing  Co.  v.  Smith,  128  U.  S.  174,  9 

Ct.    1122,  38   L.   ed.   1041;    Dow   v.  Sup.    Ct.    47.   32    L.    ed.   377;    New 

Beidelman,   125   U.   S.   680,   8   Sup.  York  v.   Squire,   145  U.   S.   175,  12 

Ct.   1028,  31    L.  ed.  841;   Michigan  Sup.  Ct.  880,  36  L.  ed.  666. 
Cent.   R.  Co.  v.  Powers,  201  U.  S. 


345  TAXATION    r.VDKR    FEDERAL    COXSTITITIOX  §  937 

different  burden  from  that  imposed  upon  other  l)odies  politic  and 
corporate.  It  is  to  be  noted,  we  may  properly  say  in  passing, 
that  the  decisions  of  the  Supreme  Court  go  only  to  the  federal 
s'de  of  the  question,  and  ha\e  no  direct  influence  upon  a  question 
arising  under  a  state  constitution  forbidding  special  legislation 
and  requiring  equality  and  uniformity  of  taxation."'' 

§937  (778).  Corporations  deriving  rights  from  the  United 
States. — The  property  of  a  private  corporation  having  its  situs 
in  a  state  may  be  taxed  by  the  state,  although  the  corporation 
may  derive  privileges  and  franchises  from  the  United  States.  It 
is  the  property  that  is  the  subject  of  taxation,  for  in  the  case  of 
an  interstate  corporation  the  business  or  operations  can  not  be 
taxed  by  the  state,  since  that  would  be  to  tax  interstate  com- 
merce itself.  It  is  important,  in  all  phases  of  the  subject,  to  keep 
in  mind  the  distinction  between  taxing  the  property  of  an  inter- 
state corporation  situated  within  the  boundaries  of  a  state  and 
taxing  the  business  or  operation  of  the  corporation  engaged  in 
carrying  articles  of  commerce  from  state  to  state,  for  confusion 
will  result  if  this  distinction  is  not  observed.'* 

§938  (779),  Land  grants. — Land  granted  to  a  railroad  com- 
pany by  the  United  States  is  subject  to  taxation  by  the  state  in 
which  the  land  is  situated,  and  this  is  true,  although  the  railroad 
company  transports  freight  and  passengers  for  the  government.'^^ 
The  conclusion  stated  seems  to  us  the  just  one,  but  there  was 
stubborn  conflict  of  opinion  upon  the  question  when  it  was  be- 

'3  See    Atchison    &c.    R.    Co.    v.  ed.  380.    That  the  franchise  granted 

Howe,  32  Kans.  IZl,  5  Pac.  397.  by  congress  can  not  be  taxed  by  a 

'*  Railroad    Co.    v.    Peniston,    18  state,  see  California  v.  Central  Pac. 

Wall.    (U.    S.)    5,    21    L.    ed.    787;  R.  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073, 

Thomson  v.  Pacific  R.  Co.  9  Wall.  32  L.  ed.   150;  Keokuk  &c.  Bridge 

(U.  S.)   579,  19  L.  ed.  792;  Reagan  Co.   v.    Illinois,    175   U.    S.    626,    20 

V.  Mercantile  Trust  Co.,  154  U.  S.  Sup.  Ct.  205,  44  L.  ed.  299. 
413.    14    Sup.    Ct.    1060,    38    L.    ed.  "  Railroad  Company  v.  Peniston, 

1028;   Western   Union   Tel.    Co.   v.  18  Wall.   (U.   S.)   5,  21   L.  ed.  787; 

Massachusetts,     125    U.    S.    530,    8  Lane    County   v.    Oregon,    7   Wall. 

Sup.    Ct.    961,    31    L.    ed.    790;    St.  (U.  S.)  71,  19  L.  ed.  101;  Thomson 

Louis  V.   Western   Union   Tel   Co.,  v.  Pacific  Railroad,  9  Wall.  (U.  S.) 

148  U.  S.  92,  13  Sup.  Ct.  485,  11  L.  579.  19  L.  ed.  792:  Reagan  v.  Mer- 


939 


H  AILROADS 


346 


fore  the  court.  It  land  becoiiK-s  the  i)roi)erty  of  a  i)rivatc  corpora- 
tion, yielding"  to  that  corporation  revenue  and  profits,  it  is  justly 
taxalde,  no  matter  from  what  grantor  the  land  was  derived,  nor 
is  the  question,  as  we  believe,  changed  by  the  fact  that  use  is 
made  of  the  railroad  by  the  general  government,  for.  after  all, 
the  corporation  exists,  and  its  business  is  conducted  for  the 
private  benefit  of  its  stockholders. 

§939  (780).  Domestic  commerce. — Intrastate  or  domestic 
commerce  is  under  the  dominion  of  the  state,  for  it  is  only  com- 
merce between  the  states  upon  which  the  commerce  clause  of  the 
federal  constitution  operates.'^^  The  state  may  regulate  domestic 
commerce  alone  as  it  deems  proper,  unaffected  by  the  clause  of 


cantile  Trust  Co.,  154  U.  S.  413. 
14  Sup.  Ct.  1060.  38  L.  ed.  1028; 
Reagan  v.  Farmers'  Loan  &c.  Co., 
154  U.  S.  362,  14  Sup.  Ct.  1047,  38 
L.  ed.  1014;  citing  Railroad  Com- 
mission Cases,  116  U.  S.  307.  6 
Sup.  Ct.  334,  29  L.  ed.  6?>6\  Mer- 
cantile Trust  Co.  V.  Texas  R.  Co., 
51  Fed.  529.  See  generally  Chicago 
&c.  Co.  V.  Davenport,  51  Iowa  451. 
1  N.  W.  720;  West  &c.  R.  Co.  v. 
Supervisors,  35  Wis.  257.  But 
where  land  is  granted  by  the 
United  States,  it  is  not  taxable  by 
the  state  until  the  title  vests  in  the 
grantee.  Railway  Co.  v.  Prescott. 
16  Wall.  (U.  S.)  603,  21  L.  ed.  Z7Z; 
Cass  Co.  v.  Morrison,  28  Minn. 
257,  9  N.  W.  761:  Wheeler  v.  Mer- 
riman,  30  Minn.  372,  15  N.  W.  665. 
See  upon  the  general  subject,  Mc- 
Gregor &c.  Co.  v.  Brown,  39  Iowa 
655;  Grant  v.  Iowa  &c.  R,  Co.,  54 
Iowa  673,  7  N.  W.  113;  Doe  v.  Iowa 
&c.  R.  Co.,  54  Iowa  657,  7  N.  W. 
118;  Hunnewell  v.  Cass  County,  22 
Wall.  (U.  S.)  464,  22  L.  ed.  752; 
Colorado  Co.  v.  Commissioners.  95 
U.  S.  259,  24  L.  ed.  495;  Litchfield 


V.  Webster  County,  101  U.  S.  77i, 
25  L.  ed.  925;  Central  &c.  Co.  v. 
Howard,  52  Cal.  227. 

"^  Postal  Tel.  Cable  Co.  v. 
Charleston.  153  U.  S.  692,  14  Sup. 
Ct.  1094,  38  L.  ed.  871;  Home  Ins. 
Co.  v.  Augusta,  93  U.  S.  116,  23 
L.  ed.  825:  Ralterman  v.  Western 
Union  Tel.  Co.,  127  U.  S.  411,  8 
Sup.  Ct.  1127,  32  L.  ed.  229;  Lehigh 
\'alley  R.  Co.  v.  Pennsylvania,  145 
U.  S.  192,  12  Sup.  Ct.  806,  2,6  L. 
ed.  672;  Western  Union  Tel.  Co.  v. 
Alabama  State  Board,  132  U.  S. 
472,  10  Sup.  Ct.  161,  Z:^  L.  cd.  409: 
Pacific  Express  Co.  v.  Seibert,  142 
U.  S.  339,  12  Sup.  Ct.  250,  35  L.  ed. 
1035:  Western  Union  Tel.  Co.  v. 
Charleston.  56  Fed.  419,  citing 
Western  Union  Tel.  Co.  v.  Massa- 
chusetts. 125  U.  S.  530.  8  Sup.  Ct. 
961.  31  L.  ed.  790;  Knoxville  &c. 
R.  Co.  V.  Harris,  99  Tenn.  684,  43 
S.  W.  115,  53  L.  R.  A.  921;  Dela- 
ware &c.  Co.  V.  Commonwealth,  2 
Inters.  Com.  R.  222,  1  L.  R.  A. 
232.  But  see  People  v.  Morgan, 
168  N.  Y.  1.  60  N.  E.  1041.  In  the 
case  of  Western  Union  Tel.  Co.  v. 


347 


TAXATION    UNDER   FEDERAL    CONSTITITION 


§939 


the  national  constitution,  which  governs  the  subject  of  interstate 
commerce,  but  a  state  can  not,  of  course,  enact  any  statute  in 
reference  to  domestic  commerce  which  will  impair  the  obliga- 
tion of  a  contract,  deny  the  equal  protection  of  the  laws,  or  violate 
any  other  provisions  of  the  federal  constitution. 


Texas,  105  U.  S.  460,  26  L.  ed. 
1067,  a  distinction  between  inter- 
state and  domestic  commerce  was 
drawn  and  it  was  held  that  prop- 
ert}-  within  the  state  was  subject 
to  taxation.  The  question  was  con- 
sidered in  the  case  of  Lehigh  Val- 
ley R.  Co.  V.  Pennsylvania,  145  U. 
S.  192,  12  Sup.  Ct.  806,  36  L.  ed. 
672,  where  it  was  said:  "Taxation 
is  undoubtedly  one  of  the  forms  of 
regulation,  but  the  power  of  each 
state  to  tax  its  own  commerce,  and 
the  franchises,  property  or  business 
of  its  own  corporations  engaged  in 
such  commerce  has  always  been 
recognized,  and  the  particular  mode 


of  taxation  in  this  instance  is  con- 
ceded to  be  in  itself  not  open  to 
objection,  and  while  interstate  com- 
merce can  not  be  regulated  by  a 
state  by  the  laying  of  taxes  thereon 
in  any  form,  yet  whenever  the  sub- 
ject of  taxation  can  be  separated, 
so  that  which  arises  from  inter- 
state commerce  can  be  distinguish- 
ed from  that  which  arises  from 
commerce  wholly  within  the  state, 
the  distinction  will  be  acted  upon 
by  the  courts,  and  the  state  per- 
mitted to  collect  that  arising  upon 
commerce  solely  within  its  own 
territorJ^" 


CHAPTER  XXXI I 


LOCAL  ASSESSMENTS 


Sec.  Sec. 

945.  Assessments   and   ta.xes — Dis-       953. 

tinction. 

946.  Local  assessments — Power  to       954. 

levy. 

947.  Statute      must     be     complied       955. 

with. 

948.  Property  subicct  to  local   as- 

sessment— General   rule.  956. 

949.  Property   of   railroad    compa- 

nies. 957. 

950.  Right  of  way — Whether  sub- 

ject to  assessment.  958. 

951.  Abuttinp:  property  —  Right  of 

way  is  not.  959. 

952.  Whether   street   railroads   are 

subject  to  assessment. 


Right    of    way— Mode    of    as- 
sessing. 

Assessment  for  drainage  pur- 
poses. 

P>ridges    over    natural    water 
courses  utilized  for  drainage 
purposes. 

Lien  of  the  assessment — Per- 
sonal liability. 

Property   secondarily  liable — 
Back-lying   propertj'. 

Assessment   of    right    of   way 
— Enforcing  assessment. 

Procedure. 


§945  (781).  Assessments  and  taxes — Distinction. — There  is 
a  broad  distinction  between  a  local  assessment  and  a  tax  levied 
for  the  purpose  of  raising  governmental  revenue,^  The  principal 
ground  for  the  distinction  is  that  local  assessments  are  founded 
upon  the  theory  that  there  is  a  special  benefit  resulting  from  the 
expenditure  of  the  money  derived  from  the  assessment,  while  in 
the  case  of  ordinary  taxes  there  is  a  common  benefit.  Taxes 
proper,  or  ordinary  taxes,  are  levied  upon  all  property  except 
certain  classes  specially  exempted,  such  as  property  used  for 
religious,  charitable   and  kindred   purposes,   in   order   to   secure 


,  ^  Roosevelt  Hospital  v.  INLiyor, 
84  N.  Y.  108.  In  Mix  v.  Ross,  57 
111.  121,  it  is  said:  "There  is  a  plain 
distinction  between  taxes,  which 
are  burdens  or  charges  imposed 
upon  persons  or  property  to  raise 
money  for  public  purposes,  and  as- 
sessments   for    city    or    village    im- 


provements, which  are  not  regard- 
ed as  burdens,  but  as  an  equivalent 
(ir  compensation  for  the  enhanced 
value  which  the  propertj^  of  the 
person  assessed  has  derived  from 
the  improvement."  See  also  El- 
liott Roads  and  Streets  (3d  ed.), 
§§  662,  667.  670. 


348 


349 


LOCAL  ASSESSMENTS 


§94.- 


revenue  to  defray  the  expenses  of  the  general  government.-  No 
special  benefit  accrues  to  anyone  from  the  payment  of  taxes ;  the 
benefit  is  general,  and  accrues  to  all  citizens  and  property  alike, 
and  consists  in  the  general  benefits  which  the  government  guar- 
antees in  the  protection  and  enjoyment  of  life  and  property,  and 
the  promotion  of  those  institutions  which  have  for  their  object 
the  welfare  of  all.  Local  assessments  are  not  levied  in  order  to 
raise  general  revenue  for  the  purposes  of  government,  but  are 
charges  assessed  against  the  property  of  some  particular  locality 
because  that  property  derives  some  special  benefit  from  the  ex- 
penditure of  the  money  collected  by  the  assessment  in  addition  to 
the  general  benefit  accruing  to  all  property  or  citizens  of  the  com- 
monwealth.'"^     The  distinction  is  very  clearly  pointed  out  in  those 


2  Loan  Association  v.  Topeka,  20 
Wall.  (U.  S.)  655,  664,  22  L.  ed. 
455;  Illinois  Central  R.  Co.  v.  De- 
catur, 147  U.  S.  190,  13  Sup.  Ct. 
293,  Zl  L.  ed.  132:  Rich  v.  Chicago, 
152  111.  18,  38  X.  E.  255;  Elliott 
Roads  and  Streets  (3d  ed.),  §  662, 
et  seq. 

■"Willard  v.  Presbury,  14  Wall. 
(U.  S.)  676,  20  L.  ed.  719;  Illinois 
&c.  Co.  v.  Decatur,  147  U.  S.  190, 
13  Sup.  Ct.  293,  Zl  L.  ed.  132;  Mc- 
Gehee  v.  Mathis,  21  Ark.  40;  Em- 
ery V.  San  Francisco  &c.  Co.,  28 
Cal.  345;  Denver  v.  Knowles,  17 
Colo.  204,  30  Pac.  1041,  17  L.  R.  A. 
135:  Speer  v.  Athens,  85  Ga.  49, 
11  S.  E.  802,  9  L.  R.  A.  402;  Rich 
v.  Chicago,  152  III.  18,  38  N.  E. 
255;  Chicago  &c.  Co.  v.  Joliet,  154 
111.  522,  39  N.  E.  1077;  New  Al- 
bany V.  McCulloch,  127  Ind  500, 
26  N.  E.  1074;  Palmer  v.  Stumph, 
29  Ind.  329;  Hines  v.  Leavenworth, 
3  Kans.  186;  Lexington  v.  McQuil- 
lan, 9  Dana  (Ky.)  514;  Charnock 
v.  Levee  Co.,  38  La.  Ann.  323; 
Moale  v.  Baltimore,  5  Md.  314,  6"1 
Am.  Dec.  276;  Hoyt  v.  East  Sagi- 


naw, 19  Mich.  39,  2  Am.  Rep.  Id 
Sewall  V.  St.  Paul,  20  Minn.  511 
Palmyra  v.  Morton,  25  Mo.  593 
Sheehan  v.  Good  Samaritan  &c., 
50  ^lo.  155.  11  Am.  Rep.  412;  Far- 
rar  v.  St.  Louis,  80  Mo.  379;  Hur- 
ford  v.  Omaha,  4  Nebr.  336;  State 
V.  Dean,  23  N.  J.  L.  335;  People  v. 
^layor,  4  N.  Y.  419,  55  Am.  Dec. 
266,  and  note;  Cain  v.  Commis- 
sioners, 86  N.  Car.  8;  King  v.  Port- 
land, 2  Ore.  146;  Commonwealth  v. 
Woods,  44  Pa.  St.  113;  Hammett 
V.  Philadelphia,  65  Pa.  146,  3  Am. 
Rep.  615;  Cleveland  v.  Tripp,  13  R. 
I.  50;  Winona  &c.  Co.  v.  Water- 
town,  1  S.  Dak.  46,  44  N.  W.  1072: 
Allen  V.  Galveston,  51  Tex.  302; 
Richmond  &c.  Co.  v.  Lynchburg, 
81  Va.  473;  Norfolk  City  v.  Ellis, 
26  Grat.  (Va.)  224;  Hale  v.  Keno- 
sha, 29  Wis.  599;  Cooley  Taxation 
(3d  ed.),  1153,  1154.  "Taxes  are 
impositions  for  purposes  of  gen- 
eral revenue;  assessments  are  spe- 
cial and  local  impositions  upon 
property  in  the  immediate  vicinity 
for  an  improvement  for  the  public 
welfare,    which    are    necessary    to 


.^  945 


RAILROADS 


350 


cases  which  liohl  that  a  statute  exemptini;  property  from  taxation 
does  not  exempt  it  from   loeal  assessments,*  and  also  in   those 


pay  for  tlic  improvonient,  and  laid 
with  reference  to  the  special  bene- 
fit which  such  property  derives 
from  such  expenditure."  Reeves  v. 
Treasurer,  8  Ohio  St.  333.  The  dis- 
tinction between  tax  and  a  local  as- 
sessment is  very  clearly  pointed  out 
bj^  Chief  Justice  George  in  the  case 
of  Macon  v.  Patty,  57  IVIiss.  378, 
386,  34  Am.  Rep.  451,  as  follows: 
"A  local  assessment  can  only  be 
levied  on  land;  it  can  not,  as  a  tax 
can,  be  made  a  personal  liability 
of  the  tax-payer;  it  is  an  assess- 
ment on  the  thing  supposed  to  be 
benefited.  A  tax  is  levied  on  the 
whole  state  or  a  known  political 
subdivision,  as  a  county  or  a  town. 
A  local  assessment  is  levied  on 
property  situated  in  a  district  cre- 
."ted  for  the  express  purpose  of 
the  levy,  and  possessing  no  other 
function,  or  even  existence,  than  to 
be  the  thing  on  which  the  levy  is 
made.  A  tax  is  a  continuing  bur- 
den, and  must  be  collected  at  stat- 
ed short  intervals  for  all  times,  and 
without  it  government  can  not  ex- 
ist. A  local  assessment  is  excep- 
tional, both  as  to  time  and  locality 
— it  is  brought  into  being  for  a 
particular  occasion,  and  to  accom- 
plish a  particular  purpose,  and  dies 
with  the  passing  of  the  occasion 
and  the  accomplishment  of  the 
purpose.  A  tax  is  levied,  collected 
and  administered  by  a  public 
agency,  elected  by  and  responsible 
to  the  community  upon  which  it  is 
imposed;  a  local  assessment  is 
made  by  an  authority  ab  extra,  yet 
it  is  like  a  tax  in  that  it  is  imposed 


under  an  aiUliority  derived  from 
the  legislature,  and  is  an  enforced 
contribution  to  the  public  welfare. 
■.<u(]  its  payment  may  be  enforced 
by  the  summary  method  allowed 
for  the  collection  of  taxes.  It  is 
like  a  tax  in  that  it  must  be  levied 
for  a  public  purpose,  and  must  be 
apportioned  by  some  reasonable 
rule  among  those  upon  whose  prop- 
erty it  is  levied.  It  is  unlike  a  tax 
in  that  the  proceeds  of  the  assess- 
ment must  be  expended  in  an  im- 
provement from  which  a  benefit 
clearly  exceptive  and  plainly  per- 
ceived must  inure  to  the  property 
upon   w^hich   it  is   imposed." 

*  Bridgeport  v.  New  York  &c.  R. 
Co.,  36  Conn.  255,  4  Am.  Rep.  63: 
Chicago  &c.  Co.  v.  People,  120  111. 
in4.  11  N.  K.  418:  Illinois  &c.  Co. 
V.  Decatur.  126  111.  92,  18  N.  E. 
315,  1  L.  R.  A.  613,  and  note,  af- 
firmed in  147  U.  S.  190,  13  Sup.  Ct. 
293,  37  L.  ed.  132;  First  Presby- 
terian Church  V.  Fort  Wayne,  36 
Ind.  338,  10  Am.  Rep.  35;  Edwards 
&c.  Co.  V.  Jasper  County,  117  Iowa 
365,  90  N.  W.  1006,  94  Am.  St.  301; 
Mt.  Sterling  v.  Montgomery  Co., 
152  Ky.  637,  153  S.  W.  952;  Mul- 
lins  V.  Mt.  St.  Mary's  &c.  Assn., 
239  Mo.  681,  144  S.  W.  109;  Mayor 
&c.  of  Baltimore  v.  Greenmount 
Cemetery,  7  Md.  517;  Buffalo  Cem- 
etery V.  BufYalo,  46  N.  Y.  506; 
Roosevelt  Hospital  v.  Mayor,  84 
N.  Y.  108;  Olive  Cemetery  v.  Phil- 
adelphia, 93  Pa.  St.  129,  39  Am. 
Rep.  732,  and  note.  See  also  State 
V.  Binninger,  42  N.  J.  528,  1  Am. 
&  Eng.  R.  Cas.  410;   Ford  v.   Delta 


851 


LOCAL  ASSESSMENTS 


§946 


which  hold  that  the  levy  of  a  local  assessment  docs  not  violate 
constitutional  i)rovisions  requiring"  uniformity  of  taxation.'^ 

§946  (782).  Local  assessments — Power  to  levy. — The  au- 
thority or  power  to  levy  local  assessments  has  for  its  foundation 
the  general  taxing  power  of  the  commonwealth.''  The  power  to 
levy  general  taxes  and  local  assessments  comes  from  the  same 
source.  The  power  is  usually  conferred  through  legislative 
enactments  upon  local  governmental  instrumentalities,  such  as 
counties,  cities,  towns,  and  the  like.     For  a  time  there  was  much 


&c.  Land  Co.,  164  U.  S.  662,  17 
Sup.  Ct.  230,  41  L.  ed.  590;  Seattle 
V.  Mt.  Pleasant  &c.  Co.,  59  Wash. 
41.  109  Pac.  1052,  Ann.  Cas.  1912A, 
1047;  Arnold  v.  Knoxville,  115  Tenn. 
195,  90  S.  W.  469,  3  L.  R.  A.  (N.  S.) 
837,  and  note.  But  compare  Nova 
Scotia  Car  Works  v.  Halifax,  47 
Can.  Sup.  Ct.  406,  Ann.  Cas.  1913D, 
1107;  Illinois  Cent.  Co.  v.  Decatur, 
154  III.  173,  38  N.  E.  626;  Winona 
&c.  Co.  v.  Watertown,  1  S.  Dak. 
46,  44  N.  W.  1072;  Whittaker  v. 
Deadwood,  23  S.  Dak.  538,  122  N. 
W.  590,  139  Am.  St.  1076. 

5  Mayor  of  Birmingham  v.  Klein, 
89  Ala.  461,  8  L.  R.  A.  369;  Denver 
v.  Knowles,  17  Colo.  204,  30  Pac. 
104,  17  L.  R.  A.  135;  Zanesville  v. 
Richards,  5  Ohio  St.  589;  Chamber- 
lain V.  Cleveland,  34  Ohio  St.  551; 
Reeves  v.  Treasurer,  8  Ohio  St. 
333;  Arnold  v.  Knoxville,  115  Tenn. 
195,  90  S.  W.  469,  3  L.  R.  A.  (N. 
S.)  837  (citing  Elliott  on  Roads  & 
Sts.  (3d  ed.)  §  663,  and  elaborately 
reviewing  authorities. 

6  Monticello  v.  Banks,  48  Ark.  251 ; 
Walsh  V.  Mathews,  29  Cal.  123;  Ad- 
ams County  V.  Quincy,  130  III.  566, 
22  N.  E.  624,  6  L.  R.  A.  155;  Hines 
V.  Leavenworth,  3  Kans.  186;  New 
Orleans    Praying    for    Opening    of 


Streets,  20  La.  Ann.  497;  Baltimore 
V.  Grecnmnunt  Cemeter}',  7  ]Md. 
517;  Motz  V.  Detroit,  18  Mich.  494; 
McComb  V.  Bell,  2  Minn.  256;  Glas- 
gow V.  Rowse,  43  Mo.  479;  Shee- 
han  V.  Good  Samaritan  &c..  50  Mo. 
155.  11  Am.  Rep.  412;  St.  Louis  v. 
Allen,  53  Mo.  44:  Keith  v.  Bing- 
ham, 100  ^lo.  300,  13  S.  W.  683; 
State  V.  Fuller.  34  N.  J.  L.  227; 
State  V.  Newark,  35  N.  J.  L.  168; 
People  V.  Mayor,  4  N.  Y.  419,  55 
Am.  Dec.  266,  and  note;  Van  Ant- 
werp, In  re,  56  N.  Y.  261;  Reeves 
V.  Treasurer,  8  Ohio  St.  333;  Pray 
V.  Northern  Liberties,  31  Pa.  St. 
69;  Winona  &c.   Co.  v.  Watertown, 

1  S.  Dak.  46,  44  N.  W.  1072;  Aus- 
tin V.  Austin  &c.   Co.,  69  Tex.  180, 

2  S.  W.  852;  Allen  v.  Drew,  44  Vt. 
174;  Weeks  v.  Milwaukee,  10  Wis. 
242.  In  the  case  of  Vacation  of  Cen- 
tre Street,  In  re.  115  Pa.  St.  247,  8 
Atl.  56,  it  is  said:  "Municipal  as- 
sessments for  grading,  paving, 
opening,  widening  or  vacating 
streets,  and  other  purposes  for 
which,  within  proper  limits,  they 
may  be  authorized,  are  referable 
solel}^  to  the  taxing  power.  Indeed, 
there  is  nothing  else  upon  which 
they  can   be   sustained." 


^f)i6 


RAILROADS 


352 


doubt  as  to  the  validity  of  statutes  conferring-  upon  municipalities 
the  power  to  levy  assessments  to  pay  for  local  inii)rovements.  but 
the  validity  of  such  statutes  is  now  so  firmly  established  by  judi- 
cial decisions  as  t(^  be  no  longer  considered  an  open  question/ 
The  right  to  levy  a  local  assessment  proceeds,  and  is  justified, 
upon  the  theory  that  the  property  against  which  the  assessment 
is  placed  is  enhanced  in  value  by  the  construction  of  the  improve- 
ment to  an  amount  equal  to  the  assessment  exacted.^  It  has 
Ijeen  held  that  if  the  property  against  which  an  assessment  has 
been  levied  has  not  been  benefited  by  the  improvement,  the  col- 
lection of  the  assessment  may  be  enjoined,''  but  this  doctrine  is  to 
be  taken  with  careful  ciualification,  for  it  is  only  in  very  clear 


"  Wihnington  v.  Yopp,  71  N. 
Car.  76:  Ralci-Ii  v.  Peace,  110  N. 
Car.  32,  14  S.  E.  521,  17  L.  R.  A. 
330;  Stroiul  v.  Philadelphia.  61  Pa. 
St.  255;  Elliott  Roads  and  Streets 
(3d  ed.),  §  662.  "The  subject  has 
been  thoroughly  discussed  and 
every  principle  bearing  upon  it 
severelj'  analy/'.cd  in  almost  ever}- 
state  of  the  Union  whore  the  power 
has  been  exercised;  and  it  is  now 
as  firmly  established  as  any  other 
doctrine  of  American  law."  Pal- 
myra V.  Morton,  25  Mo.  593. 

s  Illinois  Central  R.  Co.  v.  De- 
catur, 147  U.  S.  190.  13  Sup.  Ct. 
293,  Zl  L.  cd.  132;  Davies  v.  Los 
Angeles,  86  Cal.  Zl ,  24  Pac.  771; 
Fort  Wayne  v.  Shoaff,  106  Ind.  66; 
Mock  v.  Muncie,  9  Ind.  App.  536, 
7>1  N.  E.  281,  32  N.  E.  718;  Preston 
V.  Rudd,  84  Ky.  150;  Municipality 
No.  2  V.  Dunn,  10  La.  Ann.  57; 
New  Orleans  Praying  for  Opening 
of  Streets,  20  La.  Ann.  497:  Au- 
burn V.  Paul,  84  Maine  212,  24  At). 
817;  Wright  v.  Boston,  9  Cush. 
(Mass.)  233;  State  v.  Judges,  51 
Minn.  539,  53  N.  W.  800;  Lock- 
wood    V.     St.    Louis,    24    :\Io.    20; 


Patcrson  v.  Society,  24  N.  J.  L. 
.■i85:  Litchfield  v.  Vernon,  41  N.  Y. 
123:  Oregon  &c.  Co.  v.  Portland, 
25  Ore.  229,  35  Pac.  452,  22  L.  R. 
A.  713;  Philadelphia  v.  Tryon.  35 
Pa.  St.  401;  McGonigle  v.  Alle- 
gheny City,  44  Pa.  St.  118;  Mt. 
Pleasant  v.  Baltimore  &c.  R.  Co., 
138  Pa.  St.  365,  20  Atl.  1052,  11 
L.  R.  A.  520;  Allen  v.  Drew,  44 
\'t.  174.  "The  principle  upon  which 
rests  that  numerous  class  of  stat- 
utes which  charge  lots  of  ground 
with  the  expense  of  grading  and 
paving  the  streets  in  front  of  them 
is,  that  the  value  of  the  lots  is 
enhanced  by  the  public  expendi- 
ture." Schenley  v.  Commonwealth, 
Z()  Pa.  St.  29,  78  Am,  Dec.  359,  and 
note. 

^  Oregon  &c.  Co.  v.  Portland,  25 
Ore.  229,  35  Pac.  452,  22  L.  R.  A. 
713.  See  New  York  &c.  R.  Co.  v. 
New  Haven,  42  Conn.  279,  19  Am. 
Rep.  534;  Bloomington  v.  Chicago 
&c.  R.  Co.,  134  111.  451.  26  N.  E.. 
366;  Mount  Pleasant  v.  Baltimore 
&c.  Co.,  138  Pa.  St.  365,  20  Atl. 
1052,  11   L.  R.  A.  520. 


353 


LOCAL  ASSESSilKNTS 


§946 


cases  that  the  courts  can  interfere.^"  Since  the  power  to  levy  a 
local  assessment  depends  upon  a  statutory  enactment,  it  can 
have  no  existence  unless  there  be  a  valid  statute  conferring  it 
upon  the  municipality  which  claims  the  right  to  exercise  it.^^ 
The  general  authority  to  levy  taxes  for  municipal  purposes  is  not 
broad  enough  to  confer  the  right  to  levy  assessments  for  local 
improvements.^-  A  statute  conferring  such  a  power  upon  a 
municipality  must  be  strictly  construed  in  favor  of  the  person 
asfainst  whom  the  assessment  is  levied. ^^ 


^0  Where  the  question  of  the 
amount  of  the  benefit  is  committed 
to  the  judgment  of  the  municipal 
officers,  the  courts  can  not  control 
the  assessment  in  that  respect. 
Motz  V.  Detroit,  18  }ilich.  494;  Ft. 
Wayne  v.  Cody,  43  Ind.  197;  Le 
Roy  V.  Mayor,  20  Johns.  (N.  Y.) 
430,  11  Am.  Dec.  289;  Mayor  &c. 
Ex  parte,  23  Wend.  (N.  Y.)  277; 
Mooers  v.  Smedley,  6  Johns.  Ch. 
(N.  Y.)  28;  Brooklyn  v.  Meserole, 
26  Wend.  (N.  Y.)  132;  Lyon  v. 
Brooklyn,  28  Barb.  (N.  Y.)  609; 
Commonwealth  v.  Woods,  44  Pa. 
St.  113.  See  also  French  v.  Barber 
Asphalt  Pav.  Co.,  181  U.  S.  324, 
21  Sup.  Ct.  625,  45  L.  ed.  879; 
Schaefer  v.  Werling,  188  U.  S.  516, 
23  Sup.  Ct.  449,  47  L.  ed.  570;  Seat- 
tle V.  Kelleher,  195  U.  S.  351,  25 
Sup.  Ct.  44,  49  L.'ed.  232;  Louis- 
ville &c.  R.  Co.  V.  Barber  Asphalt 
Pav.  Co.,  197  U.  S.  430,  25  Sup.  Ct. 
466.  49  L.  ed.  819;  Chadwick  v. 
Kelley.  187  U.  S.  540.  23  Sup.  Ct. 
175.  47  L.  ed.  293.  See  generally 
upon  this  subject,  note  to  Chicago 
&c.  R.  Co.  V.  Janesville,  137  Wis. 
7,  as  reported  in  28  L.  R.  A.  (N.  S.) 
1124. 

11  Marion  Trust  Co.  v.  Indian- 
apolis, n  Ind.  App.  672,  75  N.  E. 
834,  836;  Niklaus  v.  Conkling,  118 
Ind.  289,  20  N.  E.  797;  Second  Ave. 


Church.  Matter  of,  66  N.  Y.  395; 
Griswold  V.  Pelton,  34  Ohio  St. 
482. 

i^Lott  V.  Ross,  38  Ala.  156; 
Hare  v.  Kennerly.  83  Ala.  608,  3 
So.  683;  Mayor  &c.  of  Savannah  v. 
Hartridge,  8  Ga.  23;  Chicago  v. 
Wright,  32  111.  192;  Drake  v.  Phil- 
lips. 40  111.  388;  Kyle  v.  Malin,  8 
Ind.  34;  Fairfield  v.  Ratclifif.  20 
Iowa  396;  Leavenworth  v.  Norton, 
1  Kans.  432;  Annapolis  v.  Har- 
wood,  32  Md.  471,  3  Am.  Rep.  151; 
I\Iinn.  &c.  Co.  v.  Palmer,  20  Minn. 
468;  Board  of  Winston  v.  Taylor, 
99  N.  Car.  210,  6  S.  E.  114;  Cin- 
cinnati V.  Bryson,  15  Ohio  625,  45 
Am.  Dec.  593;  Mays  v.  Cincinnati, 
1  Ohio  St.  268;  Richmond  v.  Dan- 
iel, 14  Grat.  (Va.)  385;  Green  v. 
Ward,  82  Va.  324;  Comrs.  of  Ashe- 
ville  V.  ]\Ieans,  7  Ired.   (Law)   406. 

13  Walker  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  352,  12  Cent. 
R.  408;  Augusta  v.  Murphey.  79 
Ga.  101.  3  S.  E.  326;  Niklaus  v. 
Conkling,  118  Ind.  289,  20  N.  E. 
797;  Second  Avenue  Church,  Mat- 
ter of,  66  N.  Y.  395;  Reed  v.  To- 
ledo, 18  Ohio  161;  Griswold  v. 
Pelton.  34  Ohio  St.  482;  Allentown 
V.  Henry.  12,  Pa.  St.  404;  Oshkosh 
&c.  R.  Co.  V.  Winnebago  County, 
89  Wis.  435,  61  N.  W.  1107. 


§  947  RAILROADS  354 

§947  (783).  Statute  must  be  complied  with. — Where  the 
statute  prescribes  the  mode  in  which  the  improvements  shall  ])e 
made  and  the  assessment  levied,  that  mode  must  be  strictly  pur- 
sued by  the  municipal  authorities  in  making  the  levy.^*  "The 
mode,"  it  is  said,  "constitutes  the  measure  of  power. "^'^  But  the 
rule  of  construction  is  not  so  strict  that  a  literal  compliance  with 
the  statute  in  immaterial  matters  is  necessary  in  every  case.  If 
there  is  a  substantial  compliance  with  the  mode  prescrilied  the 
assessment  will  usually  be  held  valid. ^''  So  where  the  statute 
does  not  prescribe  in  detail  the  manner  or  mode  in  which  an  im- 
provement shall  be  made  and  the  assessment  to  pay  for  the  same 
levied,  but  does  in  general  terms  grant  the  principal  powder  to 
levy  the  assessment,  the  courts  have  held  that  all  subordinate  and 
incidental  powers  necessary  to  a  valid  exercise  of  the  rights  con- 
ferred by  the  statute  pass  with  the  grant  of  the  principal  power. ^" 

!•*  Taylor  v.  Downer,  31  Cal.480:  ritt   v.    Portchester,    71    N.    Y.   309, 

Smith  V.   Davis,  30   Cal.   536;    Chi-  27  Am.  Rep.  47:  Starr  v.   Burling- 

cago  V.  Wright,  32  111.  192;  Butler  ton.   45    Iowa    87:    State    v.   Jersey 

V.  Nevin,  88  111.  575;  Hager  V.  Bur-  City,    38    N.    J.    L.    85;     Cambria 

lington,  42   Iowa  661;    Newman   v.  Street,  75  Pa.  St.  357;  Lux  &c.  Co. 

City,  32  Kans.  456,  4  Pac.  815;  Le.x-  v.   Donaldson,   162   Ind.  481,  68   N. 

ington    v.    Headley,    5    Bush    (Ky.)  E.    1014;   Tulare   Dist.   v.    Shepard, 

508;     Fayssoux    v.     Succession    of  185  U.  S.  1,  22  Sup.  Ct.  531,  46  L. 

Baroness     De     Chaurand,     36     La.  cd.  112,;   Elliott  Roads  &  Sts.   (3rd 

Ann.  547;  Bouldin  v.  Baltimore,  15  ed.)   §  665. 

Md.     18;     White     v.     Saginaw,     dl  ^^  Zottman    v.    San   Francisco,  20 

^lich.  Z^,  34  N.  W.  255;  Sewall  v.  Cal.  96,  81  Km.  Dec.  96.  and  note. 

St.    Paul,   20   Minn.    511;    Leach    v.  See    also    Murphy   v.    Louisville,   9 

Cargill,    60   Mo.   316;    St.    Louis   v.  Bush    (Ky.)    189:    Nicolson    Paving 

Ranken^  96  Mo.  497,  9  S.  W.  910;  Co.  v.  Painter,  35  Cal.  699. 
Hurford    v.    Omaha,   4    Nebr.    336;  i"  Springfield  v.  Sale,  127  111.359, 

State  v.  Bayonne,  44  N.  J.  L.  114:  20  N.  E.  86;  Jenkins  v.  Stetler,  118 

Merritt    v.    Portchester,    71    N.    Y.  Ind.  275,  20  N.   E.   788;   Lynam  v. 

309,   27    Am.    Rep.    47;    Brophy    v.  Anderson,    9    Nebr,    367,   2    N.    W. 

Landman,   28   Ohio   St.   542:    Cam-  532:  State  v.  South   Orange,  46  N. 

bria   Street,   In   re,  75   Pa.   St.  357;  J.  L.  317:  Stcbbins  v.  Kay,  4  N.  Y. 

Allen    V.    Galveston,    51    Tex.    302;  S.  566;  Parish  v.  Golden,  35  N.  Y. 

Jilassing  v.  Ames,  Zl  Wis.  645.   The  462. 

provisions    of    the    statute    confer-  ^'  Cook    Co.    v.    McCrea,    93    111. 

ring    the    power    to    levy    assess-  236;   Smith  v.  Madison,  7  Ind.  86; 

ments  should  be  construed  as  man-  AicNamara  v.   Estes,  22  Iowa  246; 

datory  rather  than  directory.     Mer-  .Spaulding     v.      Lowell,      23      Pick. 


'.l^^a  LOCAL  ASSESSMENTS  §  948 

As  the  power  to  improve  streets  and  the  like  is  a  continuing  one, 
it  has  been  held  that  the  levy  of  one  local  assessment  does  not 
exhaust  the  power  of  the  municipality,  and  second  and  subse- 
quent assessments  may  be  levied  against  the  same  property  to 
pay  for  repairs,  repaving,  additional  improvements,  and  the  like.^^ 
It  is  obvious  that  if  this  power  were  not  a  continuing  one  it 
would  be  impossible  to  repair,  replace  or  extend  an  improvement 
when  the  same  becomes  out  of  repair,  or  inadequate  for  the 
purposes  lor  which  it  was  made. 

§948  (784).  Property  subject  to  local  assessment — General 
rule. — The  general  rule  is  that  all  lands  lying  within  the  designat- 
ed limits  of  the  district  or  locality  for  which  a  local  improvement 
is  made,  by  whomsoever  held  or  owned,  are  subject  and  liable  to 
an  assessment  to  aid  in  paying  the  cost  of  constructing  such  im- 
provement,^'^ and  this  rule  is  enforced,  even  though  there  be  a 
statute  exempting  particular  property  from  taxation.  Thus  it 
has  been  held  that  statutes  exempting  cemeteries,  churches, 
charitable  institutions  and  the  like  from  taxation,  does  not  relieve 
them    from    assessments   to   pay   for   local    improvements    from 

(Mass.)  71;  Bigelow  v.  Perth  Am-  way  Church  v.  IMcAtee,  8  Bush 
boy,  26  N.  J.  L.  297;  State  v.  Jer-  (Ky.)  508,  8  Am.  Rep.  480.  In 
sey  City,  30  N.  J.  L.  148;  Smith  v.  Louisville  Transfer  Co.  v.  Obst 
Newbern,  70  N.  Car.  14,  16  Am.  (Ky.),  February,  1875,  the  court 
Rep.  766;  Schenley  v.  Common-  said:  "Real  property  held  by  rail- 
wealth,  36  Pa.  St.  29,  78  Am.  Dec.  road  companies  within  the  corpo- 
359,  and  note.                                        .  rate  limits  of  the  city  of  Louisville 

IS  Goszler  v.  Georgetown,  6  is  not  exempt  from  street  taxation. 
Wheat.  (U.  S.)  593,  5  L.  ed.  339;  The  terms  of  the  grant  of  the 
Chicago  &c.  Co.  v.  Quincy,  136  III.  power  to  tax  for  such  purposes 
563,  27  N.  E.  192.  29  Am.  St.  334;  includes  all  real  estate,  and  that 
Board  v.  Fullen,  111  Ind.  410;  Wil-  held  by  railroad  companies,  like 
kins  V.  Detroit,  46  INIich.  120,  8  that  held  by  churches,  colleges, 
N.  W.  701;  Sheley  v.  Detroit,  45  hospitals,  and  other  institutions  of 
]\Iich.  431,  8  N.  W.  52;  Farrar  v.  like  character,  must  bear  its  pro- 
St.  Louis,  80  INIo.  379;  Estes  v.  portion  of  the  local  burden.  There 
Owen,  90  Mo.  113;  State  v.  Hotal-  is  no  constitutional  restriction  to 
ing,  44  N.  J.  L.  347;  Burmeister,  impose  local  taxation  upon  rail- 
In  re.  76  N.  Y.  174.  road    companies.      It    is    merely    a 

^^  Elliott  Roads  and  Streets    (3d  question  of  local  polic}-." 
ed.    §    669,    et    seq.).      See    Broad- 


§  949  HAILKOADS  356 

which  they  derive  a  special  benefit.^"  Statutes  under  which  an 
exemption  from  local  assessment  is  asserted  must  l^e  strictly 
construed  against  the  person  claiming  the  exemption,  and  liber- 
ally in  favor  of  the  assessment.-^  The  enforcement  of  such  as- 
sessment is  placed  on  the  ground  that  the  statutes  are  intended 
only  to  relieve  from  the  burdens  of  general  taxation,  and  that 
.local  assessments  are  a  species  of  special  taxation  not  included  in 
the  general  term  taxation.  But  where  the  statutes  provide  that 
the  property  shall  be  exempt  from  taxation  and  assessments  of 
every  kind,  it  has  l)een  held  that  local  assessments  can  not  be 
levied  against  such  property. ^- 

§949   (785).     Property    of    railroad    companies. — As    to    the 

liability  of  lands  owned  by  railroad  companies  as  part  of  their 
right  of  way,  or  as  necessary  to  the  operation  of  their  roads,  to 
local  assessments,  there  is  some  conflict  among  the  authorities.^' 
Some  of  the  authorities  make  a  distinction  on  the  ground  of  the 
nature  of  the  uses  to  which  the  lands  are  put.  For  the  purposes 
of  our  discussion  we  will  divide  the  lands  owned  by  railroads  into 
two  classes,  viz.,  that  occupied  by  and  used  as  a  right  of  way,  and 
that  used  for  other  purposes,  such  as  shops,  warehouses,  depots, 

20  Tllinnis    Central    Co.    v.    Deca-  iite      exempting     public     highways 

tur.   147  U.  S.   190,   13  Sup.   Ct.  293.  frrmi  local  assessments.    Nevada  v. 

Zl  L.   ed.   132:   Chicago   &c.    Co.  v.  Hddy,   123   lAIo.   546,  27  .S.  W.   471. 

People,   120  111.  104,   11    N.   E.  418:  Authorities,  ante  §  945. 

Worcester    Agricultural    Societj'   v.  -^  Roosevelt    Hospital    v.    Mayor. 

Worcester,  116  Mass.  189;  Sheehan  84  N.  Y.  108. 

v.  Good  Samaritan.  50  Mo.  155,  11  --  First  Division  St.  Paul  &c.  Co. 

Am.  Rep.  412:  Paterson  v.  Society.  \.    St.   Paul,   21    Minn.   526:   Rright- 

24   N.  J.    L.   385;   State   v.   Newark.  man     v.     Kirner.    22    Wis.    54.       A 

27  N.  J.   L.   185;   Harvey  v.   South  statute   providing  that   "no   tax  or 

Chester,  99  Pa.  St.  565:   Sewickley  imjiost"    shall    be    levied    does    not 

&c.    Church's    Appeal,    165    Pa.    St.  txemiii     from     local     assessments. 

475,   30   Atl.    1007;    P.cals   v.    Provi-  State    v.    Jersey    City,    42    N.   J.    L. 

deuce   Rubber  Co.,   11    R.   T.  381,  23  07.     1    Am.    &    Eng.    R.    Cas.    406: 

Am.    Rep.  472;   Allen   v.   Galveston,  State  v.   Elizabeth,  Zl  N.  J.   L.  330. 

51    Tex.    302;    Chicago    &c.    R.    Co.  2.!  i-|ic,-e    ^-^n    be    no    doubt    that 

v.    Milwaukee,   89   Wis.    506.   62    N.  i^roocrty    held   by    a    railroad    com- 

W.   417,  28   L.   R.   A.  249.     And   it  ;\-ir.y    for    purposes    not    connected 

has  been  held  that  a  railway  is  not  with    the   operation   of   the    road   is 

a   "public    highway"   within   a    stat-  subject   to   assessment   in   a   proper 


a57 


LOCAL  ASSESSMENTS 


§949 


depot  grounds,  and  the  like.  The  liability  of  the  right  of  way  to 
local  assessments  will  be  considered  in  the  next  and  succeeding 
sections.  While  there  may  be  some  conflict  in  the  decisions,  the 
overwhelming  weight  of  authority  is  that  depots,  depot  grounds, 
and  other  lands  owned  by  railway  companies  and  not  occupied  as 
a  right  of  way,  are  subject  to  local  assessments  the  same  as  the 
lands  owned  bv  an  individual.-* 


case.  Where  the  property  is  not 
used  in  operatinj^  the  road  the 
company  holds  it  substantially  as 
property  is  held  by  individuals  or 
strictlj'^   private   corporations. 

2*  Bradley  v.  New  York  &c.  Co., 
21  Conn.  294;  New  York  &c.  R. 
Co.  V.  New  Britain.  49  Conn.  40; 
Chicago  &c.  Co.  v.  Chicago,  139 
111.  573,  28  N.  E.  1108:  Chicago  &c. 
Co.  v.  People.  120  111.  104.  11  N.  E. 
418;  Burlington  &c.  Co.  v.  Spear- 
man. 12  Iowa  112.  Ludlow  v.  Cin- 
cinnati Southern.  78  Ky.  357,  7  Am. 
&  Eng.  R.  Cas.  231;  Nevada  v. 
Eddy,  123  Mo.  546,  27  S.  W.  471; 
Erie  R.  Co.  v.  Paterson.  72  N.  J. 
83,  59  Atl.  1031:  New  Jersey  &c. 
Co.  v.  :Mayor,  42  N.  J.  L.  97:  Mor- 
ris &c.  R.  Co.  V.  Jersey  City,  65 
N.  J.  L.  683,  48  Atl.  1117:  Alexan- 
der Ave.  In  re,  17  N.  Y.  S.  933; 
Mt.  Pleasant  v.  Baltimore  &c.  Co., 
138  Pa.  365.  20  Atl.  1052,  11  L.  R. 
A.  520;  Chicago  &c.  R.  Co.  v.  Mil- 
waukee, 89  Wis.  506.  28  L.  R.  A. 
249;  Reopening  of  Berks  St.,  12 
W.  N.  C.  10.  See  also  Illinois 
Cent.  R.  Co.  v.  Decatur,  147  U.  S. 
190.  13  Sup.  Ct.  293,  Zl  L.  ed.  132; 
Illinois  Cent.  R.  Co.  v.  People,  170 
111.  224,  48  N.  E.  215:  Pittsburgh 
&c.  R.  Co.  V.  Hays,  17  Ind.  App. 
261,  44  N.  E.  375,  45  N.  E.  675.  46 
N.  E.  597;  Atchison  &c.  R.  Co.  v. 
Peterson,    58    Kans.    818,    51     Pac. 


290:  Drainage  Dist.  v.  Chicago  &c. 
R.  Co.,  96  Nebr.  1,  146  N.  W.  1055: 
Philadelphia  v.  Philadelphia  &c.  R. 
Co..  177  Pa.  St.  292,  35  Atl.  610. 
34  L.  R.  -V.  564.  In  the  case  of 
Chicago  &c.  Co.  V.  People,  120  111. 
667,  12  N.  E.  207,  31  Am.  &  Eng. 
R.  Cas.  487,  the  court  said:  "What- 
ever maj'  be  said  in  regard  to  the 
mere  track  of  the  railway,  it  is 
impossible  to  see  why  depot 
grounds,  and  other  real  estate  used 
by  the  company,,  may  not  be  bene- 
fited by  improvements  of  the  char- 
acter here  contemplated,  at  least. 
as  much  as  may  be  the  public 
square  occupied  by  the  county 
court-house,  the  canal  lands,  and 
the  lot  occupied  by  the  church,  by 
like  improvements:  and  since  the 
question  of  jurisdiction  turns  upon 
the  right  of  inquiry,  and  not  upon 
the  correctness  of  decision,  it  is 
enough  that  railroad  propert}^  may 
sometimes,  under  certain  circum- 
stances, be  specially  benefited  by 
improvements  of  the  general  char- 
acter of  the  present."  ''We  are  of 
the  opinion  that,  while  the  road- 
bed or  right  of  way  of  a  railroad 
company  is  not  the  subject  of  the 
claim  for  paving,  it  does  not  fol- 
low that  a  passenger  depot  or 
freight  depot,  the  ground  belong- 
ing to  the  company  and  used  as  a 
lumber     yard,     or     other     purpose. 


S950 


UAILUOADS 


358 


§950  (786).     Right  of  way — Whether  subject  to  assessment. 

— As  said  in  the  preceding  section,  there  is  a  conflict  in  the  ad- 
judicated cases  as  to  whether  or  not  the  right  of  way  of  a  rail- 
road company  is  subject  to  local  assessments.  The  question  has 
been  discussed  in  a  great  number  of  instances,  and  different  con- 
clusions reached  in  apparently  similar  cases.  The  latest  author- 
ities on  the  subject,  however,  recognize  what  we  believe  to  be 
the  true  rule,  and  that  is,  that,  where  the  right  of  way  receives  a 
benefit  from  the  improvement  for  which  the  assessment  is  levied, 
and  there  is  no  statute  exempting  the  railroad  company  from 
local  assessments  in  clear  and  unequivocal  terms,  it  is  subject  to 
assessment.-' 


may  not  be  subject  to  such  a 
char.se."'  Mt.  Pleasant  v.  Baltimore 
&c.  Co.,  138  Pa.  365,  20  Atl.  1052. 
11  L.  R.  A.  520.  Contra,  New  York 
&c.  Co.  V.  New  Haven,  42  Conn. 
279,  19  Am.  Rep.  534.  The  deci- 
sion in  this  case,  it  seems,  was 
placed  on  the  ground  that  it  was 
not  shown  that  the  railway  com- 
pain^  reaped  any  advantage  from 
the  improvement. 

25  Illinois  Central  Co.  v.  Decatur, 
147  U.  S.  190,  13  Sup.  Ct.  293,  2>1  L. 
ed.  132,  54  Am.  &  Eng.  R.  Cas.  282; 
Chicago  V.  Baer,  41  111.  306;  Jack- 
sonville R.  Co.  v.  Jacksonville,  114 
111.  562,  2  N.  E.  478;  Chicago  &c.  Co. 
v.  People,  120  111.  104,  11  N.  E.  418; 
Illinois  Central  v.  Decatur,  126  111. 
92.  18  N.  E.  315,  1  L.  R.  A.  613,  and 
note:  Illinois  Central  v.  Mattoon, 
141  111.  32,  30  N.  E.  nZ;  Kuehner 
v.  Freeport,  143  111.  92,  32  N.  E. 
:>12.  17  L.  R.  A.  774;  Lightner  v. 
l^eoria,  150  111.  80,  Z1  N.  E.  69; 
Rich  V.  Chicago,  152  111.  18,  38 
N.  E.  255;  Illinois  Cent.  R.  Co.  v. 
People,  170  111.  224,  48  N.  E.  215; 
Little  V.  Chicago,  46  111.  App.  534; 
Peru    &c.    Co.    v.    Hanna,    68    Ind. 


562;  Pittsburgh  &c.  R.  Co.  v.  Ta- 
bcr,  168  Ind.  419.  11  N.  E.  741; 
Burlington  &c.  Co.  v.  Spearman, 
12  Iowa  112;  ^luscatine  v.  Chicago 
&c.  R.  Co.,  79  Iowa  645,  44  N.  W. 
909;  Atchison  &c.  R.  Co.  v.  Peter- 
son, 58  Kans.  818,  51  Pac.  290; 
Ludlow  V.  Cinciniiati  &c.  R.  Co., 
78  Ky.  357;  Heman  &c.  Co.  v. 
Wabash  R.  Co.,  206  Mo.  172,  104 
S.  W.  (^1,  12  L.  R.  A.  (N.  S.)  112. 
121  Am.  St.  649,  659  (quoting 
text);  Transportation  Co.  v.  Eliza- 
beth, 2>1  N.  J.  L.  330;  Railroad  Co. 
V.  Jersey  City,  42  N.  J.  L.  97;  State 
V.  Passaic,  54  N.  J.  L.  340,  23  Atl. 
945;  Northern  Pac.  R.  Co.  v.  Rich- 
land County,  28  N.  Dak.  172,  148 
N.  W.  545,  Ann.  Cas.  .1916E,  574 
(quoting  text);  Northern  &c.  Co. 
V.  Connelly,  10  Ohio  St.  159,  Id 
Am.  Dec.  82,  and  note.  See  Trus- 
tees V.  Chicago,  12  111.  403.  See 
also  Louisville  &c.  R.  Co.  v.  Bar- 
ber Asphalt  Pav.  Co..  197  U.  S. 
430,  25  Sup.  Ct.  466,  49  L.  ed.  821; 
note  in  12  L.  R.  A.  (N.  S.)  112,  40 
L.  R.  A.  (N.  S.)  935;  and  in  Ann. 
Cas.  1916E,  581.  In  Northern  &c. 
R.    Co.    V.    Connelly,    10    Ohio    St. 


3;"i9 


LOCAL  ASSESSMENTS 


950 


But  some  of  the  authorities  hold  that  the  making  of  a  local 
improvement,  such  as  a  street,  along  or  near  a  railway  right  of 
wa}',  cannot  possibly  be  a  benefit  to  the  company  ;  that  it  can  run 
its  trains  as  well  without  the  improvement  as  with  it,  and  there- 
fore that  no  assessment  can  be  levied.-^     One  court,  addressing 


159,  it  was  said:  "If  railroad  tracks 
are  taxable,  for  general  purposes, 
it  is  difficult  to  perceive  why  they 
should  not  be  subject  also  to  spe- 
cial taxes  or  assessments.  The 
company,  to  advance  its  own  in- 
terests, has  seen  fit  to  appropriate 
to  its  use  grounds  within  the  cor- 
porate limits  of  the  city  of  Toledo, 
and  OA'er  which  the  city  had  the 
power  of  making  assessments  to 
defray  the  expense  of  local  im- 
proA'ements,  and  why  should  not 
the  compau}'-  be  held  to  have  taken 
it  cum  oncre?  A  citizen  would 
scarcely-  claim  exemption,  because 
he  had  devoted  his  lot  to  uses 
which  the  improA^ement  could  not 
in  any  way  advance,  and  we  see 
no  good  reason  why  a  railroad 
compan}'  should  be  permitted  to 
do  so.  The  company  have  the  ex- 
clusive right  to  the  possession,  so 
long  as  it  is  used  for  the  road,  and 
if  the  road-bed  was  exempt  from 
taxation  for  general  purposes,  it 
would  by  no  means  follow  that  it 
was  not  liable  for  such  special  as- 
sessments." See  also  Citj^  of  Lin- 
coln V.  Chicago  &c.  R.  Co.,  262  111. 
11.  104  N.  E.  277;  City  of  Lincoln 
V.  Chicago  &c.  R.  Co.,  262  Til.  98. 
104  N.  E.  282.  In  Chicago  &c.  Co. 
V.  Joliet,  153  111.  649,  39  N.  E.  1079, 
it  was  said:  "Where  a  railwaj-  is 
contiguous  to  a  proposed  street 
improvement,  it  falls  within  the 
designation    of   propertj'    that    maj- 


be  specially  taxed  for  the  making 
of  the  local  improvement."  Con- 
tra Allegheny  &c.  Co.  v.  Western 
&c.  Co.,  138  Pa.  St.  375. 

-"  Bridgeport  v.  New  York  &c. 
Co..  36  Conn.  255.  4  Am.  Rep.  63: 
Detroit  &c.  R.  Co.  v.  Grand  Rap- 
ids, 106  ^lich.  13,  63  N.  W.  1007. 
28  L.  R.  A.  793:  Lake  Shore  &c. 
R.  Co.  V.  Grand  Rapids,  102  Mich. 
374,  60  N.  W.  767,  29  L.  R.  A.  195: 
Public  Parks.  Matter  of,  47  Hun 
(N.  Y.)  302;  Philadelphia  v.  Phila- 
delphia &c.  Co..  33  Pa.  St.  41: 
Chicago  &c.  R.  Co.  v.  Milwaukee. 
89  Wis.  506,  62  N.  W.  417.  28  L. 
R.  A.  249.  In  :Mt.  Pleasant  v.  Bal- 
timore &c.  Co.,  138  Pa.  St.  365,  20 
Atl.  1052,  the  court  said:  "It  re- 
quires no  argument  to  show  that 
the  paving  of  a  footwaj-  bj-  the 
side  of  a  railroad  track  can  confer 
no  possible  benefit  upon  the  prop- 
erty known  as  the  right  of  way. 
hence  the  whole  theory  which  jus- 
tifies such  charges  fails  in  this  in- 
stance. But  this  reason  does  not 
apply  to  a  railroad  station  where 
passengers  assemble  to  take  a 
train;  much  less  .does  it  applj'  to 
ground  used  as  a  freight  station 
or  lumber  yard."  It  has  also  been 
held  that  the  right  of  way  of  an 
interurban  railway  along  a  city 
street  is  not  real  estate  on  which 
the  company  can  be  assessed  un- 
der the  Indiana  law  for  a  drain  or 
sewer.     Havnes  Automobile  Co.  v. 


§  9ri0 


RAILROADS 


360 


Itself  t(»  this  sul)jcct,  has  said:  "Where  we  can  declare  as  a 
matter  of  law  no  such  benefit  can  arise,  the  legislature  is  power- 
less to  impose  such  a  burden.  Tt  would  not  be  a  tax  in  any 
]>roper  sense  of  the  term;  it  wduld  be  in  the  nature  of  a  forced 
loan,  and  would  ])ractically  amount- to  conHscation." -'  Thus, 
where  a  street  crosses  a  railway  right  of  way  at  right  angles,  it 
has  been  held  that  no  benefit  accrues  to  the  railway  company 
from  the  improxcment  of  the  street,  and  that  no  assessment  can 
be  levied.-'*  And  where  a  railway  company  has  a  mere  right  ol 
wav  across  a  lot  to  which  it  does  not  hold  title,  it  cannot  be 
assessed  for  the  construction  of  an   improvement  adjoining  the 


Kokomo,  186  Ind.  9.  114  N.  E.  758. 
See  also  South  Park  Borough  v. 
Pennsylvania  R.  Co.,  251  Pa.  261, 
96  Atl.  710.  But  compare  T^[arion  &c. 
Trac.  Co.  v.  Simmons,  180  Ind. 
289,  102  N.  E.  132:  Pittsburgh  &c. 
R.  Co.  V.  Taber,  168  Tnd.  419.  11 
X.  E.  741:  Des  ]\[oines  City  R.  Co. 
V.  Dcs  Moines,  183  Iowa  984,  159 
X.  W.  450,  L.  R.  A.  1918D,  839. 

-'■  Allegheny  City  v.  West  Penn- 
sylvania R.  Co.,  138  Pa.  St.  375,  21 
.-Xtl.  763.  See  also  Farmers'  &c. 
Co.  V.  Ansonia,  61  Conn.  76,  23 
Atl.  705:  Boston  v.  Boston  &c.  R. 
Co.,  170  Mass.  95,  49  N.  E.  95; 
Detroit  &c.  R.  Co.  v.  Grand  Rap- 
ids, 106  Mich.  13,  63  N.  W.  1007. 
28  L.  R.  A.  793,  58  Am.  St.  466. 

28  State  v.  Elizabeth.  Zl  X.  J.  L. 
330:  Xew  York  &c.  Co.  v.  Morri- 
sania,  7  Hun  (N.  Y.)  652;  Junction 
&c.  Co.  v.  City.  88  Pa.  St.  424; 
Great  Eastern  Sic.  Co.  v.  Hackney 
District,  L.  R.  8  App.  Cas.  687. 
See  Salem  v.  Henderson,  13  Ind. 
App.  563,  41  X.  E.  1062.  If  the 
right  of  way  is  broader  than  neces- 
sary for  the  track,  the  surplus  may 
be  assessed.  Xew  York  &c.  Co.  v. 
Morrisania,    7    Hun     (X.    Y.)     652. 


Compare  X'orthern  &c.  Co.  v.  Con- 
nelly, 10  Ohio  St.  159.  Z(i  Am.  Dec. 
82,  and  note:  Chicago  &c.  Co.  v. 
Chicago,  139  111.  573.  28  X.  E.  1108. 
The  doctrine  of  the  text  was  de- 
clared and  enforced  in  the  recent 
case  of  Detroit  &c.  R.  Co.  v.  Grand 
Rapids,  106  Mich.  13,  63  X.  W. 
1007,  28  L.  R.  A.  793,  58  Am.  St. 
466,  where  it  was  said:  "The  right 
of  way  so  assessed  contains  the 
main  track  and  one  side  track.  Tt 
has  nothing  else  upon  it,  and  is 
used  for  no  other  purpose.  It  has 
already  been  dedicated  to  a  public 
use,  and  the  question  is  presented 
whether  a  railroad  right  of  way 
can  be  assessed  by  municipal  cor- 
porations for  public  improvements. 
So  far  from  being  any  benefit,  it 
is  established  by  the  evidence  that 
the  opening  and  paving  of  the 
street  were  a  damage  to  the  com- 
plainant. A  right  of  way  can  not 
be  benefited  by  the  opening  and 
paving  of  a  street  across  it.  None 
of  the  buildings  of  the  complain- 
ant are  within  two  blocks  of  this 
crossing.  We  can  see  no  benefits, 
immediate  or  prospective,  to  the 
complainant.      The    division   of   the 


361 


LX)CAL  ASSESSMENTS 


950 


lot.-''  In  many  of  the  cases  in  which  it  was  held  that  the  right 
of  way  could  not  be  assessed,  the  improvement,  to  pay  for  which 
the  assessment  was  sought  to  be  levied,  was  a  street,  and  it 
dearly  ap])cared  that  no  benefit  resulted  to  the  right  of  way,  but 
where  it  clearly  appears  that  a  benefit  results  from  the  improve- 
ment, such  as  the  benefit  derived  from  the  construction  of  a 
street  drain,  sewer,  or  the  like,  the  levy  of  the  assessment  may 
be  proper  and  valid. "°    So,  it  has  been  held  that  the  fact  that  the 


right    of    way    into    three     parcels 
was    arbitrary,    as    were    also    the 
valuations    and    supposed    benefits. 
The    point    is    so   clearly  and    con- 
cisely stated  by  the  court  of  Penn- 
sylvania,  that   we    quote    the    opin- 
ion in   Philadelphia  v.  Pliiladelphia 
W.    &    B.    R.    Co.,    33    Pa.    St.    41: 
'The    municipal    authorities    paved 
the    Gray's   Ferry   road   for   a   con- 
siderable distance,  at  a  place  where 
it    lies    side    by    side    with    the    de- 
fendant's railroad,  and  now  seek  to 
charge   them   with   the   half   of  the 
cost   of  it;  but  they  can  not  do  it. 
Their     claim     has     no     foundation, 
either   in   the   letter   of   the   law   or 
in  its  spirit,  or  in  the  form  of  the 
remedy.     Not  in  the  letter,  because 
the    defendants    do    not    own    the 
land    sought ,  to    be    charged,    and 
have  only  their  right   of  way  over 
it.      Not   in   the   spirit,   because   the 
paving  laws  are  means  of  compul- 
sory contribution  among  the  com- 
m.on  sharers  in  a  common  benefit, 
and  as  a  railroad  can  not,  from  its 
very  nature,  derive  anj-  benefit  from 
the    paving,    while    all    the    rest    of 
the  neighborhood  may,  we  can  not 
presume   that   the   compulsion  was 
intended    to    be    applied    to    them. 
Not    in    the    form    of   the    remedy, 
because  the  execution  of  this   sort 
of    claim    is,    levari    facias,    a    writ 


not  commonly  allowed  against  cor 
porations.  and  which  would  hardlj' 
produce  much  when  directed 
against  a  public  right  of  way.  It 
would  be  strange  legislation  that 
would  authorize  the  soil  of  one 
public  road  to  be  taxed  in  order  to 
raise  funds  to  make  or.  improve  a 
neighboring  one.'  The  same  doc- 
trine is  held  in  Junction  R.  Co.  v. 
Philadelphia,  88  Pa.  424;  State  v. 
Elizabeth,  ?>7  N.  J.  L.  331;  New 
York  &c.  R.  Co.  v.  Morrisania 
Trustees,  7  Hun  (N.  Y.)  652: 
Bloomington  v.  Chicago  &  A.  R. 
Co.,  134  III.  451,  26  N.  E.  366: 
Bridgeport  v.  New  York  &c.  R. 
Co.,  36  Conn.  255,  4  Am.  Rep.  6Z: 
South  Park  Comrs.  v.  Chicago  &c. 
R.  Co.,  107  111.  105:  New  York  &c. 
R.  Co.  V.  New  Haven,  42  Conn. 
279,  19  Am.  Rep.  534."  See  Pitts- 
burgh &c.  R.  Co.  V.  Taber.  168 
Ind.  419,  77  N.  E.  741.  where  it  is 
held  that  the  abutting  railroad 
right  of  way  is  subject  to  assess- 
ment for  improvement  of  the  part 
of  a  street  through  the  right  of 
way,  though  the  fee  of  such  land 
is  in  the  railroad  company  subject 
to  the  easement  of  the  street. 

29  Muscatine  v.  Chicago  &c.  Co., 
88  Iowa  291,  55  N.  W.  100. 

■"50  North   Beach   &c.    Co..   Appeal 
of,    Z2    Cal.    499:    Bloomington    v. 


§U51 


RAILKUADS 


;]62 


only  use  made  of  a  lot  abutting  on  a  street  improvement  is  for 
a  railroad  right  of  way,  does  not  make  an  assessment  thereon 
invalid  on  the  alleged  ground  that  there  can  be  no  benefit.'^  But 
it  is  evident  the  special  benefit  for  which  the  assessment  is  made 
must  often  be  more  restricted  in  some  railroad  cases  than  in  the 
case  of  an  ordinary  landowner  whose  lands  may  be  devoted  to 
many  uses  or  purposes.^^ 

§  951  (787).  Abutting  property — Right  of  way  is  not. — Where 
a  railway  company  has  its  track  or  right  of  way  in  a  street,  it  has 
been  held  that  the  right  of  way  is  not  assessable  as  property 
"abutting  on  the  street,"^^  or  as  property  "bordering  on  or  touch- 


Railroad  Co.,  134  111.  451.  26  N.  E. 
366;  Louisville  &c.  Co.  v.  Bone}% 
117  Ind.  501,  20  X.  E.  432.  3  L.  R. 
A.  435,  and  note;  Louisville  &c. 
Co.  V.  State,  122  Ind.  443,  24  N.  E. 
350;  Troy  &c.  Co.  v.  Kane,  9  Hun 
(N.  Y.)  506;  Northern  Pac.  R.  Co. 
V.  Richland  County,  28  N.  Dak. 
172,  148  N.  W.  545,  Ann.  Cas. 
1916E,  574,  and  elaborate  note. 
Thus  a  street  railway  has  been 
lield  liable  to  an  assessment  for 
the  widening  of  a  street.  North 
Beach  &c.  R.  Co.,  Appeal  of,  32 
Cal.  499. 

31  Louisville  &c.  R.  Co.  v.  Bar- 
ber Asphalt  Pav.  Co.,  197  U.  S. 
430,  25  Sup.  Ct.  466,  49  L.  ed.  819. 
Compare  Chicago  &c.  R.  Co.  v. 
Chicago.  166  U.  S.  226,  17  Sup.  Ct. 
581,  41  L.  ed.  979;  Martin  v.  Dis- 
trict of  Columbia.  205  U.  S.  135, 
27  Sup.  Ct.  440,  51  L.  ed.  743.  And 
a  few  courts  hold  that  the  right  of 
way,  at  least  in  ordinary  cases, 
will  be  conclusively  presumed  to 
be  benefited.  See  note  in  Ann. 
Cas.  1916E,  579. 

32  See  City  of  Lincoln  v.  Chi- 
cago  &c.   R.   Co.,  262   111.   11,    104 


N.  E.  277;  City  of  Lincoln  v.  Chi- 
cago &c.  R.  Co.,  263  111.  114,  104 
X.  E.  1022.  The  whole  subject  of 
this  section  is  considered  and  the 
authorities  on  both  sides  of  the 
main  question  and  -its  various 
phases  are  reviewed  in  note  to 
Meman  &c.  Co.  v.  Wabash  R.  Co., 
206  Mo.  172,  in  12  L.  R.  A.  (X.  S.) 
112,  and  note  to  Georgia  R.  &c. 
Co.  V.  Decatur,  137  Ga.  537,  73 
S.  E.  830,  in  40  L.  R.  A.  (N.  S.) 
935. 

33  South  Park  Commissioners  v. 
Chicago  &c.  Co.,  13  Am.  &  Eng. 
R.  Cas.  415;  State  v.  Mayor  fX. 
J.),  50  Atl.  620  (citing  text).  See 
also  State  v.  District  Court,  31 
Minn.  354,  17  N.  W.  954;  O'Reilly 
V.  King.ston,  114  N.  Y.  439,  21  X. 
E.  1004;  People  v.  Gilon,  126  X.  Y. 
147,  27  X.  E.  282;  Oshkosh  City 
R.  Co.  v.  Winnebago  Co.,  89  Wis. 
435.  61  X.  W.  1107.  Rut  see  post, 
§  953.  See  generally  as  what 
is  meant  by  "abutting."  City  of 
Shreveport  v.  Shreveport  Trac. 
Co.,  134  La.  568,  64  So.  414;  Texas 
P.itulitliic  Co.  V.  Abilene  St.  R.  Co. 
(Tex.  Civ.  App.),  166  S.  W.  433. 


^63 


LOCAL  ASSESSMENTS 


§951 


ing-  the  street."  ^*  It  is  held  that  ^\•here  the  only  interest  a  rail- 
way company  has  in  a  right  of  way  laid  in  a  street  is  the  right  to 
run  it?  t'"ains  over  the  track,  it  cannot  be  assessed  for  a  local 
improxement.''"'  But  where  the  tracks  of  a  company  are  laid  in 
a  street  the  company  is  lial^le  to  assessment  for  keeping  the 
street  in  repair.-'"'  And  it  has  also  1)ecn  held  that  a  railroad  right 
of  way  located  in  a  public  street  is  liable  to  assessment  for  a 
local  improvement  under  the  Illinois  statute,  providing  for  local 
improvements  b}-  special  assessment  of  "contiguous  property."'^ 
But  it  is  held  in  Iowa  that  a  railroad  right  of  way  alongside, 
but  not  in  a  street,  cannot  be  assessed  under  a  statute  author- 
izing assessments  against  lots  and  parcels  of  land  fronting  on 
the  highway  or  upon  a  railroad  occupying  a  i^ortion  of  a  street, 
and  that  a  lessee  which  has  agreed  to  pay  all  taxes  and  assess- 
ments is  not  liable  to  a  city  or  contractor,  neither  of  whom  is 
in  privity  with  it,  for  the  amount  of  a  local  assessment.^^  The 
same  court,  however,  has  held  that  the  interest  of  an  inter- 
urban  or  street  railway  company  in  a  strip  of  land  granted  to 
it  for  the  operation  of  its  road,  to  revert  on  cessation  of  such 


34  O'Reilly  v.  Kingston,  114  N.  Y. 
439.  21  X.  E.  1004.  Statutes  con- 
ferring authority  to  levy  and  en- 
force are,  as  we  have  seen,  to  be 
strictly  construed,  and  it  is  difficult 
to  perceive  an}"-  valid  reason-  for 
holding  a  right  of  way  on  which 
tracks  are  laid  to  be  property  or 
lots  fronting,  abutting  or  border- 
ing on   a  street. 

33  Louisville  &c.  Co.  v.  East  St. 
Louis,  134  III.  656,  25  N.  E.  962. 

^^  Fair  Haven  &c.  Co.  v.  New 
Haven.  38  Conn.  422,  9  Am.  Rep. 
399:  Chicago  v.  Baer,  41  111.  306. 
See  also  Page  v.  Chicago,  60  111. 
441 :  People  v.  Chicago  &c.  R.  Co., 
67  III.  118:  Louisville  &c.  R.  Co. 
V.  State,  3  Head  (Tenn.)  524: 
Memphis  &c.  R.  Co.  v.  State.  ^7 
Tenn.  746.  11   S.  W.  946;   Evler  v. 


Allegheny  Co..  49  Md.  257.  33  Am. 
Rep.  249;  Elliott  Roads  and  Streets. 
591.  592  (3rd  ed.).  §985,  et  seq. 
Contra,  Mayor  v.  Rox^al  &c.  Co., 
45  Ala.  322.  The  question  as  to 
the  liability  of  street  railwa}-  com- 
panies and  the  distinction  between 
improvements  and  repairs  in  such 
cases  will  be  treated  in  another 
chapter. 

"Rich    v.    Chicago,    152    III.    18, 

38  N.  E.  255.  See  also  Chicago 
&c.   R.    Co.   V.   Joliet,   153   111.   649. 

39  N.  E.  1077,  1079;  Chicago  &c. 
R.  Co.  V.  Elmhurst,  165  111.  148. 
152,  46  N.  E.  437.  Compare  also 
International  &c.  R.  Co.  v.  Boles 
(Tex.  Civ.  App.).  161  S.  W.  914. 

38  Chicago  &c.  R.  Co.  v.  Ottuni- 
wa.  112  Iowa  300,  83  N.  W.  1074, 
51  L.  R.  A.  763. 


^  952 


RAILROADS 


364 


use,  is  property  wliich  may  be  assessed  as  abutting  property 
where  there  is  a  strip  of  highway  on  each  si«le.  from  which  it 
is  separated  by  a  curb.^° 

§952  (787a).  Whether  street  railroads  are  subject  to  assess- 
ment.— The  same  hick  of  harmony  in  the  decisions  noted  in  the 
]M-cce(Hng  section  is  shown  in  the  cases  relating  to  the  right  of 
a  citv  to  levy  special  assessments  on  street  railway  tracks  laid 
in  the  streets.  Special  assessment  statutes  have  been  regarded 
as  in  derogation  of  the  rights  of  property,  and  hence  to  be 
strictly  construed.*"  In  conformity  with  this  view  it  has  been 
held  that  street  surface  railroads  are  not  subject  to  assessment 
for  street  improvements  unless  the  law  has  made  them  specially 
liable  thereto.-*^  Thus,  statutes  placing  the  burden  on  "abut- 
ting" property  will  not  cover  street  railway  tracks,  since  the 
street  railroad  company  does  not  own  any  part  of  the  street, 
nor  is  it  alnitting  ])roperty.'-  Neither  docs  the  fact  that  the 
street  railroad  company  is  bound  by  law  to  make  permanent 
repairs  upon  the  portion  of  the  street  between  its  tracks  render 
the  |)roperty  subject  to  these  assessments.*'*  And  it  has  been 
held  that  the  track  is  not  "real  estate"  within  the  meaning  of 
a  charter  making  real  estate  liable  to  special  assessment  for 
street  improvements.**     Another  case  holds  that  a  statute  pro- 


39  Des  Moines  City  Ry.  Co.  v. 
Des  Moines,  183  Iowa  984,  159  N. 
W.  450.  L.  R.  A.  1918D,  839. 

*'>  Oshkosh  &c.  R.  Co.  v.  Winne- 
bago Co.,  89  Wis.  435,  61  N.  W. 
1107. 

41  People  V.  Gilon,  126  N.  Y.  147. 
27  N.  E.  282.  See  also  Seattle  v. 
Seattle  Elec.  Co..  48  Wash.  599,  94 
Pac.  194,  15  L.  R.  A.  (N.  S.)  486. 
r.nd   cases   there   cited   in   note. 

42  South  Park  Comrs.  v.  Chicago 
&c.  R.  Co.,  107  111.  105;  Haynes 
Automobile  Co.  v.  Kokomo,  186 
Tnd.  9.  114  N.  E.  758;  Indianapolis 
&c.  R.  Co.  V.  Capitol  Pav.  &c.  Co., 
24    Ind.    App.    114,    54    N.    E.    1076; 


Koons  V.  Lucas,  52  Iowa  177,  3 
N.  W.  84;  O'Reilly  v.  Kingston, 
114  N.  Y.  499,  21  N.  E.  1004; 
Houston  &c.  R.  Co.  v.  Storrie 
(Tex.  Civ.  App.),  44  S.  W.  693: 
Oshkosh  &c.  R.  Co.  v.  Winnebago 
County,  89  Wis.  435,  61  N.  W. 
1107. 

43  Conway  v.  Rochester,  24  App. 
Div.  489,  49  N.  Y.  S.  244;  Oshkosh 
<.*v:c.  R.  Co.  V.  Winnebago  Co.,  89 
Wis.  435,  61  N.  W.  1107.  See  also 
Farmers'  T.  Co.  v.  Ansonia,  61 
Conn.  76,  23  Atl.  705. 

44  State  v.  District  Court,  31 
Minn.  354.  17  N.  W.  954.  Com- 
pare  also   Haj-nes   Automobile   Co. 


365 


LOCAL  ASSESSMENTS 


§  953 


vidins'  lliat  tlu-  track  and  rii^dit  of  way  of  railroad  companies 
shall  be  exempt  from  taxation,  "except  that  the  same  shall  be 
sul)ject  to  special  assessments  for  local  improvements  in  cities 
and  villag-es,"  is,  at  most,  a  mere  general  declaration  that  the 
property  shall  be  subject  to  such  assessment  in  cases  provided 
l>y  law,  and  hence  the  power  to  levy  such  an  assessment  must 
be  found  in  some  other  statute. •*''  Under  the  Illinois  statute, 
which  makes  contiguous  property  liable  to  assessment,  the 
authorities  are  numerous  and  consistent,  to  the  effect  that  the 
street  railroad  track  is  subject  to  assessment.  Here  it  is  held 
that  the  property  of  a  street  railroad  company  is  of  a  character 
to  be  substantially  and  directly  benefited  by  the  proposed  pav- 
ing of  a  street,  and  that  in  proportion  as  it  is  thus  benefited  it 
should  contribute  its  share  to  the  cost  of  the  improvement  in 
common  with  the  property  on  the  street.**^  The  same  rule  is 
held  to  apply  to  an  elevated  railroad.*^  It  is  clear  that  the  street 
railroad  company  will  be  liable  to  assessment  where  it  accepts 
a  charter  under  which  it  consents  to  bear  its  proportion  of  the 
cost  of  the  improvement  of  streets  traversed  by  it.*^ 

§953   (788).     Right  of  way — Mode  of  assessing. — Where  the 
right  of  wav  of  a  railroad  company  is  liable  to  an  assessment 


V.  Kokomo,  186  Ind.  9.  114  N.  E. 
758.  But  see  note  in  15  L.  R.  A. 
(N.  S.)   489. 

45  Oshkosh  &c.  R.  Co.  v.  Winne- 
bago Co.,  89  Wis.  435,  61  N.  W. 
1107. 

4«  Chicago  V.  Baer.  41  111.  306; 
Parmelee  v.  Chicago,  60  111.  267; 
Kuehner  v.  Freeport,  143  111.  92. 
2>2  X.  E.  372,  17  L.  R.  A.  774; 
Lightner  v.  Peoria,  150  111.  80.  2,7 
N.  E.  69;  Billings  v.  Chicago,  167 
111.  2>i7,  47  N.  E.  731;  West  Chi- 
cago &c.  R.  Co.  v.  Chicago.  178 
111.  339.  53  N.  E.  112;  Cicero  &c. 
R.  Co.  V.  Chicago,  176  III.  501,  52 
N.  E.  866.  Such  is  the  prevailing 
rule    where    the    statute    is    broad 


enough.  Shreveport  v.  Shreveport 
&c.  R.  Co.,  104  La.  260,  29  So.  129: 
New  Haven  v.  Fair  Haven  &c.  R. 
Co.,  38  Conn.  422.  9  Am.  Rep.  399; 
Freeport  St.  R.  Co.  v.  Freeport, 
151  111.  451,  38  N.  E.  137;  Troy 
&c.  R.  Co.  V.  Kane,  9  Hun  (N.  Y.) 
506.  See  also  Des  Moines  City  Ry. 
Co.  V.  Des  Moines.  183  Iowa  984, 
159  N.  W.  450.  L.  R.  A.  1918D.  839. 

*'  Lake  St.  El.  R.  Co.  v.  Chicago. 
183  111.  75,  55  N.  E.  721.  47  L.  R. 
A.  624. 

4s  Schmidt  v.  Market  St.  &c.  R. 
Co.,  90  Cal.  2,7,  39,  27  Pac.  61.  See 
also  Municipal  Securities  Corp.  v. 
Metropolitan  St.  R.  Co.,  196  Mo. 
App.  518.  196  S.  W.  400. 


§  954  RAILROADS  366 

to  pay  for  a  local  iinprcnenicnt  there  seems  to  be  no  distinction 
between  the  mode  of  assessing  it  and  other  lands  subject  to 
the  assessment  for  the  same  improvement,  where  the  right  of 
Avay  bears  the  same  relation  to  the  street  as  other  lands  adjoin- 
ing the  street,  liut  where  the  railway  runs  longitudinally  along 
the  street  a  special  rule  usually  applies.  The  different  modes 
of  assessment  which  have  been  held  valid  in  assessing  local 
charges  against  the  lands  of  individuals  and  lands  not  occupied 
as  a  right  of  way  l)v  a  railway  company  seem  to  be  equally 
applicable  to  lands  occu]iicd  as  a  railway  right  of  way.  Thus, 
where  the  mode  of  assessment  to  pay  for  the  improvement  of 
a  street  was  by  assessments  levied  in  proportion  to  the  front 
feet  abutting  on  the  improvement,  it  was  held  that  a  railway 
right  of  way  abutting  on  the  improvement  was  subject  to  assess- 
ment as  abutting  ])ro])crt_\-.  the  same  as  other  lands  or  lots.*^ 
Where  a  railroad  track  ran  longitudinally  through  a  street,  a 
statute  making  the  com])any  liable  to  local  assessment  for  im- 
proving the  street  for  the  proportional  amount  of  the  street 
occupied  by  the  track  was  held  to  be  valid.^° 

§954  (788a).  Assessment  for  drainage  purposes. — It  is  cer- 
tainly within  the  power  of  the  legislature,  in  proper  cases,  to 
require  a  railroad  company,  whose  right  of  way  is  benefited  by 
a  system  of  drainage,  to  bear  its  proportion  of  the  expense  of 

49  Chicago  v.  P.aer,  41  111.  306:  Tn  Peru  &c.  Co.  v.  Ilanna.  68  Ind. 
Illinois  Cent.  Co.  v.  Decatur,  126  562,  it  was  said  by  the  court:  "We 
111.  92,  18  N.  E.  315,  1  L.  R.  A.  are  of  the  opinion  that  the  track 
613,  and  note;  Chicago  &c.  Co.  v.  of  a  railroad  coinQany.  when  it 
Joliet,  153  111.  655,  39  N.  E.  1077:  borders  on  a  street,  is  properly 
Lake  Erie  &c.  Co.  v.  Walters,  9  assessable  for  its  due  proportion 
Ind.  App.  684,  37  N.  E.  295:  Bur-  of  the  cost  of  the  improvement  of 
lington  &c.  Co.  v.  Spearman,  12  such  street  under  an  ordinance  of 
Iowa  112;  Northern  &c.  Co.  v.  tlie  city."  Much  depends  upon  the 
Connelly,  10  Ohio  St.  159.  36  Am.  particular  statute  under  which  the 
Dec.  82,  and  note.  See  also  Pitts-  assessment  is  levied,  and  it  is  un- 
burgh  &c.  R.  Co.  v.  Taber,  168  safe  to  accept  as  indicative  of  a 
Ind.  419,  11  N.  E.  741.  Rut  it  general  rule  cases  decided  upon 
seems  to  us  that  tliere  is  reason  to  particular  statutes, 
doubt  the  soundness  of  the  doc-  ^^  Lake  Shore  &c.  Co.  v.  Dun- 
trine    of   some    of   the    cases   cited.  kirk,  20  N.  Y.  S.  596. 


'.]61  LOCAL  ASSESSMENTS  §  955 

this  work.'''  The  method  of  assessment  of  raih-oad  property  in 
cases  of  this  character  has  been  the  subject  of  a  special  statute  in 
llhnois,  which  pro\ides  that,  when  a  railroad  will  be  benefited, 
the  commissioners  may  assess  the  road  in  proportion  to  the  bene- 
fits received,  "which  shall  be  determined  by  estimating  the 
amount  of  l)enefits  to  the  entire  district,  including'  the  benefits 
to  .  .  .  such  railroad,  and  also  the  benefit  to  .  .  .  the  railroad, 
then  the  fractional  figures  expressing  the  ratio  between  the  sum 
of  the  benefits  for  the  whole  district,  and  the  sum  found  to  he  the 
benefit  to  the  .  .  .  railroad  shall  express  the  proportional 
part  of  the  corporate  taxes  of  the  district  to  be  paid  by  such 
.  .  .  railroad."  This  proportional  classification  is  subject  to 
review  at  the  instance  of  the  railroad  company  in  the  same 
manner  as  is  provided  for  individual  landowners  affected.^-  This 
statute  has  been  upheld  against  the  objection  that  it  authorized 
unlimited  expenditure  and  disregarded  the  necessary  ec|uality 
l)etw^een  expenditure  and  benefits.^'  There  is  authority  to  the 
effect  that  where  the  statute  creating  a  lien  upon  a  railroad  for 
drainage  assessments  does  not  authorize  a  sale  of  the  body  of 
the  road  to  satisfy  the  lien,  an  order  of  the  court  directing  such 
sale  is  void.^* 

§955  (788b).  Bridges  over  natural  watercourses  utilized  for 
drainage  purposes. — The  adequacy  of  a  bridge  over  a  stream, 
and  the  opening  under  it  for  the  passage  of  the  water  at  the 
time  of  its  construction,  does  not  determine  for  all  time  the 
obligation  of  the  railroad  company.  The  law  goes  further,  and 
charges  the  company  with  the  duty  to  maintain  an  opening 
under  the  bridge  that  will  be  adequate  and  effectual  for  increases 
in  the  volume  of  the  w^ater  resulting  from  reasonable  and  lawful 


"  Illinois      Central      R.      Co.     v.  52  Act   of   Illinois   June   27,    1885. 

Drainage    Commissioners,    129    111.  §  40. 

417,  21    N.   E.  925;   Drainage  Dist.  s^  Illinois      Central      R.      Co.     v. 

v.  Chicago  &c.  R.  Co.,  96  Nebr.  1,  Drainage    Comrs.,    129    III.   417.   21 

146  N.  W.  1055.     See  also  State  v.  X.  E.  925. 

Passaic,    54    N.   J.    L.    340,    23    Atl.  5*  Louisville  &c.  R.   Co.  v.  State, 

945.  122  Ind.  443.  24  N.  E.  351. 


V  956  KAILROADS  368 

drainag'e  regulations."'"'  Conformably  to  this  doctrine  the  Su- 
preme Court  of  the  United  States  has  held  that  the  charging 
upon  a  railroad  conipan}-  of  the  entire  cost  of  removal  and  re- 
]>uilding  a  railroad  bridge  and  culvert,  made  necessary  by  the 
j)rop()sed  widening  and  deepening  of  the  channel  of  a  creek  by 
drainage  commissioners  acting  under  a  stale  law  authorizing 
such  action,  does  not  violate  the  due  process  or  e(pial  ])r()tection 
clauses  of  the  federal  constitution."''^ 

§956   (789).     Lien    of    the    assessment — Personal    liability. — 

The  statutes  conferring  upon  municipalities  the  power  to  levy 
local  assessments  to  pay  for  local  improvements  usually,  if  not 
always,  provide  that  the  amount  of  the  assessment  shall  be  a 
lien  upon  the  lots  or  lands  against  which  the  assessment  is 
ie\ied.  Idie.^e  liens  are  ])urely  statutory,  and  their  existence, 
force  and  extent  depend  u])on  the  terms  of  the  statute  creating 
them.'"  Such  liens  are  ordinarily  superior  to  all  liens  except 
general  taxes,  and  the  authority  of  the  legislature  to  make  them 
such  is  firmly  established.  The  assessments  being  made  on  the 
theory  that  the  property  is  benefited  and  enhanced  in  value  in 
a  sum  equal  to  the  amoimt  of  the  assessment,  no  injury  can 
result  to  other  lienholders,  such  as  mortgagees,  mechanic  lien 
liolders,  and  the  like,  fn  addition  to  the  lien  given  against  the 
property  benefited,  some  of  the  statutes  make  the  property 
owner  personally  liable  for  the  assessment.  This  personal  lia- 
bility, however,  cannot  exist  in  any  event,  in  ordinary  cases, 
unless  there  is  a  valid  statute  creating  it.-'^^    There  is  very  grave 

•'•5  Chicago  &c.  R.   Co.  v.   Illinois,  v.   Alinncipolis,   124   ATinn.  351,   145 

200  U.   S.  561,  26  Sup.   Ct.  341.   50  N.  W.  609,  50  L.  R.  A.  (N.  S.)  143 

T..    cd.    596,    afl'irming    212    111.    103.  and  note. 

72  N.  E.  219.  '■'  State    v.    Aetna    T.ife    Ins.    Co., 

•-'6  Chicago  &c.   R.  Co.  v.   People.  117  Tnd.  251,  20  N.  E.  144:  Kiphart 

200  U.   S.   561,  26  Sup.   Ct.  341,   50  v.   Pittsburgh  &c.  Co.,  7  Ind.  App. 

P.    ed.    596.    aflirniing    212    Til.    103,  122,   34   N.    E.    375:    Cause   v.    P.ul- 

72   N.   E.   219.      Sec   as   to   whether  lard,  16  Pa.  Ann.  197:   Philadelphia 

a    municipality    has    power    to    as-  v.  Greble,  38  Pa.  St.  339. 

sume    part    of    burden    of    fitting    a  "'^  Tvanhoe  v.   Enterprise,  29  Ore. 

bridge    or    street    so    that    railroad  245,  45  Pac.  771.  35  L.  R.  \.  58,  61 

can  use  it,  Minneapolis  &c.   R.  Co.  (citing    Elliott    Roads    and    Streets 


569 


LOCAL  ASSESSMENTS 


§  95G 


doubt  as  to  the  constitutionality  of  such  a  statute/'®  Imposing 
such  a  lial)ility  on  the  owner  would  in  many  cases  be  a  great 
hardship,  for  it  is  easy  to  conceive  of  cases  where  the  assess- 
ment might  be  so  heavy  that  the'  property  would  not  sell  for 
enough  to  pay  it.  The  weight  of  authority,  if  numerical  supe- 
riority controls,  seems  to  be  in  favor  of  the  constitutionality  of 
such  statutes.''"  but  few  of  the  cases  appruxMitly  to  this  effect 
real!}'  decide  the  question  and  there  is  very  great  conflict.'"'     The 


(2nd  cd.),  §  567);  Green  v.  Ward. 
82  Va.  324:  Wolf  v.  IMiiladelphia. 
105  Pa.  St.  25:  McCrowell  v.  Bris- 
tol. 89  Va.  652.  16  S.  E.  867,  20 
I..  R.  A.  653,  and  note.  See  also 
2  Elliott  Roads  &  Sts.  (3rd  ed.). 
§  706.  But  where,  as  in  case  of 
railroad  companies,  the  property- 
can  not  be  sold  piecemeal  without 
injury  to  the  public  there  may  be 
reason  for  rendering  a  personal 
judgment  or  the  company  might 
otherwise  escape. 

■■"•^  In  our  opinion  there  can,  upon 
principle,  be  no  personal  liability 
since  the  whole  right  to  levy  a 
local  assessment  rests  upon  the 
ground  that  the  property  is  bene- 
fited to  the  extent  of  the  assess- 
ment. See,  for  discussion  of  the 
subject,  and  authorities  on  both 
sides,  Elliott  Roads  and  Streets 
(3rd  ed.),  §  707;  note  to  Brookings 
V.  Natwick,  22  S.  Dak.  322,  in  18 
L.  R.  A.  (N.  S.)   1259. 

^°  Nichols  V.  Bridgeport,  23  Conn. 
189,  60  Am.  Dec.  636;  ^luscatine 
v.  Chicago  &c.  Co..  79  Iowa  645, 
44  N.  W.  909:  Dewey  v.  Des 
Moines,  101  Inwa  416.  70  N.  W. 
605;  New  Orleans  v.  Wire,  20  La. 
-Ann.  500;  Franklin  v.  Hancock,  204 
Pa.  110.  53  Atl.  644:  Lake  Shore 
&c.  Co.  V.  Dunkirk.  65  Hun  (N.  Y.) 
494.    20     N.     v.     S.     596:     City    of 


Rochester  v.  Rochester  R.  Co.,  109 
App.  Div.  638,  96  N.  Y.  S.  152.  See 
also  Pittsburgh  &.c.  R.  Co.  v.  Hays, 
17  Tnd.  App.  261,  44  N.  E.  375,  45 
N.  E.  675,  46  N.  E.  597:  Hazard 
v.  Heacock,  39  Ind.  172;  Pitts- 
burgh &c.  R.  Co.  v.  Tabcr.  168 
Ind.  419,  77  N.  E.  741. 

61  Taylor  v.  Palmer,  31  Cal.  240: 
Virginia  v.  Hall,  96  111.  278;  Hoover 
V.  People,.  171  III.  182,  49  N.  E. 
367;  Burlington  v.  Quick,  47  Iowa 
222;  Macon  v.  Patty,  57  Miss.  378, 
34  Am.  Rep.  451;  Higgins  v.  Aus- 
mnss,  77  Mo.  351;  Seattle  v.  Yes- 
ler,  1  Wash.  Ter.  571;  Sweaney  v. 
Kansas  City  &c.  Co.,  54  Mo.  App. 
265;  City  of  Brookings  v.  Natwick, 
22  S.  Dak.  322,  117  N.  W.  376.  18 
L.  R.  A.  (N.  S.)  1259,  and  other 
cases  there  cited  in  note:  Asberry 
V.  Roanoke,  91  Va.  562.  22  S.  E. 
360,  42  L.  R.  A.  636.  In  Neenan 
V.  Smith,  50  :\[o.  525,  528,  it  is  said: 
"All  taxation  is  supposed  to  be  for 
the  benefit  of  the  person  taxed. 
That  for  raising  a  general  revenue 
is  imposed  primarily  for  his  pro- 
tection as  a  member  of  society, 
both  in  his  person  and  his  property 
in  general  and  hence  the  amount 
assessed  is  against  him  to  be 
charged  against  his  property,  and 
may    be    collected    of    him    person- 


S' 


RAILROADS 


370 


statutes  crcatinj^-  a  lien  for  local  assessments  being  remedial  in 
their  nature,  and  intended  to  secure  the  person  constructing  the 
inii)r()vement  iov  liis  outlay,  should  be  liberally  construed  to 
acc<>m])lisli  that  i)urp()se.'^-  A  statute  which  provides  for  the 
recovery  of  a  reasonalde  attorney's  fee  in  actions  to  foreclose 
the  lien  of  an  assessment  for  a  local  improvement  is  constitu- 
tional.*'^ 

§957  (789a).  Property  secondarily  liable — Back-lying  prop- 
erty.— In  some  states  the  statute  makes  abutting  property  pri- 
marilv  liable  for  a  certain  distance  back  of  the  front  property 


ally.  But  on  the  other  hand,  local 
taxes  for  local  improvements  are 
merely  assessments  upon  the  prop- 
crt3^  benefited  by  such  improA-c- 
mcnts,  and  to  pay  for  the  benefits 
which  they  are  supposed  to  confer; 
the  lots  are  increased  in  value,  or 
better  adapted  to  the  uses  of  town 
lots,  by  the  improvement.  Upon 
no  other  ground  will  sucli  partial 
taxation  for  a  moment  stand.  Other 
propert}'  held  by  the  owner  is  af- 
fected by  this  improvement  pre- 
cisely and  only  as  is  tlie  property 
of  all  other  members  of  the  com- 
munity', and  there  is  no  reason  why 
it  should  be  made  to  contribute, 
that  does  not  equally  apply  to  that 
of  all  others.  The  sole  object, 
then,  of  a  local  tax  being  to  bene- 
fit local  property,  it  should  be  a 
charge  upon  that  property  only, 
and  not  a  general  one  upon  the 
nwner.  The  latter,  indeed,  is  not 
what  is  understood  by  local  or 
special  assessment,  but  the  very 
term  would  confine  it  to  the  prop- 
erty in  the  locality;  for  if  the 
owner  be  personally  liable,  it  is 
not  only  a  local  assessment  but 
al^o  a  general  one  as  against  the 
owner.     The  reasonableness  of  this 


restriction  will  appear  when  we 
reflect  that  there  is  no  call  for  a 
general  execution  until  the  prop- 
erty charged  is  exhausted.  If  that 
is  all  sold  to  pay  the  assessment, 
leaving  a  balance  to  be  collected 
otherwise,  we  should  have  the  le- 
gal anomaly — the  monstrous  injus- 
tice— of  not  onlj'  wholly  absorbing 
the  property  supposed  to  be  bene- 
fited and  rendered  more  valuable 
by  the  improvement,  but  also  of 
entailing  upon  the  owner  the  loss 
of  his  other  property.  I  greatly 
doubt  whether  the  legislature  has 
the  power  to  authorize  a  general 
charge  upon  the  owner  of  local 
property  which  may  be  assessed 
for  its  special  benefit,  unless  the 
owners  of  all  taxable  property 
within  the  municipality  are  equally 
charged.  As  to  all  property  not 
to  be  so  specially  benefited,  he 
stands  upon  the  same  footing  with 
others;  he  has  precisely  the  same 
interests,  and  should  be  subject  to 
no   greater   burdens." 

62  Chaney  v.  State.  118  Tnd.  494, 
21  N.  E.  45. 

63  Lake  Erie  &c.  R.  Co.  v.  Wal- 
ters, 13  Ind.  App.  275,  41  N.  E.  465; 
Brown    v.    Central    Bermudez    Co., 


371 


LOCAL  ASSESSMENTS 


§957 


line,  and  further  i)rovides  that,  if  the  land  is  subdivided  or  plat- 
ted, and  that  primarily  liable  is  insufficient  to  pay  the  cost  of 
the  improvement,  other  parcels  of  the  back-lying-  property  back 
to  a  specified  distance  shall  be  liable  in  their  order.  Under  such 
a  statute  it  has  been  held,  in  a  case  where  the  back-lying-  prop- 
erty was  the  right  of  way  of  a  railroad  company,  that  the  lien 
extended  to  all  of  the  property ;  all  persons  owning  property 
Avithin  the  district,  both  abutting  owners  and  owners  of  the 
back-lying  property  could  be  made  parties  to  a  suit  to  collect 
the  assessment  and  the  whole  matter  determined;  and  that  the 
C(»m])Iaint  must  show,  as  against  the  owners  of  the  back-lying 
property  as  well  as  the  abutters,  that  all  jurisdictional  steps 
were  taken. ^"^     But  it  has  also  been  held  under  the  same  statute 


162  Ind.  452,  69  N.  E.  ISO.  See 
also  Cleveland  &c.  R.  Co.  v.  Por- 
ter. 210  U.  S.  177,  28  Sup.  Ct.  647, 
52  L.  ed.  1012. 

G-i  Cleveland  &c.  R.  Co.  v.  Ed- 
ward C.  Jones  Co.,  20  Ind.  App. 
87.  90,  91,  50  N.  E.  319.  In  the 
course  of  the  opinion  it  is  said: 
"In  the  case  at  bar  the  abutting 
owners  and  those  owning  lots 
within  the  limit  of  one  hundred  and 
fifty  feet  were  joined  as  defend- 
ants, and  we  think  this  is  permis- 
sible under  the  statute.  The  stat- 
ute intends  that  if  the  abutting 
property  is  insufticient  to  pay  the 
assessment  other  property  back 
one  hundred  and  fiftj'  feet  shall 
then  be  liable.  We  see  no  reason 
for  not  determining  the  whole 
question  in  one  suit.  The  engineer, 
it  is  true,  has  no  power  to  assess, 
in  the  first  instance,  property  sec- 
ondarily liable;  nor  does  the  stat- 
ute provide  for  a  separate  assess- 
ment upon  sucii  property  by  the 
engineer  after  the  abutting  prop- 
erty has  been  exhausted.  But  from 
the  language  of  the  whole  statute 


it  must  be  held  that  it  was  the 
intention  of  the  act  to  carry  the 
balance  of  such  an  assessment  to 
such  other  property  as  lies  within 
the  limit,  and  that  without  any 
separate  assessment  being  made  on 
such  property.  The  act  itself  fixes 
a  lien  for  the  unpaid  balance  upon 
property  secondarily  liable.  If  we 
are  right  in  this  view  of  the  stat- 
ute, it  necessarily  follows  that,  in 
an  action  seeking  to  fix  a  sec- 
ondary liability  upon  such  prop- 
erty, it  must  be  made  to  appear 
that  the  municipality  took  the  stat- 
utory steps  necessary  to  fix  the  lien. 
The  waiver  signed  by  the  abutting 
property  owners  has  no  effect  in 
any  way  in  determining  the  rights 
and  liabilities  of  appellants.  With- 
out holding  to  what  extent  such  a 
waiver  would  be  conclusive  against 
the  abutting  property  owners  who 
signed  it,  it  is  evident  that  such 
waiver  can  in  no  way  affect  the 
rights  of  persons  whose  property 
is  only  secondarily  liable.  Appel- 
lants waived  no  defects,  and  the 
statute  empowers  no  one  to  waive 


§  958  RAILROADS  372 

that  a  suit  to  foreclose  the  assessment  on  the  abuttini^  j^roperty 
floes  n(jt  esto])  the  plaintiff  from  afterwards  foreclosing  the  lien 
on  the  back-lying-  property  for  the  balance  where  the  abutting 
property  fails  to  sell  for  enough  to  pay  the  assessment.*^'^  It  has 
alscj  been  held,  under  the  Indiana  statute,  tliat  an  assessment 
for  a  gross  sum  against  two  distinct  tracts  described  by  metes 
and  bounds  is  invalid,  and  that  a  condition  in  a  deed  of  land 
for  a  street  that  the  grantor  and  remaining  portion  of  the  lot 
should  not  be  liable  for  any  street  improvement  assessment  is 
ultra  vires  and  void.*"^ 

§958  (790).  Assessment  of  right  of  way — Enforcing  assess- 
ment.— While  it  is  ]:»rol)ably  true  that  there  may  be  a  lien  on 
the  right  of  way  of  a  railroad  for  a  local  assessment,  where  such 
assessment  is  authorized  by  statute,  the  manner  of  enforcing 
such  assessment  is  not  clearly  settled.  The  right  of  way  of  a 
railwav  company  is  a  part  of  the  company's  property,  without 
which  it  could  not  perform  the  duties  it  owes  to  the  public. 
To  subject  a  portion  of  the  right  of  way  to  a  sale  to  enforce  a 
local  imi^rovement  would  greatly  embarrass,  if  not  entirely  de- 
stroy, the  ability  of  the  company  to  perform  its  ])ublic  func- 
tions.''' The  rights  of  the  ]iublic  are  regarded  as  superior  to 
the   rights  of  any   individual,    or   group   of   individuals.      Local 

such   defects  for  them.     They   can  ^6  Pittsburgh  &c.  R.  Co.  v.  Ogles- 

rightfiilly  insist  that  appellee   shall  by,  165  Ind.  542,  1()  N.  E.  165. 

show    that    such    steps    were    taken  '"'^  Decatur    v.    Southern    R.    Co., 

as  result  in  a  valid  lien."  183  Ala.  531,  62  So.  855,  48  L.  R.  A. 

65  Cleveland  &c.  R.  Co.  v.  Porter,  (N.    S.)    231.    232    (quoting    text); 

38  Ind.  App.  226,  74  N.  E.  260,  76  Chicago  &c.   R.   Co.  v.   Milwaukee, 

X.    E.    179;    Dueres    v.    Burlington  89  Wis.   506,  62   N.   W.   417,  28   L. 

Sav.    Rank,    40    Ind.    App.    678,    82  R.    A.   249:    Detroit    &c.    R.    Co.   v. 

X.    E.     1020;    Voris    v.    Pittsburgh  Grand  Rapids,  106  Mich.  13,  63  N. 

Plate   Glass   Co.,    163    Ind.    599,   70  W.   1007,  28  L.  R.  A.  793,  58  Am. 

N.  E.  249.    See  also  2  Elliott  Roads  St.    466.      As    we    have    elsewhere 

h    Sts.    (3rd    ed.),   §   690:    Voris    v,  shown    the    rule    is    that    a    railroad 

Pittsburgh    &c.    Co.,    163    Ind.    559.  is  to  be  treated  as  a  unity,  and  this 

70  N.  E.  249.     It  is  also  held  in  the  rule    would    forbid    the    sale    of    a 

first   case   cited   that   an   attorney's  part,  as  a  few  hundred  feet,  or  the 

foe  ;''Tay  also  be  recovered  in  such  like,  to  pay  a  local  assessment, 
suit  under  the  statute. 


\n 


LOCAL  ASSESSMENTS 


§958 


assessments  are  usually  levied  on  a  small  portion  of  a  railway 
right  of  way.  varying"  from  a  few  feet  in  length  to  miles  in 
length.  To  permit  such  portion  to  be  sold  would  prevent  the 
operation  of  the  road,  and.  on  grounds  of  public  policy,  it  is 
held  that  the  ordinary  remedy  of  enforcing  the  collection  of  a 
local  assessment  by  a  sale  of  the  property  benefited  does  not 
appi}-  to  the  enforcement  of  an  assessment  against  the  right  of 
way  of  a  railway  compan}'.  While  there  is  a  conflict  of  authority 
on  this  subject,  the  decided  weight  is  that  the  right  of  way, 
if  sold  to  pay  the  assessment,  must  be  sold  as  a  whole,  and  not 
in    broken    fragments."^      "The    public   have   a    right   to    have   a 


68  Muller  V.  Dows,  94  U.  S.  444. 
24  L.  ed.  207:  Dano  v.  Mississippi 
&c.  R.  Co.,  27  Ark.  564;  Detroit 
&c.  R.  Co.  V.  Grand  Rapids,  116 
Mich.  13.  28  L.  R.  A.  793.  58  Am. 
St.  466;  Cox  v.  Western  Pacific  R. 
Co..  44  Cal.  18;  Cox  v.  Western 
Pac.  R.  Co.,  47  Cal.  87;  Southern 
Cal.  R.  Co.  V.  Workman,  146  Cal. 
80.  79  Pac.  586,  82  Pac.  79;  Macon 
&c.  Co.  V.  Parker,  9  Ga.  377;  In- 
dianapolis &c.  Co.  V.  State,  105 
Ind.  37,  4  N.  E.  316;  Louisville  &c. 
Co.  V.  State,  122  Ind.  443,  24  N.  E. 
350;  Midland  R.  Co.  v.  Wilcox.  122 
Ind.  84,  23  N.  E.  506;  Lake  Shore 
&c.  R.  Co.  V.  Grand  Rapids.  102 
Mich.  374,  60  N.  W.  676,  29  L.  R. 
A.  195;  Knapp  v.  St.  Louis  &c.  R. 
Co.,  74  Mo.  374;  Cranston  v.  Union 
Trust  Co.,  75  Mo.  29;  Ammant  v. 
President  &c.,  13  S.  &  R.  (Pa.) 
210:  Dunn  v.  North  &c.  Co.,  24 
Mo.  493.  "We  fully  agree  with 
appellant's  counsel  that  a  continu- 
ous line  of  railroad  is  to  be  treated 
as  an  entirety,  and  we  adjudge  that 
as  such  it  must  be  sold,  for  it 
would  be  unjust  to  lien  holders,  as 
well  as  to  the  railroad  company,  to 
sell   a   bridge,   a   culvert   or   a   few 


rods,  or  even  a  mile  of  a  railroad." 
Farmers'  &c.  Co.  v.  Canada  &c.  R. 
Co..  127  Ind.  250,  26  N.  E.  784,  11 
L.  R.  A.  740,  and  note.  "For  the 
sake  of  the  public  whatever  is  es- 
sential to  the  corporate  functions 
shall  be  retained  by  the  corpora- 
tion. The  only  remedy  which  the 
law  allows  to  creditors  against 
property  so  held  is  sequestration, 
and  that  remedy  is  consistent  with 
corporate  existence,  whilst  a  power 
to  alien,  or  liability  to  levy  and 
sale  on  execution,  would  hang  the 
existence  of  the  corporation  on  the 
caprices  of  the  managers  or  on  the 
mercy  of  its  creditors."  Plymouth 
R.  Co.  V.  Colwell,  39  Pa.  St.  337, 
80  Am.  Dec.  526.  See  also  Connor 
V.  Tennessee  Cent.  R.  Co..  10.9  Fed. 
931,  54  L.  R.  A.  687  (citing  text). 
But  in  Illinois  it  was  held  that  the 
portion  of  the  right  of  way  of  a 
railway  company  lying  within  a 
drainage  district  might  be  sold  to 
pay  the  assessment  for  construct- 
in:?  the  drain.  In  Wabash  &c.  Co. 
V.  East  Lake  Fork  District.  134  111. 
384.  10  L.  R.  A.  285,  it  is  said: 
"Again,  it  is  urged  that  the  decree 
is  erroneous  in  directing  a  sale  of 


§  ^58 


RAILROADS 


374 


railway  remain  an  entirety,  and  it  would  be  destructive  to  public 
interest  to  permit  it  to  be  broken  up  into  disjointed  and  prac- 
tically useless  fra.oments."*"'"  Even  if  it  be  conceded  that  a 
personal  judgment  for  the  amount  of  the  assessment  can  be 
rendered,'"  still   it  does  not  follow   that  a   railroad   can  be  sold 


a    portion   of   the    railroad   for   the 
satisfaction  of  the  lien.     This  prop- 
osition  was   presented   and   consid- 
ered   in    Illinois    Cent.    R.    Co.    v. 
Commissioners  of  &c.,  129  III.  417. 
25  N.  E.  781,  and  it  was  there  held 
that   an   order   for  the   sale   of  the 
track  and  right  of  way  of  the  rail- 
road   company    within    the    district 
for  the  payment  of  the  assessment 
was  proper.     We  are  still  inclined 
to     adhere     to     the     conclusion     to 
which    we    arrived    in    that    case." 
See  also   Little,  v.   Chicago,  46   111. 
App.  534;  Kansas   City  &c.  R.  Co. 
V.  Waterworks  Imp.  Dist.,  68  Ark. 
?:76.  59  S.  W.  248,  to  same  efifect. 
And   see   generally  Georgia   R.   &c. 
Co.    V.    Decatur,  'l37    Ga.    537.    7?, 
S.  E.  830,  40  L.  R.  A.  CN.  S.)  934: 
Northern  Pac.  R.  Co.  v.  Seattle,  46 
Wash.  674,  91  Pac.  244.  12  L.  R.  A. 
(N.  S.)   121. 

6»  Farmers'  &c.  Co.  v.  Canada  &c. 
Co.,  127  Ind.  250,  26  N.  E.  784,  11 
T,.   R.  A.  740,  and  note.     See  also 
the     following     authorities,     which 
declare  and  enforce  the  same  doc- 
trine:   Indiana  &c.  Co.  v.  Allen,  113 
Ind.  581,  15  N.  E.  446:  Thomas  v. 
West  Jersey  R.  Co..  101  U.  S.  71, 
25  L.  ed.  950;  East  Alabama  R.  Co. 
V.  Doc,   114  U.   S.  340,   5   Sup.   Ct. 
869,  29    L.   ed.    136;    Southern    Cal. 
R.    Co.   V.   Workman,    146    Cal.   80, 
79  Pac.  586;  Richardson  v.  Sibley, 
11   Allen  (Mass.)   65,  87  Am.  Dec. 
700:   Detroit   &c.   R.    Co.   v.   Grand 


Rapids,  106  Mich.  13,  63  N.  W. 
1007.  28  L.  R.  A.  793,  58  Am.  St. 
466;  Sweancy  v.  Kansas  City  R. 
Co.,  54  Mo.  App.  266;  Black  v. 
Delaware  &o.  Co.,  22  N.  J.  Eq.  130: 
Stewart's  Appeal,  56  Pa.  St.  413: 
Foster  v.  I'owlcr,  60  Pa.  St.  27; 
Chicago  &c.  R.  Co.  v.  Milwaukee, 
89  Wis.  506,  62  N.  W.  417,  419.  28 
L.  R.  A.  249.  The  text  is  quoted 
with  approval  in  Dobbins  v.  Colo- 
rado &c.  R.  Co.,  19  Colo.  App.  257. 
75  Pac.  156,  157,  58  Cent.  L.  J.  330, 
331. 

70  Louisville  &c.  v.  State,  122  Ind. 
443,   24    N.    E.   350;    Louisville    &c. 
Co.   V.    State,   8    Ind.   App.   Z77,   35 
N.    E.  916;    Lake   Erie   &c.   R.    Co. 
X.  P.owkcr,  9  Ind.  App.  428,  Z6  N. 
E.    864:    Lake    Shore    &c.    v.    Dun- 
kirk, 65  Hun  494,  20  N.  Y.  S.  596. 
"The  proceeding  to   enforce  a  lien 
for    an    assessment    on    account    of 
street  improvements  is  in  rem,  and 
ordinarily     no    personal     judgment 
may  be  rendered  against  the  owner 
in  such  proceedings.   The  only  rea- 
son why  a  personal  judgment  may 
become     a     proper     and     available 
remedy    in     certain    cases    of    this 
character,  where  the  proceeding  is 
against   a   railway   company  to   en- 
force a  lien  upon  its  railroad  prop- 
erty and  franchises,  is  that  it  would 
be  contrary  to  public  policy  to  de- 
cree  the   sale  of  the  specific   prop- 
erty to  which  the  lien  has  attached, 
and  as  the  lessor  might  otherwise 


375 


LOCAL  ASSESSMENTS 


§959 


in  f rag-men ts  to  satisfy  the  judgment.'^ 

§  959  (791).  Procedure. —  Tlic  matter  of  procedure  is  so  much 
a  matter  of  statutory  regulation  that  we  shall  not  attempt  to 
give  the  subject  much  consideration.  It  may  be  said  that 
direct  proof  of  the  assessment  must  be  made  and  a  county  tax 
list  is  incompetent  for  that  purpose.'-  And  where  the  statute 
so  provides  an  attorney's  fee  may  be  recovered."'  The  lien,  it 
has  been  held,  may  be  enforced  against  the  property-owner 
whether  the  work  was  completed  according  to  the  original  plans 
and  specifications  or  not,  if  it  appear  that  the  contractor  per- 
formed his  work  as  far  as  it  was  in  his  power  to  do,  or  where 
the  municipality  waived  a  strict  compliance  with  the  ordinance 
directing  the  improvement.'*  Where  the  statute  prescribes  what 
steps  shall  be  taken  in  order  to  the  existence  of  a  valid  assess- 
ment there  must  be  a  substantial  compliance  with  its  provi- 
sions. The  general  rule  is  that  where  the  statute  specifically 
provides  a  remedy  for  the  enforcement  of  the  assessment,  that 
remedy  must  be  pursued,  but  if  a  right  be  given  and  no  remedy 
prescribed  the  courts  will  usually  provide  the  appropriate  rem- 
edy.''^ 


be  left  without  any  remedy  what- 
ever, equity  will,  in  a  proper  case, 
award  such  lienor  the  right  of  col- 
lecting the  amount  due  him  by  vir- 
tue of  the  lien,  in  the  way  of  such 
personal  judgment."  Lake  Erie 
&c.  Co.  V.  Walters,  9  Ind.  684,  Z7 
N.  E.  295.  And  to  same  eflfect,  see 
Pittsburgh  &c.  R.  Co.  v.  Fish,  158 
Ind.  525,  63  N.  E.  454. 

'■I  Decatur  v.  Southern  R.  Co., 
183  Ala.  531,  62  So.  855,  48  L.  R.  A. 
(N.   S.)    231,  232   (quoting  text). 

^■2  Muscatine  v.  Chicago  &c.  Co., 
88  Iowa  291,  55  N.  W.  100. 

•3  Lake  Erie  &c.  R.  Co.  v.  Wal- 
ters, 13  Ind.  App.  275.  41  N.  E. 
465;  Cleveland  &c.  R.  Co.  v.  Por- 
ter, 38  Ind.  App.  226,  76  N.  E.  179: 
Pittsburgh  &c.  R.  Co.  v.  Taber,  168 
Ind.  419,  77  N.  E.  741. 


74  Lake  Erie  &c.  R.  Co.  v.  Wal- 
ters, 13  Ind.  App.  275,  41  N.  E. 
465.  See  also  Elliott  Roads  and 
Streets  (3d  ed.),  §§  728,  752,  et  seq. 

■^5  Dobbins  v.  Colorado  &c.  R. 
Co.,  19  Colo.  App.  257,  75  Pac.  156, 
157  (quoting  text).  As  to  the  ne- 
cessity for  notice  and  the  kind  of 
notice  that  will  suffice,  see  note  in 
28  L.  R.  A.  (N.  S.)  1201,  et  seq., 
2  Elliott  Roads  &  Sts.  (3rd  ed.), 
§§  699-702,  and  the  following  more 
recent  cases:  Pierce  v.  Huntsville, 
185  Ala.  490,  64  So.  301;  Durst  v. 
Des  Moines,  164  Iowa  82,  145  N. 
W.  528;  Embree  v.  Kansas  City 
&c.  Dist..  257  Mo.  593.  166  S.  W. 
282;  Texas  Bitulithic  Co.  v.  Abi- 
lene St.  R.  Co.  (Tex.  Civ.  App.), 
166  S.  W.  433. 


CHAPTER  XXX in 


LAND  GRANTS 


W 


Sec.  Sec. 

965.  The  ground   upon  whicli  pub- 

lic aid  to   railroads  rests. 

966.  Land  grants. 

967.  Construction  of  land  grants.         980. 

968.  Construction  of  land  grants — 

Illustrative   cases. 

969.  Effect  of  grant.  981. 

970.  Effect    of    grant  —  Illustrative 

cases.  982. 

971.  Reserved   lands. 

972.  Withdrawal— When    land    be-       983. 

comes    part    of    public    do- 
main. 

973.  Indemnity  lands.  "84. 

974.  Rules  laid   down   by   Supreme 

Court  of  United  States.  985. 

975.  Priority  of  rights. 

976.  Breach     of     condition  —  For-       986. 

feiture. 

977.  Legislative  declaration  of  for-       987. 

feiture. 

978.  Cancellation     of     grants     and 

entries.  988. 

979.  Condition    that   land    shall    re- 


vert to  L'nited  States  if  not 
disposed  of  within  a  fixed 
time. 

Staking  and  surveying  line 
does  not  conclude  the  com- 
pany. 

Aid  to  two  companies  by 
same  grant. 

Grants  by  the  government — 
Estoppel. 

Where  state  renders  perform- 
ance of  condition  impos- 
sible, grant  is  not  defeated. 

Partial  failure  to  perform  con- 
ditions. 

Notice  by  possession  —  Ad- 
verse possession. 

Injunction  on  the  application 
of  company. 

Effect  of  reservation  of  right 
to  use  railroad  as  a  high- 
way. 

Right  to  take  timber  and  ma- 
terial from  adjacent  lands. 


8  965   (792),     The  ground  upon  which  public  aid  to  railroads 

j-ests. The    jniblic    nature    of    railroads    authorizes    the    use    of 

piibhc  iiionev  or  property  in  aid  of  their  construction  and  main- 
tenance. Even  in  jurisdictions  where  the  legislature  has  no 
power  to  appropriate  luoney  or  property  to  private  individuals 
aid  mav  be  given  or  granted  to  railroad  companies  because  they 
are  not  strictlv  ])rivate  corporations.  Burdens  may  be  placed 
upon  them  because  they  are  "afifected  with  a  public  interest." 
and  for  the  same  reason  benefits  may  be  bestowed  upon  them 
that   cannot   be   rightfully   bestowed    on    strictly    private   corpo- 


376 


377  LAND    GRANTS  §  966 

rations.  The  construction  and  maintenance  of  railroads  has 
been  generally  considered  a  matter  of  public  concern,  and  the 
machinery  of  government,  local,  state,  and  national,  has  been 
liberally  employed  in  aiding  to  build  new  lines  of  road,  not  only 
between  centers  of  trade,  but  far  out  into  unsettled  portions  of 
the  country  where  the  operation  of  a  railroad  can  prove  a  profit- 
r.ble  business  only  after  settlers  have  developed  the  resources 
of  the  country.  It  will  be  found,  upon  examination  of  the  cases 
(lecided  l)y  the  federal  courts  hereafter  referred  to,  that  the 
jH)Hc\-  of  the  government  in  granting  land  to  railroad  companies 
exerts  art  important  influence  upon  the  construction  of  such 
grants,  for  the  construction  given  them  is  a  very  liberal  one, 
the  courts  assuming  that  by  making  such  grants  Congress  in- 
tended to  encourage  the  ])uilding  of  railroads. 

§966  (793).  Land  grants. — The  term  "land  grants,"  when 
used  in  the  branch  of  the  law  relating  to  railroads,  has  a  peculiar 
meaning.  It  does  not,  as  ordinarily  used,  mean  a  grant  by  an 
individual,  but  means  a  grant  by  the  nation  or  by  a  state.  Aid 
has  been  given  to  railroads  in  many  instances  by  a  direct  grant 
of  land  by  the  federal  government,  and  in  other  cases  the  grant 
is  made  to  a  state  for  the  benefit  of  the  railroad  company.  Where 
the  grant  is  made  to  the  state  for  the  benefit  of  a  company  the 
position  of  the  state  is  that  of  a  trustee  for  the  companv.^ 

§967  (794).  Construction  of  land  grants. — A  congressional 
grant  of  land  is  a  peculiar  one,  for  there  is  both  a  statute  and 

1  Rice   V.    Minnesota   &c.    R.    Co.,  nibal   &c.   R.   Co.  v.   Smith.  9  Wall. 

1  Black  (U.  S.)  358,  17  L.  ed.  147;  (U.  S.)  95,  19  L.  ed.  599:  Sclnilen- 

Kansas   City   &c.  R.    Co.  v.   Attor-  berg  v.  Harriman,  21  Wall.  (U.  S.) 

ney-General,  118  U.  S.  682,   7  Sup.  44,  22  L.   ed.  551:   Grinnell  v.   Chi- 

Ct.  66,  30  L.  ed.  281;  Leavenworth  cago  &c.  R.  Co.,  103  U.  S.  739,  26 

&c.    R.    Co.    V.    United    States,    92  L.   ed.   456:    Railroad    Land    Co.   v. 

U.  S.  733,  23  L.  ed.  634;  Litchfield  Courtright,   21    Wall.    (U.    S.)    310, 

V.  Webster  County,   101   U.  S.  773,  22  L.  ed.  582;   Miller  v.  Swann.  89 

25  L.  ed.  925;  Wolsey  v.  Chapman,  Ala.    631,    7    So.    771.      The    term 

101    v.   S.   755,  25   L.   ed.   915;   Van  "land    grants,"    as    wo    here    use    it, 

Wyck   v.    Knevals,    106    U.    S.    360,  means  grants  of  lands  by  the  fod- 

1  Sup.  Ct.  336,  27  L.  ed.  201;  Han-  eral  government  or  bj'  a  state. 


§967 


IJ  ViLROADS 


378 


a  conveyance,  so  that  the  rules  for  constrinng  conveyances  made 
by  individuals  do  not  fully  apply  to  land  .2:rants.-  A  land  grant 
has  the  effect  of  a  les"islative  enactment,  and  the  intention  of 
ihe  legislature  is  to  be  sought  and  enforced."  The  statute  mak- 
ing the  grant  abr(\gates  common-law  rules  so  far  as  they  con- 
flict with  its  provisions."*  Statutes  granting  lands  to  aid  in 
building  railroads  are  liberally  construed  in  favor  of  the  grantees, 
to  enable  them  to  carry  out  the  purposes  of  the  grant.  Thus 
a  grant  to  a  railroad  "of  every  alternate  section  of  public  land 
designated  by  odd  numbers,  to  the  amount  of  five  alternate 
sections  per  mile  on  each  side  of  said  railroad  on  the  line  there- 
of." was  held  not  to  be  limited  to  lands  situated  on  lines  at 
right  angles,  to  the  general  line  of  the  road,  where,  in  conse- 
quence of  turns  or  changes  of  direction  in  the  road,  such  a  rule 
of  selection  would  cause  an  overlapping  on  one  side,  and  leave 
a  vacancv  on  the  other.-     Rut  the  grant  to  the  Illinois  Central 


2  Missouri  &c.  R.  Co.  v.  Kansas 
Pacific  R.  Co.,  97  U.  S.  491,  24  L. 
ed.  1095;  Hall  v.  Russell,  101  U.S. 
503.  25  L.  ed.  829. 

3  Winona  &c.  R.  Co.  v.  Barney. 
113  U.  S.  618,  5  Sup.  Ct.  606,  28 
L.  ed.  1109;  United  States  v.  Den- 
ver &c.  R.  Co..  150  U.  S.  1.  14 
Sup.  Ct.  11,  2,7  L.  ed.  975;  Bradley 
v.  New  York  &c.  R.  Co..  21  Conn. 
294.  See  Brewster  v.  Kansas  City 
&c.  R.  Co.,  25  Fed.  243.  Short, 
narrow  tramway  up  mountain-side 
not  a  "railroad"  within  Act  of 
Congress  of  March  3.  1875,  grant- 
ing right  of  way  to  railroads  over 
public  lands  of  United  States.  Den- 
ver &c.  R.  Co.  v.  Bolognese,  45 
Utah  65,  143  Pac.  129. 

4  Kansas  &c.  R.  Co.  v.  Dunmeyer, 
113  U.  S.  629,  5  Sup.  Ct.  566,  28 
L.  ed.  1122;  St.  Paul  &c.  R.  Co.  v. 
Greenhalgh,  26  Fed.  563. 

5  United  States  v.  Union  Pac.  R. 
Co.,  2  Denver  Le.g.  News,  2>7  Fed. 


551,  83.  But  it  was  held  that  the 
acts  of  congress  granting  to  the 
state  of  Alabama,  in  aid  of  the 
construction  of  railroads  in  that 
state,  every  alternate  section  of 
land  designated  by  odd  numbers, 
and  within  six  miles  of  either  side 
of  the  projected  line  of  said  roads, 
does  not  embrace,  by  implication, 
land  within  six  miles  of  that  por- 
tion of  the  roads  constructed 
through  tlic  state  of  Georgia. 
Swann  v.  Jenkins,  82  Ala.  478,  2 
So.  136.  The  Joint  Resolution  of 
Congress  of  May  31,  1870,  giving 
the  Northern  Pacific  Railroad  Com- 
pany, in  the  event  of  there  not 
being  within  the  limits  prescribed 
by  its  charter  the  amount  of  lands 
per  mile  which  had  been  granted 
to  it,  the  right  to  make  up  the 
deficiency  from  sections  designated 
by  odd  numbers  within  ten  miles 
"on  each  side  of  the  said  road  be- 
vond   the   limits   prescribed    in   said 


379 


LAND   GRANTS 


§967 


Railroad  Company  of  "lands,  waters  and  materials"  necessary 
for  the  construction,  alteration  and  operation  of  its  road,  has 
been  held  not  to  include  submerged  lands  along  the  shore  of 
Lake  Michigan.'^  As  we  have  said,  land  grants  arc  usually  con- 
strued to  pass  the  land  at  once,  but  to  convey  it  upon  condition 
subsequent,  although,  of  course,  a  grant  may  be  upon  condition 
precedent.'  Whether  the  grant  is  upon  condition  precedent  or 
upon  condition  subsequent  must,  it  is  obvious,  be  determined 
from  the  language  of  the  statute  making  the  grant. ^     In  other 


charter,"  was  held  to  give  the  com- 
pany an  additional  ten-mile  indem- 
nit}'  limit,  and  not  to  restrict  it  to 
a  loss  of  land  occurring  subsequent 
to  the  grant,  nor  does  it  restrict  it 
to  the  state  or  territory  where  such 
deficiency  occurs.  Northern  Pac. 
R.  Co.  V.  United  States,  Z6  Fed. 
282.  See  as  to  grant  to  Oregon 
&  California  R.  Co.,  and  the  ques- 
tion of  forfeiture  and  rights  of  pur- 
chasers under  acts  of  Aug.  20,  1912, 
and  June  9,  1916.  Oregon  &c.  R. 
Co.  V.  United  States,  238  U.  S.  393, 
59  L.  ed.  1360,  35  Sup.  Ct.  908; 
Hammond  v.  Oregon  &c.  R.  Co. 
rOreg.),  193  Pac.  457;  Booth-Kelly 
Lumber  Co.  v.  Oregon  &c.  R.  Co. 
(Oreg.),  193  Pac.  463. 

6  Illinois  Cent.  R.  Co.  v.  Chica- 
go, 176  U.  S.  646,  20  Sup.  Ct.  509, 
44  L.  ed.  622. 

"  Chamberlain  v.  St.  Paul  &c.  R. 
Co.,  92  U.  S.  299,  23  L.  ed.  715; 
Farnsworth  v.  Minnesota  &c.  R. 
Co.,  92  U.  S.  49,  23  L.  ed.  530; 
Cedar  Rapids  &c.  R.  Co.  v.  Her- 
ring, 110  U.  S.  27,  3  Sup.  Ct.  485, 
28  L.  ed.  56:  New  Orleans  &c.  R. 
Co.  V.  United  States,  124  U.  S.  124, 
8  Sup.  Ct.  417,  31  L.  ed.  383;  United 
States  V.  Southern  Pacific  R.  Co., 
39  Fed.  132;  Shepard  v.  North- 
western Life  Ins.  Co.,  40  Fed.  341; 


Vicksburg  &c.  R.  Co.  v.  Sledge,  41 
La.  Ann.  896,  6  So.  725.  See  Buttz 
V.  Northern  Pac.  R.  Co.,  119  U.  S. 
55.  7  Sup.  Ct.  100,  30  L.  ed.  330; 
United  States  v.  Southern  Pac.  R. 
Co.,  62  Fed.  531:  St.  Paul  &c.  R. 
Co.  V.  Northern  Pacific  R.  Co.,  139 
U.  S.  1,  35  L.  ed.  77.  And  there 
may  be  covenants,  as  under  the 
provisos  in  the  Railway  Land 
Grant  Acts  of  1869  and  1870,  which 
are  enforceable  and  not  merely 
conditions  subsequent  the  breach 
of  which  is  cause  for  forfeiture. 
Oregon  &c.  R.  Co.  v.  United 
States,  238  U.  S.  393,  35  Sup.  Ct. 
908,  59  L.  ed.  1360.  See  also  Baker 
V.  Berg,  138  Minn.  109,  164  N.  W. 
588. 

s  United  States  v.  Southern  Pa- 
cific R.  Co.,  62  Fed.  531;  Rogers 
V.  Port  Huron  &c.  R.  Co.,  45  ^lich. 
460,  10  Am.  &  Eng.  R.  Cas.  635; 
State  V.  Rusk,  55  Wis.  465,  10  Am. 
&  Eng.  R.  Cas.  642.  The  grant  of 
right  of  way  to  Northern  Pacific 
R.  R.  by  act  of  Congress  of  July 
2,  1864,  was  of  a  limited  fee  on 
implied  condition  of  reverter  if  the 
grantee  or  its  successor  ceased  to 
use  or  retain  the  land  for  the  pu"- 
pose  for  which  it  was  granted. 
Crandall  v.  Goss,  30  Idaho  661,  167 
Pac.  1025. 


§  968  RAILROADS  380 

words,  the  .errant  is  usually  regarded  as  conveying  a  present 
title  but  u]K)n  condition  subsequent,  it  is  upon  this  principle 
that  it  is  held  that  ])ossession  under  the  .g'rant  for  the  statutory 
period  will  give  title  by  limitation.''  The  rule  is  that  where  a 
railway  company  fails  to  comply  with  the  provisions  of  the 
act  of  Congress  granting  the  right  of  way  to  railroads  through 
the  public  lands  of  the  United  States,  it  has  no  right  to  run 
its  road  through  the  land  of  a  homesteader  wlu)  has  comj)lied 
with  the  terms  of  the  homestead  law,  although  he  has  not  at 
the  time  received  his  patent,  as,  in  such  case,  his  claim  is  supe- 
1  ior  to   that  of  the  company.^** 

§968  (795).  Construction  of  land  grants. — Illustrative  cases. 
— Under  acts  granting  a  right  of  w'ay  over  all  government  lands 
along  certain  routes,  the  railroad  has  been  held  to  acquire  a 
right  of  w^ay  over  sections  numbered  sixteen  and  thirty-six, 
although  such  sections  have  been,  before  the  grants  were  made, 
designated  generally  as  school  sections,  but  have  not  been  defi- 
nitely disposed  of.^^  Grants  to  railroads  by  Congress  cannot 
be  construed  to  include  routes  not  contemplated  by  the  charters 
of  the  companies  at  the  time  of  the  grant. ^-  Where  the  act  of 
Congress  authorized  the  Northern  Pacific  Railroad  Company  to 
construct  a  road  from  T.ake  Superior  westerly  by  the  most 
eligible  route  within  the  United  States  north  of  45  degrees  of 
latitude,  to  Puget's  Sound.  Avith  a  branch  via  the  valley  of  the 
Columbia  river  to  Portland.  Oregon,  it  was  held  that  the  com- 
pany. u])on  finding  a  more  eligible  route,  could  follow  down  the 

^Wheeler    v.     Chicap;o,    68    Fed.  school    sections    of    tlie    public    do- 

526.  niniii,  .-\c(|uirod   by   a   railroad   coni- 

10  Savaniiali  &:c.  R.  Co.  v.  Davis,  jniny  under  an  act  of  congress  and 
25  Fla.  917.  7  So.  29,  43  .\m.  <!^  a  subsequent  territorial  statute. 
Enpf.  R.  Cas.  542.  Sec  also  Tono-  was  not  a  grant  in  jiraescnti.  but 
pah  &c.  R.  Co.  v.  Fellanbaum,  .32  in  future;  and  must  be  used  under 
Nev.  278,  107  Pac.  882,  L.  R.  A.  tlic  statute  referred  to,  if  at  all, 
1918D,  584.  before  the  sale  of  the  land  by  the 

11  Union   Pac.   R.   Co.  v.   Douglas  state.      Radke    v.    Winona    &c.    R. 
Co..   31    Veil.   540:    Coleman    v.    St.  Co.,  39  Minn.  262,  39  N.  W.  624. 
Paul  &c.  R.  Co..  38  Minn.  260.   The  i-' jackson   v.   Dines,  13   Colo.  90, 
grant   of   a   right   of   way   over   the  21    Pac.  918. 


381  LAND   GRANTS  §  968 

Columbia  river  to  and  past  Portland,  cross  over  and  go  north 
to  Puget's  Sound,  thereby  dispensing  with  its  l)ranch  to  Port- 
land.^'" And  \vhcre  the  title  of  the  Indians  and  their  right  o( 
occupation  of  certain  lands  in  Michigan  had  been  fully  extin- 
guished, they  were  held  to  pass  under  the  Act  of  C\)ngress  of 
June  3,  1856.  notwithstanding  they  were  held  by  the  United 
States  in  trust  to  sell  them  for  the  benefit  of  the  Indians.^*  To 
the  extent  of  such  claims,  when  the  grant  was  for  lands  with 
specific  boimdaries,  or  known  by  a  particular  name,  and  also 
to  the  extent  of  the  quantity  named  within  boundaries  contain- 
ing a  greater  area,  Mexican  claims  are  excluded  from  a  grant 
to  a  railroad  company. ^^'  And  lands  "claimed  to  be  included  in 
a  Mexican  grant  of  a  specihc  boundary,  which  grant  was  sub 
judice  at  the  time  of  the  grant  of  March  3,  1871,  were  not  public 
land  at  that  date,  and  did  not  pass  by  the  grant,  though  they 
were  after\var(ls  held  not  to  be  embraced  by  the  Mexican 
grant. "^^  But  a  railroad  land  grant  embracing  within  its  bound- 
aries Mexican  floating  grants  takes  etTect  except  as  to  the  quan- 
tity of  land  granted  in  the  Mexican  grant;  and  the  railroad 
company  is  entitled  to  patents  for  the  odd  sections  of  the 
remainder.^'  Where  lands  had  been  granted  to  the  state  to 
aid  in  building  railroads  under  certain  restrictions,  the  legis- 
lature was  held,  in  a  Michigan  case,  to  have  authority  to  accept 
a   surrender  of  the  grant   and   to  regrant   the  lands  to  another 

13  United  States  v.  Northern  Pac.  as  to  a   floating  Mexican   grant,  to 

R.  Co.,  41   Fed.  842.     At  all  events  the    extent  of   the   lands    embraced 

the  resolution  of  congress  of  May  by  it.     United   States  v.   McLaugh- 

31.    1870.   recognized   and  approved  lin.    30    Fed.     147.    construing    the 

this     location.       United     States     v.  Central  Pacific  R.  Land  Grant  with 

Northern  Pac.  R.  Co.,  41  Fed.  842.  reference  to  its  fraudulent  Mosque- 

^•*  Shepard   v.   Northwestern    Life  lamous     grant;     LTnited     States     v. 

Ins.  Co.,  40  Fed.  341.  ^IcLaughlin,   127  U.  S.  428,  8  Sup. 

I'^Doolan  v.   Carr,  125  U.  S.  618.  Ct.    1177,    32    L.    ed.    213:    Carr    v. 

8  Sup.  Ct.  1228,  31  L.  ed.  844;  Foss  Quiglcy.   79    Cal.    130,   21    Pac.  607. 

v.  Hinkell,  78  Cal.  158.  20  Pac.  393.  construing    the    Western    Pac.    R. 

16  United  States  v.  Southern  Pac.  Land    Grant    with    reference    to    a 

R.     Co..    39    Fed.     132.     construing  valid   Mexican  grant. 
Southern     Pac.     R.     Land     Grants:  i"  State  v.   AIcLaughlin,   127  U.  S. 

Southern  Pacific  R.  Co.  v.  Brown.  428.  8  Sup.   Ct.  1177.  32  L.  ed.  213: 

68  Fed.  333.     And  the  same  is  true  United  States  v.  Curtner,  38  Fed.  1. 


§  968  KAILROADS  382 

icnnpany ;  and  a  transfer  of  the  lands,  which  was  in  form  a  sale 
to  another  company  of  the  lands  granted,  upon  condition  that 
it  would  complete  the  first  company's  road,  made  by  authority 
of  the  legislature,  was  construed  to  be  such  a  surrender  and 
regrant."*  But  where  there  is  no  authority  to  execute  a  cer- 
tificate of  surrender,  the  certificate  is  ineffective,  and  the  filing 
of  it  in  the  general  land  ofiice  does  not  transfer  title  to  the 
United  States. ^^  The  courts  will  not  presume  that  the  officers 
of  the  land  department  erred  in  carr}ing  out  the  provisions  of 
such  an  act.  but  will  uphold  their  acts  done  in  pursuance  of 
the  construction  which  the}'  have  given  it,  unless  a  very  clear 
case  of  error  is  presented  ;  especially  where  the  actions  of  the 
officers  have  l)een  acquiesced  in  until  the  lands  have  in  large 
part  been  sold  by  the  company.-"  The  ruling  in  the  cases  de- 
cided by  the  Supreme  Court  of  the  United  States  is  that  where 
the  grant  is  to  be  satisfied  out  of  sections  along  the  line  of  the 
road  the  implication,  in  the  absence  of  a  specific  designation 
or  of  some  provision  to  the  contrary,  is  that  the  grant  conveys 
the  land  in  sections  of  the  character  specified  nearest  the  line 
of  the  road,  but,  of  course,  does  not  convey  lands  previously 
disposed  of.-^  \\^hcre  there  is  a  conflict  between  two  compa- 
nies, both  claiming,  under  the  same  grant,  they  take  in  undi- 
vided moieties.--     AVhere  the  grant  expressly  reserves  from  its 

IS  Jackson  &c.  R.  Co.  v.  Davison,  land     which,     at     the     time     of    its 

65  rylich.  416,  32  N.  W.  726.  grants,    was    within     the     e.xterior 

1°  Lake    Superior    &c.    R.    Co.    v.  limits    of    a    Mexican    or    Spanisli 

Cunningham,  155  U.  S.  354,  15  Sup.  grant  then  sub  judice,  is  void  from 

Ct.    103,   39    L.    ed.    183.      In    Lake  the  beginning.     Foss  v.  Hinkell.  78 

Superior  &c.   R.    Co.  v.   Finan,   155  Cal.  158. 

U.  S.  385,  15  Sup.  Ct.  115,  39  L.  ed.  21  Wood  v.  Burlington  &c.  R.  Co., 

194,  it  was  held  that  an  entry  upon  104  U.  S.  329,  26  L.  ed.  772;  Ryan 

land    granted    to    a    railroad    com-  v.  Central  &c.  R.  Co.,  99  V.  S.  382, 

pany   gave   no    title   to   person    en-  25  L.  ed.  305. 

tering,    and    the    case    was    distin-  --  .St.  Paul  &c.  R.  Co.  v.  Winona 

guished  from  the  first  of  the  cases  &c.    R.   Co.,    112  U.    S.   720,   5   Sup. 

cited  in  this  note.  Ct.  334,  28  L.  ed.  872.     See  gener- 

20  United  States  v.  Union  Pac.  R.  ally  Piatt  v.  Union  Pacific  R.  Co., 

Co.,  37  Fed.  551;   United  States  v.  99  U.  S.  48,  25  L.  ed.  424;  Wood 

.Missouri    &c.    R.    Co.,  37   Fed.   68.  v.  Burlington  &c.  R.  Co.,  104  U.  S. 

A  patent  to  the  S.  P.   R.  Co.,  for  329,  26  L.  ed.  772;  St.  Louis  &c.  R. 


ys3 


LAND    GRANTS 


§969 


Operation  all  lands  tn  which  the  right  of  preemption  or  home- 
stead settlement  is  attached  when  the  line  is  fixed,  the  land 
commissioner  is  without  power  on  his  own  motion,  prior  to  the 
location  of  the  line,  to  withdraw  any  of  such  lands  from  pre- 
emption or  homestead  settlement.-^ 

§969  (796).  Effect  of  grant. — AA'here  a  giant  of  land  to  a 
railroad  company  becomes  effective  it  relates  back  to  the  time 
of  the  enactment  of  the  statute.-*  The  general  rule  as  to  the 
time  such  grants  become  eft'ective  is  that  they  take  effect  when 
the  road  is  located  and  the  sections  thereby  identified  ;-"'  that  is. 
they  are  usually  grants  in  praesenti,  which,  when  maps  of 
definite  location  are  filed  and  approved,  take  effect  by  relation 
as  of  the  .date  of  the  act.'-''  It  is  generally  held  that  Congress, 
by  a  grant  of  land  to  a  railroad  to  aid  in  its  construction,  con- 
fers a  present  title  to  the  designated  sections  along  its  route, 
with  such  restrictions  uiK)n  their  use  and  disposal  as  to  secure 
them  •  for    the   purposes    of   the   grant,    subject   to    be   defeated. 


Co.  V.  McGee,  115  U.  S.  469.  6  Sup. 
Ct.  123,  29  L.  cd.  446;  Bullard  v. 
Des  Moines  &c.  R.  Co..  122  U.  S. 
167,  7  Sup.  Ct.  1149,  30  L.  ed.  1123; 
United  State?  v.  Union  Pacific  R. 
Co..  37  Fed.  551;  Farmers'  &c.  Co. 
V.  Chicago  &c.  R.  Co..  39  Fed.  143; 
Southern  Pacific  R.  Co.  v.  Esquibel, 
4  New  Mex.  ZZ7,  20  Pac.  109;  Ver- 
dier  v.  Port  Royal  &c.  R.  Co..  15 
S.  Car.  476;  Sams  v.  Port  Roj-al 
&c.  R.  Co.,  15  S.  Car.  484;  Eldred 
V.  Sexton.  30  Wis.  193;  Post.  §  981. 

23  Missouri,  K.  &  T.  R.  Co.  v. 
Watson  (Kans.).  87  Pac.  687;  Wi- 
nona &c.  Co.  V.  BarneJ^  113  U.  S. 
618.  5  Sup.  Ct.  606,  28  L.  ed.  1109; 
\'an  Wyck  v.  Knevals.  106  U.  S. 
360.  1  Sup.  Ct.  2,^6,  27  L.  ed.  201; 
Railroad  Co.  v.  Baldwin.  103  U.  S. 
426,  26  L.  ed.  578. 

-*  Schulenberg  v.  Ha'rriman.  21 
Wall.    (U.    S.)    44,   22    L.    ed.   551: 


Broder  a".  Xatoma  Water  Works 
Co..  101  U.  S.  274,  25  L.  ed.  790: 
St.  Paul  &c.  Co.  V.  Winona  &c. 
Co..  112  U.  S.  720,  5  Sup.  Ct.  334. 
28  L.  ed.  872. 

25  St.  Paul  &c.  R.  Co.  V.  North- 
ern Pacific  R.  Co..  139  U.  S.  1.  11 
Sup.  Ct.  389,  35  L.  ed.  77:  United 
States  V.  Southern  Pacific  R.  Co.. 
146  U.  S.  570,  13  Sup.  Ct.  152,  36 
L.  ed.  1091:  Northern  Pacific  R. 
Co.  V.  Musser  &c.  Co.,  68  Fed.  993. 

20  Southern  Pac.  R.  Co.  v.  Lip- 
man,  148  CaL  445,  83  Pac.  445: 
Walbridge  v.  Board,  74  Kans.  341. 
86  Pac.  47.3;  Wiese  v.  Union  Pac. 
R.  Co.,  77  Nebr.  40,  108  N.  W.  175: 
United  States  v.  Southern  Pac.  R. 
Co.,  146  U.  S.  570,  13  Sup.  Ct.  152. 
Z6  L.  ed.  1091.  See  also  Taggart 
V.  Great  No.  Ry.  Co.,  211  Fed.  288. 
"The  grant  made  by  the  United 
States  by  Act  July  25,  1866,  c.  242, 


J^  06!) 


RAILROADS 


384 


however,  on  non-compliance  with  the  terms  of  the  grant.'-'  In 
other  words,  the  grant  is  regarded  as  immediately  conveying 
title,  but  conveying  it  upon  condition  subsequent.     It  is  upon 


14  Stat.  239,  to  aid  in  the  con- 
struction of  a  railroad  and  tele- 
graph line,  from  the  Central  Pa- 
cific Railroad  Company  in  Califor- 
nia to  Portland  in  Oregon,  of 
'every  alternate  section  of  public 
land,  not  mineral.'  within  20  miles 
on  each  side  of  said  railroad  line, 
with  a  provision  for  selection  of 
lands  in  lieu  of  any  of  those  within 
^uch  primary  limits,  which  should 
be  found  to  liave  been  occupied  by 
homestead  or  pre-emption  settlers 
or  in  any  manner  disposed  of 
within  10  miles  beyond  such  lim- 
its, was  a  grant  in  praesenti,  and 
did  not  end)racc  land  which  was 
at  the  time  of  the  passage  of  the 
act  subject  to  a  live  homestead 
entry,  although  such  entry  was  re- 
linquished prior  to  the  filing  of  the 
map  of  definite  location  and  survey 
of  any  part  of  its  road  by  the  rail- 
road company;  such  land  not  hav- 
ing been  'public  land,'  within  the 
meaning  of  the  grant."  United 
States  V.  Oregon  &c.  R.  Co.,  143 
Fed.  765.  The  Act  Cong.  July  26, 
1866,  granting  to  the  Union  Pacific 
Railroad  Company  a  right  of  way 
through  the  Osage  ceded  lands, 
was  an  absolute  grant  in  praesenti 
vesting  title  from  the  date  of  the 
act,  and  persons  subsequently  pur- 
chasing any  of  the  land  did  so  with 
notice  of  the  railroad  company's 
rights.  Missouri  &c.  R.  Co.  v. 
Watson  (Kans.),  87  Pac.  687.  The 
grant  to  the  Northern  Pacific  Ry. 
Co.  took  effect  as  upon  the  date  on 
which    it    filed    its    map    of    definite 


location  and  it  had  no  vested  in- 
terest before  that  time.  Sander  v. 
Bull,  76  Wash.  1.  135  Pac.  489. 

-"  Wisconsin  C.  R.  Co.  v.  Price 
County.  133  U.  S.  496.  10  Sup.  Ct. 
341.  33  L.  ed.  687,  41  Am.  &  Eng. 
R.  Cas.  669;  California  &c.  Land 
Co.  V.  -Munz,  29  Fed.  837;  South- 
ern Pac.  R.  Co.  V.  Orton,  32  Fed. 
457;  United  States  v.  Curtner,  38 
Fed.  1 ;  United  States  v.  Northern 
Pac.  R.  Co.,  41  Fed.  842;  Washing- 
ton &c.  R.  Co.  V.  Northern  Pac.  R. 
Co.,  2  Idaho  513,  21  Pac.  658;  Jack- 
son &c.  R.  Co.  V.  Davison,  65 
Mich.  416,  32  N.  W.  726;  Coleman 
V.  St.  Paul  &c.  R..  Co.,  38'  Minn. 
260,  36  X.  W.  638;  United  States 
V.  Northern  Pac.  R.  Co.,  6  Mont. 
351,  12  Pac.  769.  Among  the  many 
cases  holding  the  grant  to  be  in 
praesenti  maj-  l)c  cited  in  addition 
to  those  alreadi'  cited  the  follow- 
ing: Summers  v.  Dickinson,  9  Cal. 
554;  Fremont  v.  United  States,  17 
How.  (U.  S.)  542,  15  L.  ed.  241; 
Hall  V.  Russell,  101  U.  S.  503,  25 
L.  ed.  829;  Southern  Pac.  R.  Co. 
V.  Lipman.  148  Cal.  445,  83  Pac. 
445;  Lee  v.  Summers,  2  Ore.  260; 
Pdakesly  v.  Caywood,  4  Ore.  279. 
The  words  "shall  be  and  are  here- 
by granted,"  are  held  to  always 
import  a  grant  in  praesenti.  Wright 
V.  Roseberry,  121  U.  S.  488,  7  Sup. 
Ct.  985,  30  L.  ed.  1039;  Martin  v. 
Marks.  97  U.  S.  345,  24  L.  ed.  940; 
Hannibal  &c.  R.  Co.  v.  Smith,  9 
Wall.  (U.  S.)  95,  19  L.  ed.  599; 
Winona  &c.  R.  Co.  v.  Barney.  113 
U.  S.  618,  5  Sup.  Ct.  606,  28  L.  ed. 


885  LAND   GRANTS  §  969 

this  ])rinci]ile  that  it  has  Ijeen  held  that  no  one  but  the  grantor 
can  take  advantage  of  a  breach  ol  the  condition.-*^  Under  the 
various  acts  l:)y  which  such  grants  have  l')een  made,  the  title 
has  l)een  held  in  most  instances  to  vest  in  the  railroad  when 
a  map  of  the  proposed  route  has  been  duly  filed  ;-^  but  the  fding 
of  the  map  does  not  preclude  a  change  of  route  where  the  rights 
of  third  persons  ha\e  not  intervened.'^"  No  notice  of  the  filing 
of  such  a  ma])  or  of  the  Axithdrawal  from  entry  of  the  lands 
granted  need  he  gi\en  by  the  United  States  officers  in  order 
to  vest  the  title  in  the  railroad  company,  unless  the  act  specially 
requires  it.'^  The  secretary  of  the  interior  has  no  authority 
to  suspend  or  modify  a  statute  withdrawing  lands  from  pre- 
emption, and  any  orders  he  may  make  as  to  lands  within  the 
limits  of  the  grant  \\ill  not  afifect  the  rights  of  the  railroad 
company.'^-  Idie  rule  is  that  all  claims  wdiich  subsequently 
attach,   either  by   homestead   or  preemption,  or  claims  of  right 

1109.     That  it  can  not  be  alienated  selected.     The  sale  by  the  railroad 

by    the    company    for    other    pur-  of  any  specific  parcels  of  lands  not 

poses,  see   H.  A.   &  L.  D.   Holland  exceedins?  the  quantity  earned,  and 

Co.    v.    Northern    Pac.    R.    Co.,   215  lying  within  tlie  limits   specified   in 

Fed.  970.  the  grant,  would,  to  that  extent,  be 

-s  Wheeler    v,    Chicago.    68    Fed.  nn  effectual  selection.     Jackson  &c. 

526.  R,    Co.    V.    Davison,    65    Mich.   416, 

2«  United    States   v.    :\lcLaughlin.  32   N.  W.   726:    Shepard   v.    North- 

30  Fed.  147;  Southern  Pac.  R.  Co.  western  Life  Ins.  Co.,  40  Fed.  341. 
V,    Poole,    32    Fed.    451:    Southern  ^o  \Yas]iij-,g|-o]i     &c.     R.     Co.     v. 

Pac.  R.  Co.  V.  Orton,  32  Fed.  457;  Coeur    D'Alene    &c.    Co..    60    Fed. 

United   States   v.    Curtner.   38   Fed.  981. 

1;    Sioux    City    &c.    Co.    v.    Griffej^  •'^i  The  neglect  of  the  secretary  of 

72   Iowa   505,  34  N.  W.  304;  Wal-  the  interior  to  file  a  map  furnished 

bridge  v.   Board,   76    Kans:   341,   86  by  a  railroad  company  showing  the 

Pac.  473;  Coleman  v.  St.   Paul  &c.  route    of   its    road    can    not    impair 

R.  Co..  38  J\Iinn.  260.  36  N.  W.  638.  the  company's  rights.   United  States 

That   the   title   does   not   vest   until  v.    Northern    Pac.    R.    Co..   41    Fed. 

the  profile  is  approved  by  the  sec-  842. 

retary  of  the  interior,  see  Phoenix  ^'-  Northern  Pac.  R.  Co.  v.  Orton, 

&c.   R.  Co.  V.  Arizona    Eastern   R.  32  Fed.  457.     See  also   Howard   v. 

Co.,  9  Ariz.  434,  84  Pac.  1097.     But  Perrin.   200   U.   S.   71,   26    Sup.    Ct, 

in  some  cases  the  right  of  the  rail-  195.  50  L.  ed.  374;  Sjoli  v.  Dreschel, 

road  company  to  lands  is  suspend-  199  U.   S.  564.  26  Sup.   Ct.   154,  50 

ed    until    a    certain    portion    of   the  L.  ed.  311. 
road    is    built    and    the    lands    are 


^  !)6f) 


RAILROADS 


386 


of  \va}'  hy  other  roads  uiuler  g^rants  sul)sequently  made  by  the 
Pfovernment.  are  ineffective  as  atjainst  a  railroad  company  hold- 
ing an  effective  grant. ^^  It  is  not  necessary  that  a  patent  should 
be  issued  to  the  company.-'*  since  the  effect  of  a  patent  to  lands 
granted  by  such  an  act  is  not  to  vest  title  to  them,  but  to  afford 
record  evidence  thereof. ''•  By  operation  of  the  act  itself,  the 
conditions  ha\ing  l)een  fully  complied  with  as  to  a  portion  of 
the  road,  the  railroad  com])any's  title  to  lands  given  along  that 
portion  becomes  perfect  and  indefeasible.^''  The  general  rule 
is  that,  until  a  survey  and  definite  location  of  the  road  have 
been  made,  and  a  ma])  of  the  proposed  route  has  been  filed,  the 
railroad  acquires  no  rights  adverse  to  those  of  others  taking 
claims  under  general  laws."'" 


s'  Southern  Pac.  R.  Co.  v.  Orton, 
Zl  Feci.  457;  United  States  v.  Curt- 
ner,  38  Fed.  1 ;  United  States  v. 
Northern  Pac.  R.  Co..  41  Fed.  842: 
Washington  &c.  R.  Co.  v.  North- 
ern Pac.  R.  Co.,  2  Idaho  513.  21 
Pac.  658.  See  also  Wiese  v.  Union 
Pac.  R.  Co.,  n  Nebr.  40.  108  N.  W. 
175. 

^*  Whitehead  v.  Plummer,  76  Io- 
wa 181,  40  N.  W.  709;  :\Iinnesota 
&c.  Co.  V.  Davis,  40  Minn.  455.  42 
N.  W.  299.  The  failure  to  pay  the 
expense  of  surveying  as  required 
by  the  act  of  congress  only  pre- 
vents the  issue  of  the  patent.  It 
does  not  prevent  the  title  attaching 
under  the  congressional  grant. 
Francoeur  v.  Newhouse.  40  Fed. 
618:  40  Am.  &  Eng.  R.  Cas.  439. 

3^' Pengra  v.  AFunz,  29  Fed.  830; 
California  &c.  Co.  v.  Munz,  29  Fed. 
837.  The  title  which  vests  under 
the  congressional  grant  of  lands 
to  the  Central  Pacific  Railroad 
Company,  and  the  performance  of 
the  prescribed  conditions,  is  a  legal 
title,  and  an  action  of  ejectment 
may  be   maintained   upon   it  before 


the  patent  issues.  Francoeur  v. 
Newhouse,  40  Fed.  618;  40  Am.  & 
Fng.  R.  Cas.  439. 

36  United  States  v.  Northern  Pa- 
cific R.  Co.,  41  Fed.  842.  Under  an 
act  of  congress  granting  the  odd- 
numbered  sections  for  a  prescribed 
width  on  each  side  of  a  railroad, 
with  a  right  of  selection,  when  the 
line  of  road  should  be  definitely 
fixed,  to  make  up  any  deficiencies 
tlie  title  to  specific  lands  between 
the  two  limits  does  not  vest  until 
selection  and  approval.  Musser  v. 
McRae,  38  Minn.  409,  38  N.  W. 
103;  Filing  v.  Thexton,  7  Mont. 
330,  16  Pac.  931. 

"^  Sioux  City  &c.  Co.  v.  Griffey. 
12  Iowa  505,  34  N.  W.  304;  Weeks 
V.  Bridgman.  41  Minn.  352.  43  N. 
W.  81;  Larsen  v.  Oregon  R.  &c. 
Co..  19  Ore.  240,  23  Pac.  974,  44 
\m.  &  Eng.  R.  Cas.  92.  See  South- 
ern Pac.  R.  Co.  v.  Orton.  32  Fed. 
457,  in  which  it  is  held  that  where 
lands  had  been  set  apart  by  act  of 
congress  to  aid  in  the  construction 
"f  a  railroad,  and  unconditionally 
witlidrawn     from    pre-emption,    no 


387 


LAND    GRANTS 


§970 


§970  (797).  Effect  of  grant — Illustrative  cases. — It  has  been 
held  that  where  the  condition  of  the  grant  is  that  two  roads 
shall  be  built,  the  grant  is  not  fully  efifective,  unless  the  two 
roads  are  built,  and  that  it  is  not  satisfied  by  the  building  of 
one."^  If  the  state  holds  lands  as  a  trustee  for  a  railroad  com- 
pany. Congress  can,  at  any  time  before  the  execution  of  the 
trust,  annul  the  j^ower  of  the  state  by  repealing  the  statute."^ 
The  state  may  impose  conditions'"'  upon  its  own  grant,  but  if 
it  does  not  impose  conditions  the  grantee  company  will  take 
all  the  title  the  state  could  convey.*^  A  patent  from  the  state 
conveys  wdiatever  title  was  vested  in  the  state  by  the  Act  of 
Congress,  but  it  does  not  prove  that  the  state  had  title,^-  and 
we  suppose  the  same  rule  must  apply  to  a  land  grant  by  the 
state.  The  efl:'ect  of  a  grant  of  a  right  of  way  over  the  public 
lands  is  to  confer  upon  the  railroad  company  a  right  to  con- 
struct and  oi)erate  a  railroad  upon  lands  not  previously  pre- 
empted or  in  some  other  mode  disposed  of  by  the  government.-*-^ 
Where   the   grant   provided    that   the   company   should    take   on 


pre-emption  riglit  could  be  acciuired 
in  them  even  if  the  grantee  at  the 
time  of  an  attempted  pre-emption 
was  not  authorized  to  take  title. 
After  settlement  on  public  lands 
and  properhr  filing  of  the  home- 
stead claim,  it  ceases  to  be  public 
land  through  which  a  railroad  can 
acquire  the  right  of  way  by  com- 
pljnng  with  the  act  of  congress  of 
March  3.  1875.  Larsen  v.  Oregon 
R.  &c.  Co.,  19  Ore.  240,  22,  Pac. 
974,  44  Am.  &  Eng.  R.  Cas.  92. 
But  actual  construction  of  the  road 
has  been  held  a  definite  location 
although  no  profiile  map  has  been 
filed.  Jamestown  &c.  R.  Co.  v. 
Jones,  177  U.  S.  125.  20  Sup.  Ct. 
568,  44  L.  ed.  698:  Johnson  v.  Spo- 
kane International  R.  Co.,  25  Idaho 
389,  137  Pac.  894.  See  also  North- 
ern Pac.  R.  Co.  V.  Barlow,  26  N. 
Dak.  159,  143  N.  W.  903;  Van  Dyke 


v.  Arizona  Eastern  R.  Co..  248  U. 
S.  49,  39  Sup.  Ct.  29,  63  L.  ed.  119. 

3s  Brewster  v.  Kansas  City  &c. 
R.   Co.,  25  Fed.  243. 

39  Rice  V.  Minnesota  &c.  R.  Co., 
1  Black  (U.  S.)  358.  But  see  Nash 
V.  Sullivan,  29  Minn.  206,  12  N.  W. 
698,  10  Am.  &  Eng.  R.  Cas.  552. 

*o  Rogers  v.  Port  Huron  &c.  R. 
Co.,  45  Mich.  460,  10  Am.  &  Eng. 
R.  Cas.  635:  State  v.  Rusk,  55  Wis. 
465,  13  N.  W.  452.  10  Am.  &  Eng. 
R.  Cas.  642. 

41  Railroad  Land  Co.  v.  Court- 
right,  21  Wall.  (U.  S.)  310,  22  L. 
ed.  582;  Miller  v.  Iowa  &c.  Co.,  56 
Iowa  374,  9  N.  W.  316,  3  Am.  & 
Eng.  R.  Cas.  27. 

42  Musser  v.  McRae,  38  Minn. 
409.  38  N.  W.  103. 

■13  St.  Joseph  &c.  R.  Co.  v.  Bald- 
win, 103  U.  S.  426,  26  L.  ed.  578, 
2   Am.    &    Eng.    R.    Cas.    510:    Mis- 


^  971 


RAILROADS 


388 


the  line  of  the  road,  and  in  ecjnal  (|uantitit'S  on  each  side  thereof, 
it  was  held  that  the  company  could  not  take  more  land  on  the 
one  side  of  the  rt)ad  than  on  the  other."'"'  Where  lands  are 
granted  l^y  a  joint  resolution  of  Congress,  and  its  effect  made 
contingent  upon  the  favorable  action  of  the  President  thereon, 
the  resolution  becomes  effective  as  a  land  grant  upon  the  issuing 
of  an  order  declaring  the  executive  judgment  and  setting  apart 
the  land."'-^ 

§971  (798).  Reserved  lands. — A  grant  of  lands  by  the  fed- 
eral Congress  does  not  o])erate  upon  lands  theretofore  reserved. '*'' 
Lands   \vithdra\vn    from    sale   are   reserved."*'      It   follows    from 


soiiri  &c.  R.  Co.  V.  Kansas  &c.  R. 
Co.,  97  U.  S.  491,  24  L.  ed.  1095; 
Tuttle  V.  Chicago  &c.  R.  Co.,  61 
Minn.  190.  63  N.  W.  618.  See  Ore- 
gon &c.  R.  Co.  V.  United  States. 
67  Fed.  650:  Flint  &c.  R.  Co.  v. 
Gordon,  41  Mich.  420.  2  X.  W.  648; 
Simonson  v.  Thompson.  25  Minn. 
450;  Wilkinson  v.  Northern  Pa- 
cific R.  Co.,  5  Mont.  538.  6  Pac. 
349,  10  Am.  &  Eng.  R.  Cas.  320; 
Rider  v.  Burlington  &c.  R.  Co..  14 
Nebr.  120,  15  N.  W.  371.  10  Am. 
&  Eng.  R.  Cas.  688. 

•*■*  United  States  v.  Burlington 
&c.  R.  Co.,  98  U.  S.  334.  25  L.  ed. 
198.  See  Necr  v.  Williams,  27 
Kans.  1,  10  Am.  &  Eng.  R.  Cas. 
561;  Brown  v.  Carson.  16  Ore.  388, 
19  Pac.  66,  21  Pac.  47.  As  to  the 
right  of  way  acquired  over  public 
domain  under  acts  of  Congress 
authorizing  the  same,  see  Union 
Pac.  R.  Co.  V.  Snow.  231  U.  S. 
204,  34  Sup.  Ct.  104;  Taggart  v. 
Great  No.  R.  Co..  208  Fed.  455: 
United  States  v.  Chicago  &c.  R. 
Co.,  207  Fed.  164. 

*•''  Republican  &c.  Co.  v.  Kansas 
Pacific  R.  Co.,  12  Kans.  409. 


•*•'  Kansas  &c.  R.  Co.  v.  .A.tchison 
&c.  R.  Co.,  112'U.  S.  414,  5  Sup. 
Ct.  208.  28  L.  ed.  794;  United  States 
V.  McLaughlin,  127  U.  S.  428,  8 
Sup.  Ct.  1177,  32  L.  ed.  213;  Wis- 
consin &c.  R.  Co.  V.  Price  County, 
133  U.  S.  496,  10  Sup.  Ct.  341,  33 
L.  ed.  687:  United  States  v.  Mis- 
souri &c.  R.  Co..  141  U.  S.  358,  12 
Sup.  Ct.  13.  35  L.  ed.  766;  North- 
ern Pacific  R.  Co.  V.  Musser  &c. 
Co.,  68  Fed.  993.  See  United  States 
V.  Northern  Pacific  R.  Co.,  152  U. 
S.  284,  14  Sup.  Ct.  598,  38  L.  ed. 
443;  McTntyre  v.  Roeschlaub,  37 
Fed.  556;  Oregon  &c.  R.  Co.  v. 
United  States,  67  Fed.  650.  See 
also  Oregon  &c.  R.  Co.  v.  United 
States.  190  U.  S.  186,  23  Sup.  Ct.' 
673.  47  L.  ed.  1012;  Little  Rock  &c. 
R.  Co.  V.  Greer,  77  Ark.  387,  96 
S.  W.  129. 

•*"  Wisconsin  &c.  R.  Co.  v.  For- 
sythe,  159  U.  S.  46.  15  Sup.  Ct. 
1020,  40  L.  ed.  71.  See  Kansas 
City  &c.  R.  Co.  V.  .\ttorney-Gen- 
cral.  118  U.  S.  682,  7  Sup.  Ct.  66, 
.^0  L.  cd.  281;  Johnson  v.  Towsley, 
13  Wail.  (U.  S.)  72,  20  L.  ed.  485: 
Shcpley  v.  Cowan,  91  U.  S.  330.  23 


889 


LAND    GRAKTS 


§971 


these  settled  rules  that  where  lands  are  reserved  they  do  not 
vest  in  a  railroad  company  receiving  a  grant.  Until  the  road 
is  located  or  the  route  determined,  the  grant  is  "in  the  nature 
of  a  float"';  "the  title  does  not  attach  to  any  specific  sections" 
until  they  are  capable  of  identification,  but  "when  once  identified 
the  title  attaches  to  them  as  of  the  date  of  the  grant."  •*-  Where 
there  is  a  grant  to  a  railroad  company  of  land  the  efifect  of  the 
grant  to  the  extent  and  purposes  thereof  is  to  withdraw  the 
land  granted  from  the  operation  of  a  prior  act  of  reservation. 
A\'hen  the  land  is  so  v.ithdrawn  the  efifect  of  the  withdrawal, 
?o  far  as  concerns  the  property  and  rights  withdrawn,  is  to 
re-establish  the  dominion  of  the  state  or  territory.*^  So,  lands 
valuable  chiefly  for  granite  quarries  have  been  held  to  be  "min- 
eral lands"  within  the  reservation  or  exception  of  mineral  lands 
in  the  grant  to  the  Northern  Pacific  Railroad  Company. ^° 


L.  ed.  424:  Doolan  v.  Carr,  125 
U.  S.  618,  8  Sup.  Ct.  1228,  31  L.  ed. 
844:  United  States  v.  ^Missouri  &c. 
R.  Co..  141  U.  S.  358.  12  Sup.  Ct. 
13,  35  L.  ed.  766;  Oakes  v.  flyers 
68    Fed.   807. 

4SSt.  Paul  &c.  R.  Co.  v.  North- 
ern Pacific  R.  Co.,  139  U.  S.  1,  11 
Sup.  Ct.  389,  35  L.  ed.  11:  United 
States  v.  Southern  Pacific  R.  Co., 
146  U.  S.  570,  13  Sup.  Ct.  152.  36 
L.  ed.  1091:  Scluilenberg  v.  Harri- 
man,  21  Wall.  (U.  S.)  44.  22  L.  ed. 
551;  Leavenworth  &c.  R.  Co.  v. 
United  States,  92  U.  S.  Til.  i:^  I.. 
ed.  634:  Railroad  Co.  v.  Baldwin, 
103  U.  S.  426,  26  L.  ed.  578;  Wol- 
cott  v.  Des  ^Moines  Co..  5  Wall. 
(U.  S.)  681.  18  L.  ed.  689;  Dubuque 
&c.  R.  Co.  V.  Litchfield,  23  How. 
(U.  S.)  66,  16  L.  ed.  500;  Northern 
Pacific  R.  Co.  V.  Musser  &c.  Co. 
68  Fed.  993;  Southern  &c.  R.  Co. 
V    Groeck,  68  Fed.  609. 

*9  Maricopa  &c.  R.  Co.  v.  .Ari- 
zona  Ter.,    156   U.   S.  347,    15    Sup. 


Ct.  391,  39  L.  ed.  447,  citing  Utah 
&c.  R.  Co.  V.  Fisher,  116  U.  S.  28, 
6  Sup.  Ct.  246,  29  L.  ed.  542:  Hark- 
ness  V.  Hyde,  98  U.  S.  476,  25  L. 
ed.  237.  See  generally  Wolcott  v. 
Des  Moines  Co..  5  Wall.  (U.  S.) 
681,  18  L.  ed.  689;  Riley  v.  Welles, 
154  U.  S.  578,  14  Sup.  Ct.  1166.  See 
Hamblin  v.  Western  Land  Co.,  147 
U.  S.  531,  13  Sup.  Ct.  353,  Z7  L.  ed. 
267.  After  the  contract  between 
the  United  States  and  the  state 
segregating  lands  under  the  act  of 
August  1894,  as  amended  June  11, 
1896,  such  lands  were  reserved 
from  sale  by  the  L'nited  States  and 
were  not  public  lands  within  the 
act  of  Congress  of  March  3,  1875, 
granting  right  of  way  nor  subject 
to  location  thereunder.  Oregon 
Short  Line  R.  Co.  v.  Williams,  30 
Idaho  715,   168  Pac.   14. 

50  Northern  Pac.  R.  Co.  v.  Soder- 
berg,  188  U.  S.  526,  23  Sup.  Ct.  365, 
47  L.  ed.  575.  See  also  Burke  v. 
Southern    Pac.    R.    Co.,    234    U.    S. 


5;  072  KAILKOADS  390 

§972  (798a).  Withdrawal — When  land  becomes  part  of  pub- 
lic domain. —  In  a  recent  case  the  (|uesti()n  arose  as  to  whether 
land  which  was  within  the  hues  desiy:nate(l  by  the  accepted 
map  of  the  general  route  of  the  Lake  Superior  and  Mississippi 
Railroad  Company,  and  after  the  withdrawal  by  the  land  de- 
partment of  the  lands  covered  by  such  map  for  the  benefit  of 
such  conipan}-.  was  public  land  within  a  subsequent  grant  of 
"pul)Iic  land"  to  the  Xorthern  Pacific  Railroad  Company,  and 
as  to  whether  such  grant  attached  to  it  when  the  Northern 
Pacific  Railroad  Company  was  definitely  located  thereafter.  The 
court  held  that  such  land  was  not  "public  land"  within  the 
meaning  of  such  later  grant,  and  did  not  pass  under  it  wdien 
it  was  sul)sequently  ascertained  that  the  land  was  without  the 
line  of  the  definite  location  of  the  Lake  Superior  and  Mississippi 
Railroad,  and  was  within  the  place  limits  of  the  Northern 
Pacific  Railroad,  as  defined  by  its  map  of  definite  location,  but, 
wdien  freed  from  the  earlier  grant,  became  a  part  of  the  public 
domain,  subject  only  to  be  disposed  of  under  the  general  land 
laws.''  It  was  also  held,  in  the  same  case,  that  an  order  of 
the   land   department   to   suspend   from    preemption,   settlement 

669,  34  Sup.  Ct.  907,  58  L.  ed.  1527.  113  V.  S.  629,  5  Sup.  Ct.  566,  28 
Lands  within  the  twenty-mile  limit  b.  cd.  1122;  United  States  v.  South- 
of  the  Rrant  to  the  Texas  Pacific  crn  Pac.  R.  Co.,  146  U.  S.  570,  13 
Railroad  Company  are  also  held  Sup.  Ct.  152,  36  L.  cd.  1091;  Whit- 
excepted  from  the  grant  to  the  ney  v.  Taylor,  158  U.  S.  85,  15 
Southern  Pacific  Railroad  Com-  Sup.  Ct.  796,  39  L.  ed.  906;  Spencer 
pany  and  can  not  be  selected  by  v.  McDougal,  159  U.  S.  65.  15  Sup. 
it  as  indemnity  lands.  Southern  Ct.  1026,  40  L.  cd.  77:  Northern 
Pac.  R.  Co.  V.  United  States,  189  Pac.  R.  Co.  v.  Musser  Sauntry 
U.  S.  447,  23  Sup.  Ct.  567,  47  L.  ed.  Land  &c.  Co.  168  U.  S.  604,  18 
896.  Sup.  Ct.  205,  42  L.  ed.  596,  and 
•■"•i  Northern  Lumber  Co.  v.  Northern  Pac.  R.  Co.  v.  De  Lacey, 
O'Brien.  204  U.  S.  190,  27  Sup.  Ct.  174  U.  S.  622,  19  Sup.  Ct.  791,  43 
249,51  L.  cd.  438.  The  court  cited  L.  cd.  1111:  and  distinguished 
St.  Paul  &c.  R.  Co.  V.  Northern  United  States  v.  Oregon  &c.  R. 
Pac.  R.  Co.  139  U.  S.  1,  5.  11  Sup.  Co.,  176  U.  S.  28,  20  Sup.  Ct.  261, 
Ct.  389,  390,  35  L.  cd.  77;  Bardon  44  L.  cd.  358,  and  Wilcox  v.  East- 
V.  Northern  Pac.  R.  Co.,  145  U.  S.  ern  Oregon  Land  Co..  176  U.  S. 
535,  12  Sup.  Ct.  856,  36  L.  ed.  806;  51,  20  Sup.  269,  44  L.  cd.  368,  say- 
Kansas    &c.    R.    Co.   V.    Dunmeyer,  ing    as    to    these    last    two    cases: 


391 


LAND   GRANTS 


§973 


and   sale,  a   "l)ocly   of   land   alK)ut   twenty   miles   in   width"  was 
.'■ufficiently  definite  under  the  circumstances  of  the  case. 

§973  (799).  Indemnity  lands. — In  order  to  secure  to  the 
company  the  quantity  of  land  granted  to  it  and  prevent  a  defi- 
ciency by  reason  of  some  of  the  land  being  preempted  or  taken 
up,  it  is  usually  provided  that  the  company  may  take  lands 
from  other  parts  of  the  ]:)ublic  domain.  The  loss  of  land  cov- 
ered by  the  grant  is  made  good  to  the  company  where  the 
land  is  taken  up  as  homesteads  out  of  the  lands  designated  in 
the  statute.  As  appears  from  what  has  been  elsewhere  said, 
and  from  the  authorities  referred  to.  the  government  is  careful 
to  encourage  and  protect  the  settlers  who  preempt  land,  and 
also  to  preserve  the  rights  of  the  railroad  under  the  grant,  so 
that  a  liberal  construction  is  given  to  the  statutes  providing 
indemnity  lands. •'^-  While  it  is  well  settled  that  what  are  called 
''place  lands"  pass  in  praesenti,  there  is  conflict  upon  the  ques- 


"The  principal  point  decided  in 
those  cases  was  that  nothing  in  the 
act  of  1864  prevented  Congress  by 
legislation  from  appropriating  for 
the  benefit  of  other  railroad  cor- 
porations lands  that  might  be  or 
were  embraced  within  the  general 
route  of  the  Northern  Pacific  Rail- 
road; and  this  for  the  reason  that 
an  accepted  map  of  general  ronte 
only  gave  the  company  filing  it  an 
inchoate  right,  and  did  not  pass 
title  to  specific  sections  until  they 
were  identified  by  a  definite  loca- 
tion of  the  road.  Besides,  in 
neither  case  was  there  in  force,  at 
the  date  of  the  later  grant,  an  ac- 
cepted eflfective  order  of  the  Land 
Department  withdrawing  the  lands 
there  in  dispute  pursuant  to  an 
accepted  map  of  the  general  route 
of  the  Northern  Pacific  Railroad. 
If  there  had  been  an  order  of  that 
kind,  it  would  still  have  been  com- 


petent for  Congress  to  dispose  of 
the  lands  within  such  general  route, 
as  it  saw  proper,  at  any  time  prior 
to  the  definite  location  of  the  road 
under  the  later  grant.  In  conform- 
ity with  prior  decisions  it  was  so 
adjudged  in  the  two  cases  above 
cited.  Those  cases  did  not  ad- 
judge that  a  grant  of  'public  land," 
with  the  usual  reservations,  em- 
braced any  lands  which,  at  the 
time,  were  formally  withdrawn  by 
the  Land  Departinent  from  pre- 
emption, settlement,  or  sale,  for 
the  benefit  of  a  prior  grant." 

^-  Kansas  &c.  R.  Co.  v.  Atchison 
&c.  R.  Co.,  112  U.  S.  414.  5  Sup.  Ct. 
208,  28  L.  ed.  794:  Wisconsin  Cen- 
tral R.  Co.  V.  Price  Count}-,  133 
U.  S.  496,  10  Sup.  Ct.  341,  33  L.  ed. 
687;  Barney  v.  Winona  &c.  R.  Co., 
117  U.  S.  228,  6  Sup.  Ct.  654,  29 
L.  ed.  858;  Southern  Pacific  &c. 
R.   Co.  V.  Tillev,  41    Fed.  729. 


§  974  RAILROADS  of)2 

tion  w  lu'tlicT  indemnity  lands  ]iass  in  praesenti/^'-'  "The  ordinary 
rule  with  resi)ect  to  indemnity  lands  is  that  no  title  passes  until 
alter  selection.""''  I'ut  as  between  two  cuni])anies  claiming 
under  jrrants  it  is  not  necessary,  in  order  to  L;i\e  priority  to 
the  comi)any  claimin.^-  under  the  earlier  grant,  that  there  should 
have  been   a   formal   selection. '''^ 

§974  (799a).  Rules  laid  down  by  Supreme  Court  of  United 
States. —  L'i)on  this  general  snl)ject  the  following  rules  have 
])een  laid  down  by  the  Supreme  Court  of  the  United  States 
in  a  recent  case:  "That  the  railroad  comi)any  will  not  acquire 
a  vested  interest  in  particular  lands,  within  or  without  place 
limits,  merely  b}-  filing  a  ma])  of  general  route  and  having  the 
same  a|)pro\ed  by  the  Secretary  of  the  Interior,  althotigh,  upon 
the  definite  location  of  its  line  of  road,  and  the  filing  and  accept- 
ance of  a  map  thereof  in  the  office  of  the  Commissioner  of  the 
General  Land  Office  tlie  lands  Avithin  primary  or  place  limits 
not  theretofore  reserved,  sold,  granted,  or  otherwise  disposed 
of.  and  free  from  preemption  or  other  claims  or  rights,  become 
segregated  from  the  ])ul)lic  domain,  and  no  rights  in  such  place 
lands  will  attach  in  favor  of  a  settler  or  occupant  who  becomes 
such  after  definite  location  ;  that  no  rights  to  lands  within  in- 
demnity limits  will  attach  in  favor  of  the  railroad  company 
until  after  selections  made  by  it  with  the  approval  of  the  Sec- 
retary  of  the    Interior;   that   up   to   the   time   such   approval   is 

^^  Railroad    Co.   v.    Barnes,   2    N.  ous     opinion,     dissented,     and     we 

Dak.   310.    51    N.   W.   386.      But   in  think    liis     opinion     expresses    the 

Grandin  v.   l.a   Bar.  3  N.   Dak.  447.  law. 

57  N.  W.  241.  a  different  doctrine  •'''■*  United  States  v.  Colfm  .Mar- 
was  declared.  The  court  in  the  hie  &c.  Co.  146  U.  S.  613.  13  Sup. 
latter  case  discussed  the  decisions  Ct.  163,  36  L.  ed.  1104;  United 
in  Railroad  Co.  v.  Wiggs,  43  Fed.  States  v.  Soutliern  Pac.  R.  Co.,  146 
333;  St.  Paul  &c.  R.  Co.  v.  North-  U.  S.  570.  13  Sup.  Ct.  152.  36  T..  ed. 
ern  Pacific   R.  Co..  139  U.  S.  1,   11  1091. 

Sup.  Ct.  389,  35  U.  ed.  77.  and  held  ■^^'  St.  Paul  &c.  R.  Co.  v.  North- 
that  they  did  not  decide  that  in-  ern  Pacific  R.  Co.,  139  U.  S.  1.  11 
denmity  lands  passed  in  praesenti.  Sup.  Ct.  389,  35  L.  ed.  77.  See 
In  the  case  of  Railroad  Co.  v.  Smith  v.  Northern  Pacific  R.  Co., 
Barnes.  2  N.  Dak.  310.  51  N.  W.  58  Fed.  513. 
386.   C.  J.  Corliss,  in  a  very  vigor- 


893  LAND    GRANTS  §  975 

given,  lands  within  indemnity  limits,  although  embraced  by  the 
company's  list  of  selections,  are  subject  to  he  disposed  of  by 
the  L'nited  States,  or  to  be  settled  upon  and  occupied  under 
the  preemption  and  homestead  laws  of  the  L'nited  States;  and 
that  the  Secretary  of  the  Interior  has  no  authority  to  withdraw 
fr( m  sale  or  settlement  lands  that  are  within  indemnity  limits 
which  ha\e  not  Ijeen  ]:)reviousl}-  selected,  with  his  approval,  to 
supply  deficiencies  within  the  ])lace  limits  of  the  company's 
road."-^'" 

§975  (800).  Priority  of  rights. — If  there  are  two  conflicting 
grants  the  hrst  in  point  of  time  usually  has  priority.''^"  If  the 
com])any  having  the  priority  of  right  locates  its  road,  files  the 
proper  map,  and  the  map  is  approved  by  the  Secretary  of  the 
Interior,  its  rights  are  vested  subject  to  be  divested  if  conditions 
subsequent  are   not  performed.     If  a  forfeiture  is  declared  be- 

•-«  Sjoli  V.  Dreschel,  199  U.  S.  564.  U.  S.  27.  3  Sup.  Ct.  485.  28  L.  ed. 

26  Sup.  Ct.  154,  155,  50  L.  ed.  311,  56;  Grinnell  v.  Chicago  &c.  R.  Co., 

citing  Hewitt  v.  Schultz,  180  U.  S.  103   U.  S.  739,  26  L.  ed.  456:   Kan- 

139,  21   Sup.  Ct.  309,  45  L.  ed.  463:  sas   P.   R.   Co.  v.   Atchison   &c.   R. 

Nelson  v.  Northern  P.  R.  Co..  188  Co..   112  U.  S.  414,  5  Sup.   Ct.  208, 

U.  S.  109,  23  Sup.  Ct.  302,  47  L.  ed.  28    L.   ed.    794:    Wilcox   v.    Eastern 

406:   United  States  v.  Northern   P.  Oregon  Land  Co..  176  U.  S.  51.  20 

R.  Co.,  152  U.  S.  284,  296,  14  Sup.  Sup.    Ct.   269,   44   L.   ed.   368.     See 

Ct.  598,  38  L.  ed.  443.  448:   North-  also  Oregon   &c.  R.   Co.  v.   United 

ern  P.  R.  Co.  v.  Sanders.  166  U.  S.  States.    190  U.   S.   186.  23   Sap.    Ct. 

620,   634,   635,    17  .Sup.    Ct.   671,   41  673,    47    L.    ed.    1012:    Doughty    v. 

L.   ed.   1139,    1144:    Menotti    v.   Dil-  Minneapolis  &c.  R.  Co.,  15  N.  Dak. 

Ion.  167  U.  S.  703.  17  Sup.  Ct.  945,  290,   107  N.  W.  971.     Compare   Ba- 

42  L.  ed.  333:  United  States  v.  Ore-  ker    v.    Berg,    138    Minn.    109,    164 

gon   &c.   R.   Co.,   176  U.   S.   28,   20  N.  W.  588. 

Sup.  Ct.  261,  42,  44  L.  ed.  358,  364:  "United  States  v.  Southern  Pa- 

St.  Paul  &c.  R.  Co.  V.  Northern  P.  cific  R.  Co.,  146  U.  S.  570,  13  Sup. 

R.  Co.,  139  U.  S.   1.  5,  11  Sup.  Ct.  Ct.  152,  36  L.  ed.  1091.     But  com- 

389,  35   L.  ed.   77,  79:   St.   Paul   &c.  pare  Southern  Pac.  R.  Co.  v.  Bov- 

R.   Co.  V.   Winona   &c.    R.   Co.,   112  ard   (Cal.),  87  Pac.   203.     See  as  to 

U.   S.   720,   726,   5    Sup.    Ct.    334,   28  priority  between  railroad  grant  and 

L.  ed.  872,  874:  Missouri  &c.  R.  Co.  homestead  entry.  Taggart  v.  Great 

V.  Kansas  P.  R.  Co..  97  U.  S.  491.  No.  Ry.  Co.,  211  Fed.  288:  St.  Louis 

501.    24    L.    ed.    1095,    1098,    Cedar  &c.   R.   Co.  v.    Budd.   112  Ark.   105, 

Rapids  &c.  R.  Co.  v.  Herring,   110  165  S.  W.  265. 


$976 


RAILROADS 


;394 


cause  of  a  l)reach  of  conditions  the  land  reverts  to  the  United 
States,  and  does  not  pass  to  the  company  having  a  grant  junior 
to  the  company  which  secured  the  prior  right. "'**  In  a  case  where 
rival  claimants  for  the  same  right  of  way  filed  profiles  co\ering 
the  same  right  of  way  at  about  the  same  time,  it  was  held  the 
duty  of  the  Secretary  oi  the  Interior  to  determine  from  the 
facts  which  company  had  the  superior  right  to  have  its  profile 
api)roved."''^ 

§976  (801).  Breach  of  condition — Forfeiture. — 1'he  railroad 
company  ma\'.  of  course,  lose  the  beneiit  of  a  grant  by  failure 
to  perform  the  conditions  imposed  upon  it.  Init  in  order  to  con- 
stitute a  forfeiture  action  must  he  taken  l)y  the  government.*"' 
It  is  held  that  when  a  grant  has  once  vested  it  can  only  be 
defeated  by  breach  of  conditions,  and  divestiture  of  title  there- 
upon  by   proper   proceedings  on   ])ehalf  of  the  United   States.®^ 


58  United  States  v.  Southern  Pa- 
cific R.  Co.,  146  U.  S.  570.  13  Sup. 
Ct.  152,  36  L.  ed.  1091;  United 
States  V.  Northern  Pacific  R.  Co., 
152  U.  S.  284,  14  Sup.  Ct.  598,  38 
U.  ed.  443,  57  Am.  &  Eng.  R.  Cas. 
362;  Sioux  City  &c.  R.  Co.  v.  Coun- 
tryman, 159  U.  S.  377,  16  Sup.  Ct. 
28,  40  L.  ed.  187.  See  Chicago  &c. 
R.  Co.  V.  United  States.  159  U.  S. 
372,  16  Sup.  Ct.  26,  40  L.  ed.  185; 
Sioux  City  &c.  R.  Co.  v.  United 
States,  159  U.  S.  349,  16  Sup.  Ct. 
17.  40  L.  ed.  177. 

•'■•»  Phoenix  &c.  R.  Co.  v.  .Xrizona 
Eastern  R.  Co.,  9  Ariz.  434,  84  Pac. 
1097. 

^°  Bybee  v.  Oregon  &c.  R.  Co.. 
139  U.  S.  663,  11  Sup.  Ct.  641,  35 
L.  ed.  305;  Union  Pac.  R.  Co.  v. 
Snow,  231  U.  S.  204,  34  Sup.  Ct. 
104,  58  L.  ed.  184.  See  also  Utah 
&c.  R.  Co.  V.  Utah  &c.  R.  Co..  110 
Fed.  879. 

61  United  States  v.  Curtner,  38 
Fed.    1.      If    the    company   conveys 


an}'  of  the  lands  before  construct- 
ing its  road,  and  the  grant  is  sub- 
sequently revoked  for  a  failure  to 
comply  with  the  conditions  subse- 
quent upon  which  it  was  made,  the 
title  of  the  company's  grantees  will 
fail.  Shepard  v.  Northern  Life  Ins. 
Co.,  40  Fed.  341;  Southern  Pac.  R. 
Co.  v.  Esquibel,  4  N.  Mex.  337,  20 
Pac.  109.  It  has  been  held  that 
sales  made  in  excess  of  the  amount 
earned  by  a  railroad  company  which 
is  entitled,  by  the  terms  of  the 
grant,  to  a  certain  quantity  of  land 
upon  the  completion  of  a  stated 
number  of  miles  of  its  road,  are 
absolutely  void,  even  though  the 
road  afterwards  earns  the  lands 
sold.  Jackson  &c.  R.  Co.  v.  Da- 
vison, 65  Mich.  416.  32  N.  W.  726; 
Swann  v.  Miller,  82  Ala.  530,  1  So. 
65.  See  Lake  Superior  &c.  Co.  v. 
Cunningham,  44  Fed.  587;  Grinnell 
V.  Chicago  &c.  R.  Co..  103  U.  S. 
739,  26  L.  ed.  456.  In  Bybee  v. 
Oregon  &c.  R.  Co.,   139  U.  S.  663, 


395  LAND    GRANTS  §  976 

Init,  while  a  judicial  proceeding'  is  the  usual  and  appropriate 
one,  it  has  been  held  that  a  forfeiture  may  be  declared  by 
Congress.  A  third  person  will  not  be  heard  to  C[uestion  the 
title  of  the  corporation  on  the  ground  that  it  had  no  authority 
to  take  the  land,  for  this  is  a  question  between  the  government 
and  the  corporation."-  Where  a  statute  assumes  to  convey  the 
title  to  lands  adjoining  the  right  of  way  of  a  railroad,  its  efifect 
in  passing  the  title  to  "particular  tracts  cannot  be  questioned  by 
a  third  person.*'"  In  Louisiana  it  was  held  that  the  United 
States  government  is  the  only  claimant  that  can  dispute  the 
validity  of  rights  to  such  lands  acquired  with  the  sanction  and 
authority  of  the  state  legislature,  and  that  parties  who  have 
acquired  title  through  a  sale  under  a  mortgage  a.uthorized  by 
the  legislature  have  the  legal  title  to  the  lands,  as  against  a 
party  claiming  no  title  except  by  possession,  and  who  went  on 
the   land,   expecting  it  to   be   thrown    open   to   public   sale   and 

11  Sup.  Ct.  641.  35  L.  ed.  305;  American  &c.  Christian  Union  v. 
Sioux  City  &c.  R.  Co.  v.  Country-  Yount.  101  U.  S.  352.  361.  25  L.  ed. 
man.  159  U.  S.  Zll ,  16  Sup.  Ct.  28,  888.  See  Cole  &c.  Mining  Co.  v. 
40  L.  ed.  187;  St.  Paul  &c.  R.  Co.  Virginia  &c.  Co.,  1  Savvy.  (U.  S.) 
v.  St.  Paul  &c.  R.  Co.,  68  Fed.  2,  478;  Rutland  &c.  Railroad  Co.  v. 
the  court  distinguished  the  cases  Proctor,  29  Vt.  93;  Bissell  v.  Mich- 
of  Union  Hotel  Co.  v.  Hersee,  79  igan  &c.  R.  Co..  22  N.  Y.  258;  Na- 
N.  Y.  454.  35  Am.  Rep.  536;  Farn-  toma  &c.  Mining  Co.  v.  Clarkin,  14 
ham  V.  Benedict.  107  N.  Y.  159.  13  Cal.  544:  ^lissouri  &c.  R.  Co.  v. 
N.  E.  784;  Brooklyn  &c.  Co.  v.  Watson,  74  Kans.  494.  87  Pac.  687; 
Brooklyn,  78  N.  Y.  524,  holding  Van  Wyck  v.  Knevals,  106  U.  S. 
that  the  legislative  act  did  not  360.  1  Sup.  Ct.  ZZd,  27  L.  ed.  201; 
avoid  the  grant  by  forfeiture  upon  United  States  v.  Loughrey.  71  Fed. 
the  non-perforniance  of  the  condi-  921;  Chicago  &c.  R.  Co.  v.  Grin- 
tions,  but  because  the  corporate  nell.  51  Iowa  476,  1  N.  \V.  712; 
existence  had  expired.  Chicago  &c.  R.  Co.  v.  Lewis,  53 
^-  Schulenberg  v.  Harriman.  21  Iowa  101,  4  N.  W.  842;  Johnson  v. 
Wall.  (U.  S.)  44.  22  L.  ed.  551;  Thornton.  54  Iowa  144,  6  N.  W. 
United  States  v.  De  Repentigny.  5  65;  Northern  Pacific  R.  Co.  v.  Ma- 
Wall.  fU.  S.)  211,  268,  18  L.  ed.  jors.  5  Mont.  111.  2  Pac.  322. 
(^11  \  Southern  Pac.  R.  Co.  v.  Or-  "^^  ;\fi,-,,-|et;Q^ji  Land  &c.  Co.  v.  Da- 
ton,  32  Fed.  457;  Kennett  v.  Plum-  vis.  40  :Minn.  455.  42  N.  W.  299. 
mcr,  28  AIo.  142;  Cowell  v.  Springs  See  Vicksburg  &c.  R.  Co.  v.  Sledge, 
Co..    100  U.   S.   55,   25   L.    ed.   547;  41   La.  Ann.  896.  6  So.  725. 


^  977  RAILROADS  ')!*6 

entry/'*  All  tin-  cases  agree,  however,  that  the  state  has  no 
power  to  sanctit)n  any  disposition  of  the  lands  which  will  tend 
to  defeat  or  to  render  impossible  the  performance  of  conditions 
upon   which   the  grant  was  made  by  Congress/-"' 

§977  (802).  Legislative  declaration  of  forfeiture. — It  is  held 
!)y  the  Sui)reme  Court  of  the  United  States  that,  where  the 
statute  containing  the  grant  provides  for  a  forfeiture  within  a 
specified  time,  the  legislature  may  efifectively  declare  a  forfeiture, 
and  that  it  is  not  necessary  to  obtain  a  (leclaratit)n  of  forfeiture 
l)v  judicial  proceedings.®*'  It  is  said  that  where  the  declaration 
is  made  in-  (^ingress  it  must  be  "direct,  positive,  and  free  from 
all  doubt  and  .aml)iguity. '■'■'■  It  is.  of  course,  competent  for  the 
legislature  to  avert  a  forfeiture  l)y  dispensing  with  ])erf()rmance 
of  the  conditions."^ 

§978  (803).  Cancellation  of  grants  and  entries. — The  can- 
cellation of  a  homestead  entry  after  a  subseciuent  grant  to  a 
railro.-id  and  the  definite  location  of  its  line  of  road  does  not 
inure  to  the  benefit  of  the  railroad  company,  but  the  land  reverts 
to  the  government,  and  becomes  a  part  of  the  domain,  subject 
to  appro])riation  by   the   hrst   legal   ai)plicant.''''     The   voluntary 

64  Vicksburg  &c.  R.  Co.  v.  Sledge,  "^  United  States  v.  Denver  &c.  R. 

41  La.  Ann.  896,  6  So.  725.  Co.,  150  U.  S.  1.  14  Sup.  Ct.  11.  2>7 

"•"--Miller   v.    Svvann,   89   Ala.   631,  L.  ed.  975. 
7    So.    771:    Vicksburg    &c.    R.    Co.  eo  Hastings  &  Des  Moines  R.  Co. 

V.   Sledge,   41    La.   Ann.  896,  6   So.  v.  Whitney,  132  U.  S.  357.  363.   10 

725;   Jackson   &c.    R.    Co.   v.    Davi-  Sup.  Ct.  112,  2,2,  L.  ed.  363,  40  Am. 

son.  65  Mich.  416.  32  N.  E.  726.  &  Eng.  R.  Cas.  426.     A  homestead 

66  Farnsworth  v.  Minnesota  &c.  entry  made  before  the  definite  lo- 
R.  Co.,  92  U.  S.  49,  22  L.  ed.  530;  cation  of  a  railroad,  but  volun- 
Bybee  v.  Oregon  &c.  R.  Co.,  139  tarily  abandoned  before  location, 
U.  S.  663,  11  Sup.  Ct.  641.  35  L.  ed.  although  the  filing  was  not  can- 
305;  United  States  v.  De  Repen-  celed  until  after  the  location,  will 
tigny.  5  Wall.  (U.  S.)  211,  267,  18  not  except  the  land  from  the  grant 
L.  ed.  627;  McMicken  v.  United  to  the  company,  under  an  act  of 
States,  97  U.  S.  204,  24  L.  ed.  947;  congress  donating  lands  to  aid 
.•\tlantic  &c.  R.  Co.  v.  Mingus,  7  in  the  construction  of  railroads. 
N.  Mex.  360,  34  Pac.  592.  Young   v.    Goss,   42    Kans.    502.   22 

67  St.  Louis  &c.  R.  Co.  V.  Mc-  Pac.  572,  40  Am.  &  Eng.  R.  Cas. 
Gee.  115  U.  S.  469,  473.  6  Sup.  Ct.  435. 

123,  29  L.  ed.  446. 


897  LAND    GRANTS  §  978 

filing  of  an  amended  preemption  claim  operates  as  a  cancella- 
tion of  a  previous  claim  or  entry,  although  there  is  no  formal 
record  of  cancellation.""  The  federal  courts  will  entertain  a 
suit  by  the  United  States  to  cancel  patents  erroneously  issued 
by  its  officers  in  derogation  of  rights  previously  acquired  by 
homestead  of  preemption,  or  otherwise  under  existing  laws.'^ 
A  bona  fide  purchaser  of  lands  conveyed  to  a  railroad  company 
by  patent,  but  which  were  in  fact  not  included  in  the  grant, 
may  successfully  defend  against  a  suit  to  cancel  the  patent,  but 
not  where  he  is  not  a  bona  fide  purchaser,  because  the  lands 
were  already  occupied  under  a  recorded  preemption  claim/^ 
Where  a  preemption  claim  was  filed  but  canceled  because  the 
claimant  had  not  lived  on  the  land,  the  land  was  held  to  be 
exempted  from  the  grant."-'  A  company,  by  laches,  may  lose 
its  right  to  have  a  patent  canceled. '^'^ 

""  Amacker    v.   Northern    Pac.   R.  gens    v.    O'Connor,    191    U.    S.   237, 

Co.,   58    Fed.   850.     See    Bardon    v.  24  Sup.  Ct.  94,  48  L.  ed.  163;  Knep- 

Northern    Pac.    Railroad    Co.,    145  per    v.    Sands,    194    U.    S.    476.    24 

U.  S.  535,  12  Sup.  Ct.  856,  M  L.  ed.  Sup.  Ct.  744,  48  L.  ed.  1083;  United 

806;   Hastings   &c.  Railroad   Co.  v.  States  v.  Southern  Pac.  R.  Co.,  117 

Whitney,  132  U.  S.  357,  10  Sup.  Ct.  Fed.   544.      See   also   United   States 

112,  2>i  L.  ed.  Z62>;  Kansas  Pac.  R.  v.  Southern  Pac.  R.  Co.,  184  U.  S. 

Co.  V.  Dunmeyer,  113  U.  S.  629,  5  49,  22  Sup.  Ct.  285,  46  L.  ed.  425; 

Sup.  Ct.  566,  28  L.  ed.  1122;  Galli-  Clark  v.  Herington.   186  U.  S.  206, 

her   V.    Cadwell,   145   U.   S.   368,   12  22  Sup.  Ct.  872,  46  L.  ed.  1128. 

Sup.    Ct.   873,   36   L.   ed.    738.      See  ^s  Whitney  v.   Taylor,    158   U.   S. 

Northern  Pacific  R.  Co.  v.  De  Lacy,  85,   15   Sup.   Ct.  796,  39  L.  ed.  906, 

66  Fed.  450.  citing  Bardon  v.  Northern  Pac.  R. 

71  United   States  v.   Missouri   &c.  Co.,  145  U.  S.  535,  12  Sup.  Ct.  856, 

R.  Co.,  141  U.   S.  358,  12  Sup.   Ct.  36  L.  ed.  806;   Newhall  v.   Sanger, 

13.  35  L.  ed.  766,  reversing  2,7  Fed.  92  U.  S.  761,  23   L.  ed.  769;   Hast- 

68.     See  also  Southern  Pac.  R.  Co.  ings    &c.    R.    Co.    v.    Whitney,    132 

V.  United  States,  200  U.  S.  341,  26  U.  S.  357,  10  Sup.  Ct.  112,  ZZ  L.  ed. 

Sup.  Ct.  296,  SO  L.  ed.  507.  363.     See  Wood  v.  Beach,  156  U.  S. 

'-'United    States    v.    Winona    &c.  548,  15  Sup.  Ct.  410,  39  L.  ed.  528. 

R.    Co.,    67    Fed.    969,    affirmed    in  "*  Curtner  v.    United    States,    149 

Winona  &c.  R.  Co.  v.  United  States,  U.  S.  662,  13  Sup.  Ct.  985,  2,7  L.  ed. 

165  U.   S.  483,   17  Sup.   Ct.  381.  41  890;    Sage   v.   Winona    &c.    R.    Co.. 

L.    ed.    798;    United    States    v.    Wi-  "58   Fed.  297;   Southern   &c.    R.   Co. 

nona  &c.  R.  Co.,  165  U.S.  463,  17  v.  St.  Paul  &c.  R.  Co.,  55  Fed.  690. 
Sup.   Ct.  368,  41   L.  ed.  789;   Gert- 


§  979  RAILROADS  398 

§979  (803a).  Condition  that  land  shall  revert  to  United 
States  if  not  disposed  of  within  a  fixed  time. — Under  a  condition 
in  the  land  i,n-ant  to  the  Union  Pacific  Railroad  that  lands  not 
sold  or  disposed  of  before  the  expiration  of  three  years  after 
the  completion  of  the  road  shonld  be  snbject  to  settlement  and 
preemption  like  other  lands,  it  has  been  held  that  lands  covered 
by  a  mortgage  executed  i)\  tlie  railroad  company  were  to  be 
regarded  as  disposed  of  within  the  meaning  of  the  condition, 
and  hence  were  not  subject  to  settlement  or  preemption  at  the 
expiration  of  three  years  from  the  completion  of  the  road.  The 
mortgage  amounted  to  a  hy])()thecation  of  the  fee,  and  not 
merely  an  estate  terminable  at  the  expiration  of  the  three  years 
mentioned  in  the  grant.'"'  It  is  not  the  law  that  settlers  can 
take  possession  of  such  lands  after  the  failure  of  the  railroad 
company  to  comply  with  the  condition  and  l)efore  the  govern- 
ment has  declared  a  f(M-fciture.  It  is  well  settled  that  a  private 
person  cannot  institute  ])r()ceedings  for  forfeiture.  The  right, 
as  we  have  seen,'*'  to  insist  upon  a  forfeiture  in  proper  proceed- 
ings therefor,  belongs  exclusively  to  the  government." 

§980  (804).  Staking  and  surveying  line  does  not  conclude 
the  company. — A  railroad  company  is  not  concluded  by  survey- 
ing and  staking  a  line  of  road.  For  purposes  concerning  the 
land  grant  it  is  not  concluded  until  a  map  is  made  and  filed. 
It  has  a  right  to  survey  and  stake  many  lines,  since  that  course 
is  necessary  in  order  to  enable  it  to  finally  decide  upon  the  line 
on  which  it  will  construct  its  road.'^  The  doctrine  of  the  cases 
referred  to  in  the  note  was  applied  to  the  decision  of  commis- 
sioners appointed  to  decide  and  report  upon  the  construction  of 
the  road.^^ 

T-"' Piatt  V.  Union   Pacific   R.   Co.,  R.  Co.  v.  Dunmeyer,  113  U.  S.  629, 

99  U.  S.  48,  25  L.  ed.  424.  5  Sup.  Ct.  566,  28  L.  ed.  1122;  Van 

70  Ante.   §  976.  Wyck   v.    Knevals,    106   U.   S.    360, 

77  Vicksburg    &c.    R.    Co.    v.    El-  366.  1  Sup.  Ct.  336,  27  L.  ed.  201. 
more,  46  La.  Ann.  1237,  15  So.  701.  7n  gniith    v.    Northern    Pacific    R. 

78  Sioux  City  &c.  Land  Co.  v.  •  Co.,  58  Fed.  513.  See  generally 
Griffey,  143  U.  S.  32,  39,  12  Sup.  Plum  v.  Houston  &c.  R.  Co..  10 
Ct.  362,  36  L.  ed.  64;   Kansas  Pac.  Tex.  Civ.  App.  312,  31  S.  W.  526. 


899 


LAND    GRANTS 


§981 


§  981  (805).  Aid  to  two  companies  by  same  grant. — The  rule 
is  that  where  two  Hues  of  road  are  aided  by  hind  grants  made 
by  the  same  act.  and  the  lines  of  the  roads  cross  or  intersect 
the  lands  within  the  "place"  limits  of  both,  the  lands  do  not 
pass  to  either  company  in  preference  to  the  other,  no  matter 
which  road  may  be  first  located  and  built,  but  pass  in  equal 
undivided  moieties. ^"^  Where  the  lands  are  granted  to  the  state 
for  the  accomplishment  of  specific  purposes  those  purposes  can- 
not be  defeated  by  the  state  or  by  any  corporations  which  are 
beneficiaries  under  the  grant,  so  that  where  the  state  attempts 
to  release  the  land  to  one  of  the  companies  and  the  release  is 
efifective  only  in  part,  the  state  and  the  United  States  will  hold 
the  land  not  eff^ectively  released  in  undivided  portions.*^ 

§982  (806).  Grants  by  the  government  —  Estoppel.  —  The 
general  rule  is  that  a  state  is  not  liound  by  the  unauthorized 
acts  of  its  officers,  and  that  an  estoppel  arising  from  such  acts 
wall  not  operate  against  it.--  But  this  general  rule  has  its  lim- 
itations and   exceptions. ^^     A  state,  as   the  owner  of  property, 


8"  Southern  Pac.  R.  Co.  v.  United 
States,  183  U.  S.  519,  22  Sup.  Ct. 
154.  46  L.  ed.  507;  Donahue  v. 
Lake  Superior  &c.  R.  Co.,  155  U. 
S.  386,  15  Sup.  Ct.  115,  39  L.  ed. 
194,  citing  St.  Paul  &c.  R.  Co.  v. 
Winona  &c.  R.  Co.,  112  U.  S.  720, 
5  Sup.  Ct.  334,  28  L.  ed.  866;  Sioux 
City  &c.  R.  Co.  V.  Chicago  &c.  R. 
Co.'.  117  U.  S.  406,  6  Sup.  Ct.  790. 
29  L.  ed.  928. 

SI  Donahue  v.  Lake  Superior  &c. 
R.  Co.,  155  U.  S.  386,  15  Sup.  Ct. 
115,  39  L.  ed.  194;  Crane  v.  Reeder, 
25  Mich.  303;  Ellsworth  v.  Grand 
Rapids,  27  Mich.  250;  Rogers  v. 
Port  Huron  &c.  Railroad  Co.,  45 
Mich.  460,  8  N.  W.  46;  Lake  Shore 
&c.  R.  Co.  V.  People,  46  Mich.  193, 
9  N.  W.  249;  Plumb  v.  Grand  Rap- 
ids. 81  Mich.  381,  45  N.  W.  1024; 
Hull  et  al.  V.  Marshall  County,  12 
Iowa   142. 


82  Whiteside  v.  United  States,  93 
U.  S.  247,  23  L.  ed.  882;  McCaslin 
V.  State,  99  Ind.  428;  Brown  v. 
Ogg.  85  Ind.  234;  Vail  v.  McKer- 
nan,  21  Ind.  421;  Ferris  v.  Cravens, 
65  Ind.  262;  Skelton  v.  Bliss,  7  Ind. 
11:  Reid  v.  State,  74  Ind.  252. 

83  Cahn  V.  Barnes,  5  Fed.  326; 
State  V.  Flint  &c.  R.  Co.,  89  Mich. 
481.  51  N.  W.  103;  Attorney-Gen- 
eral V.  Ruggles,  59  Mich.  123,  26 
N.  W.  419;  United  States  v.  Mc- 
Laughlin, 30  Fed.  147;  State  v. 
.Milk.  11  Fed.  389;  Hough  v.  Bu- 
chanan, 27  Fed.  328;  Pengra  v. 
Munz,  29  Fed.  830;  United  States 
V.  Missouri  &c.  R.  Co.,  Zl  Fed.  68; 
United  States  v.  Willamette  &c. 
Co..  54  Fed.  807.  See  United  States 
V.  Alabama  &c.  R.  Co.,  142  U.  S. 
615,  12  Sup.  Ct.  306,  35  L.  ed.  1134; 
United  States  v.  Hill,  120  U.  S. 
169,  7  Sup.  Ct.  510,  30  L.  ed.  627. 


!J^2  RAILROADS  400 


.'ind  as  a  partv  to  a  contract,  is  not  always,  by  any  means, 
entitled  to  assert  its  rights  as  a  sovereign,  for,  in  relation  to 
property  and  to  contracts,  there  are  cases  in  which  it  may  be 
regarded  substantiallv  as  a  private  corporation  or  an  individual 
citizen.^*  It  does  not  follow,  because  a  state  cannot  be  sued,''^ 
that  it  cannot  be  estopped,  for  there  is  an  essential  difference 
i)etween  its  exemi)tion  as  a  sovereign  from  suit  and  its  right 
to  enforce  a  contract  or  assert  a  cause  of  action  where  equity 
and  good  conscience  forbid.  Upon  sound  principle  is  it  held 
that,  where  the  officers  of  the  state  assuming  to  act.  for  the 
state  and  under  its  authority,  grant  lands  to  a  railroad  company 
to  aid  it  in  constructing  its  road,  and  there  is  long  acquiescence 
and  all  the  elements  of  estoppel  exist,  the  state  cannot  maintain 
a  suit  to  avoid  the  grant,  although  the  officers  exceeded  their 
authority. ^"^  The  doctrine  of  estoppel  has  been  applied  to  the 
case  of  a  countv  granting  land  to  a  railroad  com])any.  and  the 
reasoning  bv  which  the  court  reached  its  conclusion  would  seem 
to  support  the  conclusion  that  a   state  may  be  estopped.*^'      In 

8*  Wabash  &c.  Canal  Co.  V.  Beers.  »■">  Hans    v.    Louisiana.    134   U.    S. 

2  Black  (U.  S.)  448.  17  L.  ed.  327;  1,   10  Sup.   Ct.  504.  Zi   L.   ed.  842; 

Fletcher  v.  Peck.  6  Cranch  (U.  S.)  Ayers.  Tn  re,  123  U.  S.  443,  8  Sup. 

87,  3  L.  ed.  162;  Terrett  v.  Taylor.  Ct.    164.    31     L.    ed.    216;    State    v. 

9  Cranch  (U.  S.)   43.  3  L.  ed.  650;  Lazarus.    40    La.    Ann.    856,    5    So. 

Davis    V.    Gray.    16    Wall.    (U.    S.)  289;  :\Iurdock  &c.  Co.  v.  Common- 

203,    21     L.     ed.     447;     ^Murray     v.  wealth,  152  IMass.  28,  24  N.  E.  854, 

Charleston.  96  U.  S.  432.  24  L.  ed.  8    L.    R.   A.   399.   and    notes;    Com- 

760;   Keith  v.   Clark.  97  U.   S.  454.  monwealth   v.    Weller,   82   Va.   721, 

24  L.  ed.  1071;   TIartman  v.  Green-  1  S.  E.  102. 

how,  102  U.  S.  672,  26  L.  ed.  271;  se  State    v.    Jackson    &c.    R.    Co., 

Hall  V.  Wisconsm,  103  U.  S.  5,  26  69    Fed.    116.    citing    United    States 

L.    L(l.    302;    Poindexter    v.    Green-  v.   Alabama   &c.   R.   Co.,   142   U.   S. 

hr.w,  114  U.  S.  270,  5  Sup.  Ct.  903,  615.  12  Sup.  Ct.  306.  35  L.  ed.  1134; 

29  L.  ed.  185;  Grogan  v.  San  Fran-  United  States  v.   Macdaniel,  7  Pet. 

Cisco,  18  Cal.  590;  Georgia  &c.  Co.  ( U.    S.)     1,    8    L.    ed.    587;    United 

V.  Nelms,  78  Ga.  301;  Carr  v.  State,  States  v.  Union   Pacific    R.   Co.,  Zl 

127  Ind.  204,  26  N.  E.  778,  11  L.  R.  Fed.     551;     Michigan     &c.     Co.     v. 

A.   370;    People  v.    Canal    Commis-  Rust,  68  Fed.   155. 

sioner,  5  Denio  (N.  Y.)  401;  State  «'  Roberts  v.  Northern  Pacific  R. 

V.    Cardozo,   8   S.    Car.   71,   28  Am.  Co..    158   U.   S.    1,   15   Sup.   Ct.  756, 

Rep.  275;  Lowry  v.  Francis,  2  Yerg.  39  L.  ed.  873. 
(Tenn.)   534. 


401  LAND   GRANTS  §  983 

one  of  the  cases,  however,  it  is  held  that  the  United  States  is 
not  estopped  by  a  failure  to  promptly  take  measures  to  set  aside, 
the  certification  of  land  to  the  state. ^^ 

§983  (807).  Where  state  renders  performance  of  condition 
impossible,  grant  is  not  defeated. — The  well-known  g-eneral  rule 
that,  if  the  grantee,  by  his  own  act,  renders  the  performance 
of  a  condition  subsequent  impossible,  he  cannot  enforce  a  for- 
feiture of  the  estate  for  non-performance  of  the  condition,  applies 
to  land  grants.  A  state  cannot  defeat  the  estate  of  the  grantee 
by  a  wrongful  act  of  its  own  which  disables  or  prevents  a  rail- 
road company,  the  beneficiary  in  a  grant,  from  performing  the 
conditions  of  the  grant.  This  doctrine  was  applied  to  a  state 
\\hich,  by  seceding"  from  the  Union,  rendered  it  impossible  for 
the  railroad  company  to  perform  the  conditions  subsequent 
emljodied  in  the  grant  of  land  to  it.^'^ 

§984  (808).  Partial  failure  to  perform  conditions. — In  some 
of  the  grants  provision  is  made  that,  in  the  event  that  a  certain 
part   of  the   road   is   completed   within  a  designated   time,   title 

*s  United    States    v.    Winona    &c.  note  with   that  in   State  v.  Jackson 

R.   Co.,  67  Fed.  969,  citing  Lea   v.  &c.  R.  Co.,  69  Fed.  116.     We  think 

Polk  &c.  Copper  Co.,  21   How.   (U.  that  the  rule  laid   down  in  the  lat- 

S.)  493,  498,  16  L.  ed.  203;  Lindsey  ter    case    is    the    correct    one,    and 

V.   Miller,  6  Pet.    (U.  S.)   666.   8   L.  that  it   is   probable   that   there   may 

ed.    538;    United    States    v.    Knight,  be    a    distinction    between    the    two 

14  Pet.   (U.  S.)   301,  10  L.  ed.  465:  cases,   but   there    is   conflict   in   the 

Gilson    V.    Chouteau,    13    Wall.    (U.  statements  of  the  opinions  in  those 

S.)    92,    20    L.    ed.    534;    Noyes    v.  cases.       The     case     was     aftlrmed, 

Hall,   97   U.    S.   34.   24    L.   ed.    909;  however,  in  Winona  &c.  R.  Co.  v. 

United  States  v.  Thompson,  98  U.  United    States,    165    U.    S.    483,    17 

S.  486,  25  L.  ed.  194;  Finkv.  O'Neil,  Sup.    Ct.   381,    41    L.   ed.    798.      But 

106   U.    S.   272.    1    Sup.    Ct.   325,   27  see    United    States   v.    Winona    &c. 

L.  ed.  196;  United  States  v.  Nash-  R.   Co..   165  U.  S.  463,   17  Sup.   Ct. 

ville    &c.   R.    Co.,    118  U.   S.    120,   6  368,    41    L.   ed.    789;    United   States 

Sup.  Ct.  1006,  30  L.  ed.  81;  United  v.  Des  Moines  &c.  R.  Co.,  84  Fed. 

States    V.    Beebe.    127   U.    S.   338,   8  40.     See   generally  St.  Paul  &c.  R. 

Sup.  Ct.  1083,  iZ  L.  ed.  121;  Siebert  Co.  v.  Sage,  49  Fed.  315. 

V.  Rosser,  24  :\linn.   155.     It  is  not  s^  Davis    v.    Gray,    16    Wall.    (U. 

easy    to    reconcile    the    decision    in  S.)  203,  21   L.  ed.  447. 
the   first  of  the   cases   cited   in   this 


§  985  RAILROADS  402 

to  a  specillc  (|uaiitit_\-  of  land  >liall  \  est  in  the  company,  and 
another  (lesij^;nate(l  i)art  shall  \(.'st  wIumi  another  or  other  parts 
of  the  road  are  coni]ilete(l,  and  under  sneh  grants  it  is  held  that, 
ui)on  the  eoinplelion  of  a  i)art  of  the  road  entitling"  it  to  a 
designated  (piantity  of  land,  title  to  that  quantity  will  vest 
althout^h  the  other  part  of  the  road  may  not  be  completed  within 
the  time  limited.'"'  As  we  ha\e  elsewhere  shown,  a  trespasser 
or  intruder  cannot  successfully  raise  the  question  \vhether  there 
has  or  has  not  l)een  either  ])art  or  full  ])erformance  of  the  con- 
dition  subsequent.'" 

§985  (809).  Notice  by  possession  —  Adverse  possession. — 
Idle  j^eneral  rule  that  a  ])art}'  is  bound  to  take  notice  of  the 
rights  of  a  person  in  ])ossession  of  land  lias  l)een  a])plied  to  a 
raih-oad  com])any  under  a  land  grant.  It  was  held  that  where 
the  claimant  was  in  possession  under  "a  preemption  hling."  his 
possession  was  notice  to  the  com])any  claiming  title  under  a 
grant  made  by  statute."-  The  fact  that  the  claimant  w^as  in 
possession  under  his  i)reeni])iion  claim  was  said  to  be  *'a  decisive 
fact."  Hut  adverse  ])ossession  for  private  use  under  a  state 
statute  of  limitation  cannot  give  an  individual  title  to  part  of 
a  right  of  way  granted  by  Congress  to  a  railroad  company  and 
essential  to  its  |)roper  performance  of  the  duties  imposed  upon 
it."'"      It    is    the    pro\  ince    of   the    courts    to   determine    who   are 

""Railroad    Land    Co.    v.    Court-  R.   Co.,  67   Fed.  969,  citing   Lea  v. 

right,  21    Wall.    (U.   S.)    310.  22   L.  Polk  &c.  Copper  Co.,  21  How.   (U. 

ed.  582;  Courtright  v.  Cedar  Rapids  S.)   493.  498,   16  L.  ed.  203;  Noyes 

&c.  R.  Co.,  35  Iowa  386.     See  gen-  v.   Hall,  97  U.   S.  34.  2,1,  24  L.  ed. 

erally    Sioux    City    &c.    R.    Co.    v.  909;    Siebert    v.    Rosser,    24    Minn. 

Osceola  Co.,  43  Iowa  318;  Du])ui|ue  155,    16   Am.    &    Eng.    Ency.    of   L. 

&c.   R.   Co.   V.   Des   Moines    &c.    R.  800.     See  also   Nelson  v.   Northern 

Co.,  54  Iowa  89,  6  N.  W.  157.  Pac.  R.  Co.,  188  U.  S.  108,  23  Sup. 

01  Leavenworth  &c.  R.  Co.  v.  Ct.  302,  47  L.  cd.  406.  The  court 
United  States,  92  U.  S.  12i}),  23  L.  discriminated  llic  case  before  it 
ed.  634;  Grinter  v.  Kansas  Pacific  from  United  States  v.  Winona  &c. 
R.  Co.,  23  Kans.  642;  Hannibal  &c.  R.  Co.,  67  Fed.  948:  Spokane  Falls 
R.  Co.  v.  Moore,  45  Mo.  443.  See  &c.  R.  Co.  v.  Ziegler.  61  Fed.  392. 
Cooper  v.  Roberts,  18  How.  (U.  !'•<  Northern  Pac.  R.  Co.  v.  Town- 
S.)   173,  15  L.  ed.  338.  send,    190   U.    S.   267,   23    Sup.    Ct. 

02  United    States    v.    Winona    &c.  671.  47  L.   ed.    1044.     Thus,  where 


403 


LAND   GRANTS 


§986 


j)urchascrs  w  itlioiil  notice  and  to  protect  the  rij^lits  of  bona  fide 
purchasers  of  j^ublic  lands. '^* 

§986  (810).  Injunction  on  the  application  of  company. — 
There  can,  of  course,  be  no  doubt  tliat,  after  the  location  of  the 
road  and  the  identification  f)f  the  land,  a  comjiany  receiving-  a 
g-rant  may  maintain  injunction  to  prevent  the  destruction  of 
timber,  where  the  destruction  of  timber  would  work  irreparable 
injury.""'  The  question  as  to  the  right  to  an  injunction  is  not 
so  clear  where  there  has  been  no  location,  and,  consequently, 
no  identification  of  the  land.  But  it  has  been  held,  and  with 
reason,  that  the  company,  even  before  the  location  of  the  road, 
may  maintain  a  suit  to  enjoin  the  destruction  of  timber.'"' 


Congress  liad  granted  a  railroad 
company  a  riglit  of  way  400  feet 
wide  it  was  held  that  the  company 
could  not  be  divested  of  such  right 
to  the  entire  width  by  abandon- 
ment or  estoppel.  Union  Pac.  R. 
Co.  V.  Thcden.  104  Kans.  289,  178 
Pac.  441  (also  holding  that  the 
Norris  act  of  June  24,  1892,  pro- 
viding that  parts  of  right  of  waj^ 
abandoned  should  become  the 
property  of  abutters  is  prospective 
and  not  retroactive).  See  also 
Union  Pac.  R.  Co.  v.  Laramie 
Stockyards,  231  U.  S.  190,  34  Sup. 
Ct.  101,  58  L.  ed.  179.  But  com- 
pare Union  Pac.  R.  Co.  v.  Greelc}', 
189  Fed.  1;  Northern  Pac.  R.  Co. 
\.  Ely,  197  U.  S.  1.  25  Sup.  Ct.  302, 
49  I.,  ed.  639. 

^*  Rogan  V.  Edinburgh  &c.  Co., 
63  Fed.  192;  Cunningham  v.  Ash- 
ley. 14  How.  (U.  S.)  377,  14  L.  ed. 
462;  Garland  v.  Wynn,  20  How. 
(U.  S.)  6,  15  L.  ed.  801;  Lytle  v. 
Arkansas,  22  How.  (U.  S.)  193,  16 
L.  ed.  306;  Lindsey  v.  Hawes,  2 
Black  (U.  S.)  554.  17  L.  ed.  265; 
Johnson  v.  Towsley.   13  Wall.   (U. 


S.)  72.  20  L.  ed.  485;  Bernier.  v. 
Bernier,  147  U.  S.  242,  13  Sup.  Ct. 
244,  37  L.  ed.  152.  See  also  Logan 
V.  Davis,  233  U.  S.  613,  34  Sup.  Ct. 
685.  58  L.  ed.  1121;  Tarpey  v.  Mad- 
sen.  178  U.  S.  215,  20  Sup.  Ct.  849, 
44  L.  ed.  1042.  But  compare  North- 
ern Pac.  R.  Co.  V.  Colburn,  164 
U.  S.  383,  17  Sup.  Ct.  98,  41  L.  ed. 
479. 

o^Erhardt  v.  Boaro,  113  U.  S. 
537,  5  Sup.  Ct.  565,  28  L.  ed.  1117. 

96  Northern  Pacific  R.  Co.  v. 
Hussey,  61  Fed.  231,  citing  Frasher 
V.  O'Connor,  115  U.  S.  102,  5  Sup. 
Ct.  1141.  29  L.  ed.  311;  Doe  v. 
Wilson,  23  How.  (U.  S.)  457,  16 
L.  ed.  584;  Dubuque  &c.  R.  Co.  v. 
Litchfield,  23  How.  (U.  S.)  66,  16 
L.  ed.  500;  Ross  v.  Mcjunkin,  14 
Serjt.  &  R.  (Pa.)  364;  Toledo  &c. 
R.  Co.  V.  Pennsylvania  Co..  54  Fed. 
746.  19  L.  R.  A.  395.  An  incipient 
location  of  land  gives  the  person 
making  the  location  an  equitable 
interest  in  tlie  land  which  lie  can 
sell.  Kingman  v.  Holthaus.  59  Fed. 
305,  distinguishing  Lessiucr  v. 
Price.    12    How.    (U.    S.)    59,    13    L. 


§  987  RAILROADS  404 

§987  (811).  Effect  of  reservation  of  right  to  use  railroad  as 
a  highway. —  In  some  of  the  land  grants  Congress  incorporated 
a  prox  isii)ii  reading  as  follows:  "The  said  railroad  shall  he  and 
remain  a  i)ul)lic  highway  for  the  use  of  the  government  of  the 
United  States,  free  from  all  toll  or  t)tlu'r  charge  for  the  trans- 
portation of  any  property  or  trooi)s,"  and  it  has  been  held  that 
this  ])rovision  secures  to  the  government  the  free  use  of  the 
road,  but  does  not  entitle  it  to  have  troops  or  property  trans- 
ported free  of  charge.''"  The  reasoning  of  the  court  was  that 
reference  should  be  had  to  the  conditions  existing  at  the  time 
the  act  was  passed,  and  that  Congress,  in  adoi)ting  the  act  was 
influenced  by  the  mode  in  which  railroads  were  then  used. 
Cases  were  cited  holding  that  persons  or  corporations  might 
run  cars  over  the  tracks  of  the  company.^^  It  has  also  been 
held  that  the  act  of  Congress  requiring  land-grant  railroads  to 
carry  freight  for  the  use  of  the  army  at  not  exceeding  fifty 
per  cent,  of  the  tariff  rates  charged  the  general  public,  does  not 
entitle  the  government  to  a  reduced  rate  for  the  carriage  of 
such  freight  between  two  points  by  a  railroad  company  which 
received  no  land  grant,  merely  because  its  trains  run  for  a  part 
of  the  distance  over  the  track  of  a  land-grant  road."^ 

§988  (811a).  Right  to  take  timber  and  material  from  adja- 
cent lands. — Under  the  Act  of  Congress  of  March  3,  1875,  rail- 
road companies  which  have  obtained  a  right  of  way  over  public 
lands  of  the  United  States,  as  therein  prescribed,  are  granted 
the  right  "to  take  from  the  public  lands,  adjacent  to  the  line 
of  said   road,  material,   earth,   stone  and   timl^er"   necessary   for 

ed.  893;   Rector  v.  Ashley,  6  Wall.  Callahan    v.    Davis.    90    Mo.    78,    2 

(U.   S.)    142,   18  L.  ed.  733;   Gilsnn  S.  W.  216. 

V.   Chouteau,   13  Wall.    (U.   S. )    92,  "'Lake    Superior    &c.    R.    Co.    v. 

20   L.   ed.   534;    Shepley  v.    Cowaii,  United   States,  93   U.  S.  442,  23   L. 

91   U.   S.  330,  23  L.   ed.  424,  citing'  cd.  965;   Boyle  v.   Philadelphia  &c. 

Bush   V.  Marshall,  6  How.   (U.   S.)  R.  Co.,  54  Pa.  St.  310. 

285,  12  L.  ed.  440;  Landes  v.  Brant,  s's  King  v.  Severn  R.  Co.,  2  B.  & 

10  How.  (U.  S.)  348,  13  L.  ed.  449;  A.   646;    Queen   v.    Grand   Junction 

Levi  V.  Thompson,  4  How.  (U.  S.)  &c.  R.  Co.,  4  Q.  B.  18. 

17,  11   L.  ed.  856;  Massey  v.  Papin,  »»  United    States    v.    Astoria    &c. 

24  How.  (U.  S.)  362,  16  L.  ed.  734;  R.   Co.,  131   Fed.   1006. 


405  LAND   GRANTS  §  988 

its  constnu-lioii,  also  a  ccrlain  aniDiint  of  ground  adjacent  for 
station  buildings,  sliops,  side-tracks,  and  the  like.  The  word 
"adjacent"  has  been,  and  should  be.  somewhat  liberally  con- 
strued in  this  connection,  and  it  has  been  held  that  a  railroad 
company  has  the  right  to  cut  and  take  timber  or  material  from 
public  lands  adjacent  to  the  line  of  the  road  at  one  point  and 
use  it  on  portions  of  its  line  remote  from  such  point. ^  But,  while 
a  liberal  construction  should  be  given  to  the  act  in  regard  to 
taking  timber  and  material  from  adjacent  land,  yet  land  many 
miles  distant  from  the  line  of  the  road  and  not  immediately 
accessible  from  it  can  not  l)e  said  to  be  adjacent  within  the 
meaning  of  the  act.- 

1  United  States  v.  Denver  &c.  R.  &c.   R.   Co.,    191    U.   S.  84,  24   Sup. 

Co.,  150  U.  S.  1.  14  Sup.  Ct.  11,  2,7  Ct.  2,3,  48  L.  ed.  106.     See  also  for 

L.  ed.  975;  United  States  v.  Hynde,  case    in    which    it    was    held    that   a 

47  Fed.  297.  bill  in  equity  would  not  lie,  United 
-  United  States  v.  St.  Anthony  R.  States  v.  Bitter  Root  Development 

Co.,  192  U.  S.  524,  24  Sup.  Ct.  Z2>2>,  Co.,  200  U.  S.  451,  26  Sup.  Ct.  318, 

48  L.  ed.  548.  See  also  Stone  v.  50  L.  ed.  550.  And  see  generally 
United  States,  64  Fed.  667,  167  U.  as  to  right  to  cut  timber  on  public 
S.  178,  17  Sup.  Ct.  778,  42  L.  -ed.  land  and  the  remedies,  note  to 
127.  And  see  as  to  action  by  King-Ryder  Lumber  Co.  v.  Scott, 
United  States  in  trover  for  cutting  73  Ark.  329,  in  70  L.  R.  A.  873. 
timber.     United    States    v.    Denver 


CHAPTER  XXXTV 


PUBLIC  AID 


Sec. 

995.  State  aid. 

996.  State  aid— Lien  of  state. 

997.  Constitutionality    of    statutes 

authorizing  municipal  aid 
to  railroads. 

998.  Construction      of      constitu- 

tional provisions. 

999.  Corporate     purpose — Consti- 

tutional   limitations. 

1000.  Constitutional  prohibitions. 

1001.  Direct    limitations    upon    the 

state  not  limitations  upon 
power  to  authorize  mu- 
nicipalities  to  grant  aid. 

1002.  Constitutional  restrictions  op- 

erate prospectively. 

1003.  Limitation    upon    the    power 

of  municipalities  to  incur 
debts. 

1004.  Constitutional       questions  — 

Delegation  of  legislative 
power. 

1005.  Submission  to  vote. 

1006.  Submission    to    popular    vote 

—  Constitutional  require- 
ments. 

1007.  Necessity     of     regularity     in 

the  election. 

1008.  Form  of  ballot. 

1009.  Form     of     ballot  —  Double 

question. 

1010.  Constitutional    power— Com- 

pelling public  corporations 
to    aid    railway   companies. 

1011.  Scope      of      the      legislative 

power. 

1012.  Scope      of      the      legislative 

power — Illustrative   cases. 


Sec. 

1013.  Power     to     aid     railroads  — 

Statutory  authority. 

1014.  Power   to    grant   aid    is   con- 

tinuous. 

1015.  Railroad     aid     laws     not     re- 

stricted to  new  companies. 

1016.  Taxing  the  property   of  one 

railroad  company  to  aid  in 
the  construction  of  the 
road   of  another  company. 

1017.  Construction  of  statutes  con- 

ferring authority  to  aid 
railroad  companies. 

1018.  Inadequacy  of  statute. 

1019.  Impairment        of        contract 

rights. 

1020.  Impairment        of        contract 

rights — Illustrative    cases. 

1021.  Construction     of     statutes  — 

Implied  powers. 

1022.  Construction  of  statutes  con- 

ferring authority  to  aid 
railroad  companies — Illus- 
trative instances. 

1023.  Construction       of       enabling 

acts — Adjudged  cases. 

1024.  ^kfeans  and  methods. 

1025.  Requirements     of     statute  — 

Classes   of  cases. 

1026.  Power  to  aid  by  subscription 

does  not  authorize  the  ex- 
ecution of  bonds. 

1027.  Levy    of    taxes — Withdrawal 

of  power — Time. 

1028.  Donations  and  subscriptions. 

1029.  Repeal     of     enabling     act  — 

Withdrawal  of  authority. 


406 


407 


PUBLIC  AID 


§995 


Sec. 

1030.  Validating   proceedings — Re- 

trospective laws. 

1031.  Legislative  power  to  author- 

ize ratification. 

1032.  Curative  statutes — Requisites 

of. 

1033.  Division  of  municipal  corpo- 

rations for  purpose  of  vot- 
ing. 

1034.  What    corporations    may    be 

authorized  to  grant  aid. 

1035.  Subscription    to    unorganized 

company. 

1036.  Votes — Voters — Majority    of 

votes. 

1037.  Failure    to    conform    to    the 

requirements  of  the  en- 
abling act  —  Illustrative 
cases. 

1038.  Conditions — Performance    of 

— Excuse  for  non-perform- 
ance— Illustrative  cases. 

1039.  Other  illustrative  cases. 

1040.  Time  for  completion  of  road 

where  not  fixed  in  con- 
tract. 

1041.  Conditions  —  Power    of    mu- 

nicipality to  prescribe. 

1042.  Change  of  municipality. 

1043.  Efifect  of  change  of  name  of 

corporation. 

1044.  Limitations  upon  the  amount. 

1045.  Valuation  of  property. 

1046.  Conditions      must      be      per- 

formed. 
Preliminarj'  survey. 


Sec. 
1048. 


1049. 
1050. 


1051. 
1052. 


1055. 


1056. 


Petition — Requisites  of — Pe- 
titioners— Qualifications  of. 

Notice  of  election. 

Notice  of  election — Strict- 
ness with  reference  there- 
to. 

Influencing  voters. 

\'otc  does  not  of  itself  con- 
stitute a  contract. 

1053.  Aid    authorized    by    popular 

vote— Duty  of  local  offi- 
cers. 

1054.  Contract   granting   aid — Sub- 

scription— Enforcement. 
Power   of   municipal    officers 

where       statute       requires 

submission  to  popular  vote. 
Decision   of  local   officers   as 

to   jurisdictional    facts. 

1057.  Acceptance  of  aid. 

1058.  Ratification  of  subscription. 

1059.  Stock  subscribed  by  munici- 

pality— Legislative  control 
of. 

Rights  and  liabilities  of  mu- 
nicipal corporations  a  s 
stockholders. 

Defenses  to  municipal  sub- 
scriptions. 

1062.  Estoppel  of  tax-payers. 

1063.  Remedies  of  tax-payers. 

1064.  Remedies  of  municipalities. 
Remedies    of    railroad    com- 
panies. 

Remedies  of  railroad  com- 
panies— Continued. 


1060. 


1061. 


1065. 
1066. 


1047, 

§995  (812).  State  aid.  —  Where  there  is  no  constitutional 
provision  prohibiting  it  a  state  may  aid  in  the  construction  of 
a  railroad  although  the  railroad  is  owned  by  a  railroad  cor- 
poration.^   Where  a  change  in  the  constitution  withdraws  power 

1  If,  as  held  in  the  cases  hereafter  necessarily  follows  that  the  state 
cited,  the  state  may  authorize  mu-  may  grant  it  directly.  See  post, 
nicipalities    to    grant    such    aid,    it       §  1269. 


^  !)!)6  RAILROADS  408 

I'roni  the  Icmislriliirc  or  makes  the  ris^ht  to  grant  aid  depend 
upon  a  popular  \c)te  the  les^ishiture  cannot  grant  aid  after  the 
change  in  tlie  constitution  where  the  change  operates  as  a  with- 
(h-a\val  of  the  power,  or,  where  the  constitution  so  recpiires. 
without  submitting  the  matter  to  a  xote  of  the  people.-  The 
statute  granting  the  aid  and  the  acce])tance  of  the  company 
constitutes  the  contract,  and  if  the  statute  does  not  expressly 
or  by  fair  implication  provide  that  the  stockholders  of  the 
rom])an\-  shall  be  personally  liable,  then  no  such  liability  exists.^ 

§996  (813).  State  aid — Lien  of  state. — A  state,  by  guar- 
antying the  bonds  of  a  railway  comjiany,  or  by  issuing  its  own 
bonds  in  aid  of  a  railway  company,  does  not  secure  a  lien  on 
the  property  of  the  company  or  on  any  specific  fund,  unless 
the  statute  expressly  and  clearly  provides  that  the  state  shall 
have  a  lien."*  It  has,  however,  been  held  that  a  statute  may 
be  so  framed  as  to  give  the  state  a  lien  on  tlie  ])roperty,  or  a 
right  to  a  specific  fund.''  The  rule  that  a  state,  when  it  enters 
into  a  contract,  is  to  be  regarded  substantially  as  any  other 
contracting  part}',  recpiires  the  conclusion  that,  unless  a  lien  is 
provided  for  by  the  statute  or  contract,  none  exists.  Where 
a  lien  exists  in  favor  of  the  state,  it  cannot  be  divested  except 
by  the  state,  or  by  a  valid  decree.'' 

•^.McKittrick  V.  Arkansas  Central  Wall.  (U.  S.)  276.  19  L.  cd.  349; 
R.  Co.,  152  U.  S.  473.  14  Sup.  Ct.  Hale  v.  I'incli,  104  U.  S.  261,  269, 
661,  38  L.  ed.  518,  citing  Aspinwall  26  L.  cd.  732;  Carrol  v.  Green.. 92 
V.  Daviess  County,  22  How.  (U.  S.)  U.  S.  509.  23  L.  ed.  738. 
364.  16  L.  ed.  296;  Wadsvvorth  v.  *  Tompkins  v.  Little  Rock  &c. 
Supervisors,  102  U.  S.  534.  26  L.  R.  Co..  125  U.  S.  109.  8  Sup.  Ct. 
cd.  221;  State  v.  Little  Rock  &c.  762.  31  L.  ed.  615;  xMcKittrick  v. 
R.  Co.,  31  Ark.  701.  Arkansas  Central  R.  Co.,  152  U.  S. 
3  United  States  v.  Stanford,  69  473,  14  Sup.  Ct.  661,  38  L.  ed.  518. 
Fed.  25,  citing  United  States  v.  ■'■  Ketchum  v.  St.  Louis.  101  U.  S. 
Union  Pac.  R.  Co.,  91  U.  S.  72,  23  306.  25  L.  ed.  999;  Knevals  v.  I'lori- 
L.  ed.  224;  Sinking  Fund  Cases.  99  da  &c.  R.  Co.,  66  Fed.  224;  Wilson 
U.  S.  700,  25  L.  ed.  496;  Union  Pac.  v.  Ward  &c.  Co.,  67  Fed.  674. 
R.  Co.  V.  United  States.  104  U.  S.  «  Wilson  v.  Boyce,  92  U.  S.  320. 
662,  26  L.  ed.  884;  Hudson  Canal  23  L.  ed.  608;  Whitehead  v.  Vine- 
Co.    V.    Pennsylvania    Coal    Co..    8  yard.  50  Mo.  30;  Choteau  v.  Allen, 


409 


PrHLIC  AID 


§997 


§997  (814).  Constitutionality  of  statutes  authorizing  mu- 
nicipal aid  to  railroads. — Tlu'  question  as  to  the  power  of  the 
legislature  to  authorize  immicipal  corporations  to  aid  railroad 
comjianies  I)}-  donations  or  subscriptions  cannot  now  be  re- 
garded as  an  open  one.  The  question  has  been  much  debated, 
but  the  overwhelming  weight  of  authority,  in  the  absence  of 
constitutional  proliibition  or  limitation  upon  the  subject,  sus- 
tains the  validity  of  statutes  authorizing  public  corporations  to 
aid  in  building  railroads."  The  prevailing  doctrine  has  met 
with  oi)position.  but  it  is  now  too  thoroughly  settled  to  be 
successfully  assailed.      It   is   true   that  monev  cannot  be  raised 


70  ^lo.  290.  ^27.  328.  Sec  Wilson 
V.  Beckwith,  117  .Mo.  61,  22  S.  W. 
639:  Hawkins  v.  Mitcliell.  34  Fla. 
405.  16  So.  311. 

~  Of  the  great  number  of  cases 
upon  this  subject  we  cite:  Railroad 
Co.  V.  Otoe  County.  16  Wall.  (U. 
S.)  667.  21  L.  ed.  375:  Olcott  v. 
Supervisors,  16  Wall.  (U.  S.)  678, 
21  L.  ed.  382;  Rogers  v.  Keokuk, 
154  U.  S.  546,  14  Sup  Ct.  1162,  18 
L.  ed.  74;  Opelika  v.  Daniel,  59 
Ala.  211:  Stockton  &c.  Co.  v. 
Stockton,  41  Cal.  147;  Bridgeport 
\.  Housatonic  Co.,  15  Conn.  475; 
Douglas  V.  Chatham,  41  Conn.  211; 
Cotton  V.  County  Comrs.,  6  Fla. 
610;  Winn.  v.  Macon,  21  Ga.  275; 
Powers  V.  Inferior  Court.  &c.,  23 
Ga.  65;  Quincy  &c.  R.  Co.  v.  ^lorris, 
84  111.  410;  Pitzman  v.  Freeburg, 
92  111.  Ill;  Harney  v.  Indianapolis 
R.  Co.,  32  Ind.  244;  Leavenworth 
Co.  V.  Miller,  7  Kans.,  479.  12  Am. 
Rep.  425;  Courtney  v.  Louisville,  12 
Bush  (Ky.),  419;  Augusta  Bank  v. 
Augusta,  49  Maine  507;  Hawkins  v. 
Carroll  County,  50  Miss.  735;  State 
V.  Linn  Co.,  44  Mo.  504;  Reineman 
v.  Covington  &c.  R.  Co.,  7  Nebr. 
310;  Perry  v.  Keene,  56  N.  H.  514; 
People   V.    Mitchell,   35   N.   Y.   551; 


Hill  V.  Commissioners,  67  N.  Car. 
368:  Walker  v.  Cincinnati,  21  Ohio 
St.  14.  8  Am.  Rep.  24;  Sharpless  v. 
Mayor  &c.,  21  Pa.  St.  147,  59  Am. 
Dec.  759;  State  v.  Charleston,  10 
Rich.  L.  (S.  Car.)  491;  Louisville 
&c.  Co.  V.  Davidson  County  &c., 
1  Sneed  (Tenn.)  637,  62. Am.  Dec. 
424;  Harcourt  v.  Good,  39  Tex.  455; 
Lamville  &c.  Co.  v.  Fairtield,  51 
Vt.  257;  Longhorne  v.  Robinson,  20 
Grat.  (Va.)  661;  Elliott  Roads  and 
Streets  (3d  ed.),  435,  et  seq.  See 
also  Matter  of  New  York  Cent.  &c. 
R.  Co.,  136  App.  Div.  760,  121  N. 
Y.  S.  524.  It  is  even  held  that  the 
legislature  may  authorize  such  aid 
although  the  railroad  is  located 
partly  or  wholly  outside  the  muni- 
cipality or  state.  Chicago  &c.  R. 
Co.  V.  Otoe  County,  16  Wall.  (U. 
S.)  667,  21  L.  ed.  375;  Atlantic 
Trust  Co.  V.  Darlington,  63  Fed. 
76;  Louisville  &c.  R.  Co.  v.  David- 
son Co.,  1  Sneed  (Tenn.)  637,  62 
Am.  Dec.  424;  St.  Joseph  &c.  R. 
Co.  V.  Buchanan  Co.,  39  INIo.  485. 
See  [Municipal  Trust  Co.  v.  Johnson 
City.  116  Fed.  459,  as  to  evidence  ps 
to  whether  the  municipality  was 
dealing  with  a  foreign  or  domestic 
company. 


§997 


RAILROADS 


410 


!iy  taxation  for  the  bcnciit  of  private  persons  or  purely  private 
cori)orations.*  l)ut  a  railroad  is.  as  we  have  elsewhere  shown, 
a  public  enterprise,  and,  theoretically,  if  not  always  practically, 
does  promote  the  puldic  welfare.  Because  of  its  public  nature 
it  is  sid)jected  to  man}'  burdens  from  which  ])rivate  cor])orations 
and  individual  citizens  are  free."  There  is,  therefore,  reason 
supporting  the  acce])te(l  doctrine,  although,  as  often  happens, 
there  are  reasons  sup])orting  a  different  view.  It  is  to  be  re- 
marked that  it  is  soleh'  upon  the  ground  that  a  railroad  is  a 
matter  of  public  concern  that  the  power  to  lay  a  tax  upon  the 
inhal:)itants  of  a  municipality  can  be  sustained.'^"  So  that  if  a 
corporation  has,  if  we  may  use  the  term,  a  public  and  a  private 
side,  it  is  only  to  the  pul)lic  side  that  municipal  aid  can  l)e 
given. ^^ 


'^  Loan  Association  v.  Topcka,  20 
Wall.  (U.  S.)  655.  22  L.  ed.  455: 
Parkcrsburg  v.  Brown.  106  U.  S. 
487.  1  Sup.  Ct.  442.  27  L.  ed.  238. 
2  Am.  &  Eng.  Corp.  Cas.  263:  Blair 
V.  Cuming  County,  111  U.  S.  363. 
4  Sup.  Ct.  449,  28  L.  ed.  457;  Cole 
V.  LaGrange,  113  U.  S.  1.  5  Sup. 
Ct.  416,  28  L.  ed.  896;  7  Am.  &  Eng. 
Corp.  Cas.  379;  State  v.  Osawkce 
Township.  14  Kans.  418,  19  Am. 
Rep.  99;  Brewer  Brick  Co.  v.  Brew- 
er, 62  Maine  62,  16  Am.  Rep.  395; 
Lowell  V.  Boston,  111  Mass.  454, 
15  Am.  Rep.  39;  Coates  v.  Camp- 
bell. Zl  Minn.  498.  35  X.  W.  366; 
Weismcr  v.  Village  of  Douglas.  64 
N.  Y.  91.  21  Am.  Rep.  586;  Field- 
man  V.  Charleston,  23  S.  Car.  57. 
55  .\m.  Rep.  6;  Curtis  v.  Whipple, 
24  Wis.  350,  1  Am.  Rep:  187. 

^  Northern  Pacific  R.  Co.  v.  Rob- 
erts, 42  Fed.  734.  In  this  case  the 
court  denied  the  doctrine  of  Whit- 
ing V.  Sheboygan  &c.  R.  Co..  25 
Wis.  167,  3  Am.  Rep.  30,  and  de- 
clared that  it  was  opposed  to  the 
doctrine  asserted  in  Pratt  v.  Brown. 


3  Wis.  603;  Hasbrouck  v.  Milwau- 
kee. 13  Wis.  n,  80  Am.  Dec.  718, 
and  note:  Robbins  v.  Milwaukee 
&c.  R.  Co.,  6  Wis.  die-,  Soens  v. 
Racine,  10  Wis.  271;  Brodhead  v. 
Milwaukee,  19  Wis.  624,  88  Am. 
Dec.  711.  and  note:  Roberts  v. 
Northern  Pacific  R.  Co.,  158  U.  S. 
1,  15  Sup.  Ct.  756,  39  L.  ed.  873. 

^"In  the  case  of  Northern  Paci- 
fic R.  Co.  V.  Roberts,  42  Fed.  734, 
the  court  treats  a  railroad  as  a  pub- 
lic highway.  The  question  is  well 
considered  in  the  case  referred  to, 
and  mai\y  cases  are  cited,  some  al- 
ready referred  to  by  us.  and  others, 
among  them,  Beekman  v.  Saratoga 
&c.  R.  Co.,  3  Paige  (N.  Y.)  45,  22 
Am.  Dec.  679,  and  note;  Selma  &c. 
R.  Co.  Ex  parte,  45  Ala.  696.  6  .A-m. 
Rep.  722;  Brocaw  v.  Board.  11  Ind. 
543;  Hallenbeck  v.  Hahn.  2  Nebr. 
Zn-.  Bennington  v.  Park.  50  Vt. 
178. 

11  Tt  has  been  held  that  although 
a  private  corporation  is  organized 
for  the  double  purpose  of  building 
and  operating  a  railroad  and  erect- 


411 


ITHLIC  AID 


§998 


§998  (815).  Construction  of  constitutional  provisions. — It 
seems  to  us  where  the  constitution  provides  that  specified  acts 
shall  be  done,  before  aid  can  be  given,  that  such  provisions 
should  he  regarded  as  mandatory,  for,  in  our  judgment,  all  the 
provisions  of  the  ccMistitution  should  be  regarded  as  mandatory 
unless  the  context  clearly  shows  that  they  were  intended  to  be 
directory,^-  but,  as  will  be  presently  shown,  some  of  the  adjudged 
cases  do  not  adhere  very  closely  to  this  i)rinciple.  So,  where 
specific  things  are  enumerated,  it  seems  to  us  that  the  enumer- 
ation should  be  held  to  exclude  things  not  enumerated,  for,  as 
vvc  believe,  the  rule  that  the  express  mention  of  one  thing  ex- 
cludes others  applies  with  even  greater  force  to  written  con- 
stitutions than  to  any  other  instruments.^'^  In  accordance  with 
what  we  believe  to  be  the  true  rule  it  has  been  held  that  a 
provision  requiring  publication  for  a  designated  length  of  time 
prior  to  the  enactment  of  a  statute  is  mandatory.^* 

§999   (816).     Corporate  purpose — Constitutional  limitations. — 

The  question  has  arisen  in  some  jurisdictions  as  to  whether 
the  grant  of  aid  can  be  justly  regarded  as  a  "corporate  purpose." 
The  power  to  grant  aid,  as  we  have   seen,  is  not  an  ordinary 


ing  a  cotton  compress,  the  former 
a  public  improvement,  and  the  lat- 
ter a  private  enterprise,  a  special 
tax  which  is  voted  by  a  municipal 
corporation  in  its  behalf,  in  aid  of 
the  construction  of  the  former 
alone,  is  valid.  AfcKenzie  v.  Wool- 
ey,  39  La  Ann.  944,  3  So.  128. 

Instate  v.  Johnson,  26  Ark.  281; 
IVIay  V.  Rice,  91  Ind.  546:  Varney  v. 
Justice,  86  Ky.  596;  Cannon  v. 
Mathes,  8  Heisk.  (Tenn.)  504.  See 
also  Gulf  &c.  R.  Co.  v.  Miami 
County,  12  Kans.  230:  Portland  R. 
Co.  V.  Standish,  65  Maine  63;  Leav- 
enworth R.  Co.  V.  Platte  County, 
42  Mo.  171;  Stern  v.  Fargo,  18  N. 
Dak.  289,  122  N.  W.  403,  26  L.  R. 
A.  (N.  S.)  665. 


Instate  V.  Blend,  118  Ind.  426, 
21  N.  E.  267,  4  L.  R.  A.  93,  and 
note;  Page  v.  Allen,  58  Pa.  St.  338. 
98  Am.  Dec.  272. 

!■*  The  constitution  of  ^laryland 
contains  a  provision  wherein  it  is 
declared  that  no  county  shall  con- 
tract any  debt  or  obligation  in  the 
construction  of  a  railroad,  nor  give 
or  loan  its  credit  to  a  corporation, 
unless  authorized  bj'  an  act  of  the 
assembly,  "which  shall  be  published 
for  two  months  before  the  next 
election  for  members  of  the  house 
of  delegates  in  the  newspapers  pub- 
lished in  said  counties,"  and  this 
was  held  to  mandatory.  Baltimore 
&  D.  R.  Co.  V.  Pumphrey,  74  Md. 
86,  21  Atl.  559. 


§999 


KAILUOADS 


412 


or  incidental  corixjratc  power,  and  exists  only  by  virtue  of  legis- 
lative enactment.  lUit  it  does  not  follow,  because  the  power  to 
grant  aid  is  not  an  ordinary  corporate  power,  that  granting  aid 
is  not  a  "corporate  pur])Ose."  No  constitutional  provision  for- 
liidding,  an}-  public  purpose  not  pali)ably  foreign  to  the  object 
of  a  municipal  corporation  may  be  regarded  as  "a  corporate 
purpose."  where  the  legislature  so  enacts.  We  should  very  much 
doubt  whether  a  statute  assuming  to  make  that  a  corporate 
purpose  wdiich  palpably  and  unmistakably  could  not  be  a  cor- 
porate purpose  would  be  valid,  since  such  a  rule  would  make 
the  provisions  of  the  constitution  limiting  the  power  to  tax  to 
corpt^rate  ]nir])oses  ])ractically  inoperative.'"'     l>ut  whatever  may 


1-''  In  the  case  of  Atlantic  Trust 
Co.  V.  Darlington,  63  Fed.  76,  it 
was  said:  "The  constitution  permits 
the  legislature  to  authorize  munici- 
pal corporations  to  assess  and  col- 
lect taxes  for  corporate  purposes 
(Sec.  8,  Art.  9),  and  none  other. 
.A  municipal  corporation  is  not 
only  a  representative  of  the  state, 
but  a  portion  of  its  governmental 
power.  It  is  (Mie  of  its  creatures, 
made  for  a  specific  purpose,  to  ex- 
ercise within  a  limited  sphere  the 
powers  of  the  state.  United 
States  v.  Railroad  Co.,  17  Wall. 
(U.  S.)  322,  21  L.  ed.  597.  The 
powers  of  a  municipal  corporation, 
dependent  wholly  upon  the  source 
whence  they  arc  derived,  may  be 
enlarged  at  any  time  bj-  the  legis- 
lature. Rogers  v.  Burlington,  3 
Wall.  (U.  S.)  654,  18  L.  ed.  79. 
The  legislature  then  determines  the 
purpose  for  which  they  have  been 
created,  and  clothes  them  with  the 
means  of  attaining  them.  These 
purposes  are  their  corporate  pur- 
poses. The  legislature  may  declare 
that  corporate  purposes  may  be 
promoted     by    affording    aid    to    a 


railroad.  The  unchanging  course 
of  legislation  shows  that  this  is  a 
public  purpose,  as  well  as  a  cor- 
porate purpose;  and,  without  ques- 
tion, cities,  towns,  villages  and 
counties  have  again  and  again  been 
clothed  with  this  power.  It  is  true 
that  in  I'loyd  v.  Perrin.  30  S.  Car. 
1,  8  S.  E.  14,  arguendo,  the  court 
says  that  counties  have  the  right 
to  aid  in  such  construction,  because 
they  have  jurisdiction  over  high- 
ways, and  a  railroad  is  a  highway. 
But  streets  in  cities,  towns  and 
villages  are  also  highways;  and. 
although  the  authority  of  the  coun- 
ty over  its  highways  ends  at  its 
boundaries,  a  county  has  the  right 
to  aid  a  railroad  whose  termini  arc 
in  other  counties — perhaps  in  other 
states.  I'^loyd  v.  Perrin,  relied  on 
in  argument,  does  not  decide  that 
aid  to  a  railroad  can  not  be  a  cor- 
porate ])ur])osc."  The  doctrine  is 
broadly  stated  in  the  opinion  from 
which  we  ha^-e  cjuoted,  but  there 
can  be  no  doubt  that  the  power  of 
the  legislature  to  determine  what 
are  corporate  purposes  is  very 
broad  and  comprehensive.    Railroad 


413 


PUBLIC  AID 


§  1000 


l)e  the  extent  to  which  the  legislature  can  go,  there  can  be  no 
doubt  that  the  legislature  may  confer  the  right  to  aid  railroad 
companies,  although  the  power  to  levy  taxes  is  limited  to  taxes 
for  "corporate  purpose. "^*^ 


§  1000  (817).  Constitutional  prohibitions. — A  i)ro\isit)n  In  "a 
state  constitution  forbidding  municipal  corporations  from  be- 
coming stockholders  in  railroad  corporations,  and  from  raising 
money  for  such  a  corporation,  or  loaning  their  credit  thereto,  is 
A'iolated  l)y  a  statute  which  assimies  to  empower  a  township 
to  construct  a  railroad  within  the  limits  of  the  township,  which 
road  is  designated  to  form  part  of  a  line  of  road  owned  by  a 
railroad  company.^'  Bonds  issued  under  such  a  statute  are  void 
in   the  hands  of  bona   fide  holders.^*     It  was  also   held   in   the 


aid  bonds  can  not  be  issued  where 
the  statute  prohibits  the  munici- 
pality from  incurring  any  indebted- 
ness, except  such  as  shall  be  "neces- 
sary to  the  administration  of  in- 
ternal affairs."  Lewis  v.  Pima 
County,  15S  U.  S.  54,  15  Sup.  Ct. 
22,  39  L.  ed.  67:  Darlington  v.  At- 
lantic  Trust   Co.,   68   Fed.   849. 

16  Livingston  County  v.  Darling- 
ton. 101  U.  S.  407,  411,  25  L.  ed. 
1015:  Johnson  v.  Stark  Co..  24  111. 
75:  Perkins  v.  Lewis,  24  Til.  208: 
Chicago  &c.  Co.  v.  Smith,  62  111. 
268.  14  Am.  Rep.  99:  Butler  v. 
Dunham.  27  111.  473:  Keithsburg  v. 
Frick,  34  111.  405.  Analogous  cases 
fully  support  the  statement  of  the 
text.  Taylor  v.  Thompson.  42  111. 
9;  Henderson  v.  Lagow,  42  111. 
360:  Briscoe  v.  Allison,  43  IP.  291: 
Johnson  v.  Campbell,  49  111.  316: 
Middleport  v.'  Aetna  Life  Ins.  Co.. 
82  111.  562. 

1"  Pleasant  Tp.  v.  Aetna  Life  Ins. 
Co..  138  U.  S.  67.  11  Sup.  Ct.  215. 
34  L.  ed.  864;  Aetna  Life  Ins.  Co. 
V.  Pleasant  Tp.,  53  Fed.  214:  Aetna 


Life  Ins.  Co.  v.  Pleasant  Tp.,  62 
Fed.  718:  Wyscaver  v.  Atkinson. 
37  Ohio  St.  80:  Counterman  v.  Dub- 
lin Tp..  38  Ohio  St.  515.  The  case 
of  Walker  v.  Cincinnati.  21  Ohio 
St.  14,  8  Am.  Rep.  24.  was  dis- 
tinguished, and  it  was  held  not  to 
be  inconsistent  with  the  decisions 
in  the  cases  last  cited.  We  do  not 
believe,  we  may  say,  by  the  way, 
that  townships  can  embark  in  the 
business  of  building  and  operating 
railroads.  See  also  Atkinson  v. 
Board.  18  Idaho  282.  108  Pac.  1046. 
28  L.  R.  A.  (N.  S.)  412.  and  other 
cases  there  cited  in  note.  But  see 
Sun  Printing  &c.  Assn.  v.  Mayor, 
152  N.  Y.  257,  46  N.  E.  499.  37  L. 
R.  A.  788.  The  legislature  cannot 
authorize  muncipal  aid.  under  such 
constitutional  prohibitions,  either 
directly  or  by  means  of  a  release 
from  pecuniary  burdens.  Jerse}- 
City  v.  North  Jersey  St.  R.  Co.,  78 
N.  J.  L.  72,  73  Atl.  609. 

IS  The  conclusion  stated  in  the 
text  is  clearly  right.  The  statute 
being  void  there  was  no  power  to 


^  lom 


K  AILKO  ADS 


41-i 


first  of  the  cases  referred  to  in  the  note  that  the  township  might 
prove  the  facts  averred  in  its  answer,  which  tended  to  establish 
the  unconstitutionality  ol  the  statute. 

§  1001  (818).  Direct  limitations  upon  the  state  not  limitations 
upon  power  to  authorize  municipalities  to  grant  aid. —  Ihe  ad- 
iudged  cases  favor  the  doctrine  that  constitutional  provisions 
prohibiting  the  state  from  taking  stock  in  a  corporation,  lending 
its  credit  to  a  corporation,  and  incurring  an  indebtedness  in  aid 
of  a  corporation,  do  not  restrain  the  legislature  from  empowering 
public  corporations  to  grant  aid  to  railroad  companies. ^^  Thus  a 
constitutional  provision  that  the  state  shall  not  subscribe  for  the 
stock  of  a  railroad  has  been  held  not  to  affect  the  right  of  the 
legislature  to  authorize  a  inunici])al  corporation  to  do  so.-''  So, 
it  has  been  held,  limitations  ui)on  the  power  of  the  state  to  incur 
indebtedness  to  aid  in  internal  improvements  do  not  prevent  the 
legislature  from  granting  power  to  miuiicipalities  to  issue  rail- 
road aid  bonds. -^  Indeed,  so  far  has  judicial  construction  been 
carried  in  support  of  the  system  of  aiding  railroads  by  public 
funds,  that  an  article  in  the  constitution  of  Ohio  declaring  that, 
"The  general  assembly  shall   never  authori/X'  any   county,  city. 


issue  the  bonds,  and  the  entire  ab- 
sence of  power  is  always  a  defense. 

19  The  tendency  of  the  decisions 
is  to  support  statutes  authorizing 
municipalities  to  grant  aid  to  rail- 
road companies. 

20  Taylor  v.  Yipsilanti.  105  U.  S. 
60,  26  L.  ed.  1008;  Cotton  v.  Leon 
Co.,  6  Fla.  610;  Prettyman  v.  Su- 
pervisors, 19  III.  406,  71  Am.  Dec. 
230;  Robertson  v.  Rockford,  21  111. 
451;  Aurora  v.  West,  9  Ind.  74; 
Dubuque  County  v.  Dubuque  &c.  R. 
Co.,  4  G.  Greene  (Iowa)  1;  Leaven- 
worth Co.  V.  Miller,  7  Kans.  479, 
12  Am.  Rep.  425;  Slack  v.  Mays- 
ville  &c.  R.  Co.,  13  B.  Mon.  (Ky.) 
1;  Clark  v.  Janesville,  10  Wis.  136. 
But  see  Griffith  v.  Crawford  Coun- 


ty, 20  Ohio  609;  People  v.  State 
Treas.,  23  Mich.  499.  See  gener- 
ally Cass  v.  Dillon,  2  Ohio  St.  607; 
Clark  v.  Janesville,  10  Wis.  136; 
Sioux  City  V.  Weare,  59  Iowa  95, 
12  X.  W.  786.  A  restriction  as  to 
counties  does  not  apply  to  cities. 
Thompson  v.  Peru,  29  Ind.  305; 
Aurora  v.  West,  9  Ind.  74.  But  see 
as  to  township.  Harshman  v. 
Hates  Co.,  92  U.  S.  569,  23  L.  ed. 
747. 

-'  r'rettyman  v.  Supervisors,  19 
111.  406,  71  Am.  Dec.  230;  Thomp- 
son v.  Peru,  29  Ind.  305;  Slack  v. 
Maysvil'le  &c.  R.  Co.,  13  B.  Mon. 
(Ky.)  9;  Police  Jury  v.  McDon- 
ogh,  8  La.  Ann.  341. 


415  PUBLIC  AID  §  1002 

town,  or  township,  by  vote  of  its  citizens  or  otherwise,  to  be- 
come a  stockholder  in  an}'  joint  stock  company,  corporation,  or 
association  \vhatever :  or  to  raise  money  or  loan  its  credit  to,  or 
in  aid  of.  any  such  company,  corporation,  or  association,"  was 
held  not  to  prohibit  the  let^^islature  from  authorizing  a  city  to 
issue  its  bonds  in  payment  of  a  loan  of  ten  million  dollars,  to  be 
expended  in  the  construction  of  a  railroad  l}'ing  almost  entirely 
outside  the  state. -^  But  where  there  is  an  express  limitation 
upon  the  power  of  a  public  corporation  the  legislature  can  not 
confer  upon   it   authority  to  grant  aid   to  railroad   companies. ^'^ 

§  1002  (819).  Constitutional  restrictions  operate  prospective- 
ly.— The  general  rule  is  that  constitutional  provisions  operate 
prospectively  and  not  retroactively.  Under  this  rule  it  is  held  that, 

22  Walker  v.  Cincinnati,  21  Ohio  ation.  Pleasant  Tp.  v.  Aetna  Life 
St.  14,  8  Am.  Rep.  24.  But  see  At-  Ins.  Co.,  138  U.  S.  67,  11  Sup.  Ct. 
kinson  v.  Board,  18  Idaho  282,  108  215,  34  L.  cd.  864.  And  a  scheme 
Pac.  1046,  28  L.  R.  A.  (N.  S.)  412;  by  which  a  municipal  corporation  is 
Pleasant  Tp.  v.  Aetna  L.  Ins.  Co.,  to  issue  bonds  for  the  larger  part 
138  U.  S.  67,  11  Sup.  Ct.  215,  34  L.  of  the  cost  of  a  tunnel  to  be  used 
ed.  864;  Taylor  v.  Ross  County,  23  mainly  by  a  railroad  companj-,  with 
Ohio  St.  22.  option   to   purchase,   has   been    held 

23  See  Garland  v.  Montgomery  to  contravene  a  constitutional  pro- 
County,  87  Ala.  223,  6  So.  402;  At-  vision  against  the  municipalitj^ 
kinson  v.  Board,  18  Idaho  282,  108  lending  its  credit  to  any  corpor- 
Pac.  1046,  28  L.  R.  A.  (N.  S.)  412:  ation.  Lord  v.  Denver,  58  Colo.  1. 
Colburn  v.  Chattanooga  &c.  R.  Co..  143  Pac.  284.  2  L.  R.  A.  1915B,  306. 
94  Tenn.  43,  28  S.  W.  298.  .\  stat-  But  compare  Haenssler  v.  St.  Louis, 
ute  of  Ohio  which  authorized  a  cer-  205  Mo.  656.  103  S.  W.  1034;  Sun 
tain  township  to  construct  a  few  Pub.  &c.  Assn.  v.  New  York.  152  N. 
miles  of  railroad  within  its  limits.  Y.  257,  46  N.  E.  499,  37  L.  R.  A.  788; 
intended  to  ultimately  form  part  of  Admiral  Realty  Co.  v.  New  York, 
a  continuous  line  of  road  to  be  206  N.  Y.  110,  99  N.  E.  245.  Ann. 
operated  and  equipped  by  private  Cas.  1914A.  1054;  Lehigli  \'al.  R. 
capital,  was  held  to  violate  a  con-  Co.  v.  Canal  Board,  204  N.  Y.  471. 
stitutional  provision,  which  pro-  97  N.  E.  964.  Ann.  Cas.  1913C.  1228; 
hibits  the  general  assemblj^  from  Walker  v.  Cincinnati,  21  Ohio  St. 
authorizing  any  county,  city,  town  14,  8  Am.  Rep.  24;  Churchill  v. 
or  township  to  become  a  stock-  Grant's  Pass,  70  Ore.  283,  141  Pac. 
holder  in  any  private  corporation.  164:  Brooke  v.  Philadelphia,  162 
or  to  raise  money  for  or  loan  its  Pa.  St.  123,  29  Atl.  387.  24  L.  R.  A. 
credit  to  or  in  aid  of  such  corpor-  781. 


i-  1002 


RAir>R().\nR 


416 


Avherc  there  is  a  statute  in  force,  a  constitutinnal  ])r(i\isi()n 
adopted  after  proceedings  resulting  in  a  contract  were  had  under 
the  statute,  does  not  invalidate  or  impair  the  validity  of  such 
]>roceeding's.-''  If.  however,  a  constitutional  ])r()\ision  is  adopted 
before  proceedings  are  taken  under  the  statute,  tlie  i)roceedings 
are  not  effective.-'"'  Constitutional  or  statutory  provisions  may, 
however,  be  so  worded  as  to  affect  ])rior  ])roceedings,-®  but  con- 
tract rights  can  not  be  impaired. 


-••  Norton  V.  Brownsville.  129  U. 
S.  479.  9  Sup.  Ct.  ill.  2>1  L.  cd.  774, 
26  Am.  &  Eng.  Corp.  Cas.  583; 
Aspinwall  v.  Daviess  County,  22 
How.  (U.  S.)  364.  16  L.  ed.  296; 
Wadsworth  v.  Supervisors,  102  U. 
S.  534.  26  L.  ed.  221;  Scotland 
County  V.  Hill.  132  U.  S.  107.  10 
Sup.  Ct.  26,  7)7)  L.  ed.  261;  Callaway 
County  V.  Foster,  93  U.  S.  567,  23 
L.  ed.  911;  Henry  County  v.  Nico- 
laj',  95  U.  S.  619,  24  L.  ed.  394; 
Schuyler  County  v.  Thomas,  98  U. 
S.  169.  25  T..  ed.  88;  Cass  County 
v.  Gillett,  100  U.  S.  585,  25  L.  ed. 
585;  Ralls  County  v.  Douglass.  105 
U.  S.  728.  26  L.  ed.  957.  See  Green 
County  v.  Conness.  109  U.  S.  104. 
3  Sup.  Ct.  69,  27  L.  ed.  872;  Liv- 
ingston County  v.  First  Nat.  Bank, 
128  U.  S.  102.  9  Sup.  Ct.  18,  32 
L.  ed.  359.  Contra  State  v.  Dallas 
Co.  &c..  12  Mo.  329;  State  v. 
County  Court.  51  Mo.  522;  State  v. 
Gurroutte.  67  Mo.  445.  See  also 
Decker  v.  Hughes.  68  111.  ?>?,\ 
Maxcj'  v.  Williamson  Co.,  72  111. 
207;  Board  v.  Bolton.  104  111.  220; 
Mason  v.  Shawneetown,  11  111.533; 
Knox  County  v.  Ninth  Nat.  Bank, 
147  U.  S.  91,  13  Sup.  Ct.  267,  37 
L.  ed.  93;  Nelson  v.  Haywood  Co., 
87  Tenn.  781,  11  S.  W.  885,  4  L.  R. 
A.  648. 


-•''  Concord  v.  Robinson.  121  U.  S. 
165.  7  Sup.  Ct.  937,  30  L.  ed.  885; 
Citizens'  Sav.  &c.  Assn.  v.  Perry 
Countj',  156  U.  S.  692,  15  Sup.  Ct. 
547.  39  L.  cd.  585.  See  also  Buf- 
falo &c.  R.  Co.  v.  Falconer,  103 
U.  S.  821.  26  L.  ed.  471. 

-'■'  Wadsworth  v.  Supervisors.  102 
U.  S.  534.  26  L.  ed.  221;  Railroad 
Co.  v.-  Falconer,  103  U.  S.  821,  26 
L.  ed.  471.  Upon  the  general  sub- 
ject, see  Supervisors  v.  Galbraith. 
99  U.  S.  214,  25  L.  ed.  410;  Fair- 
field v.  Gallatin  County.  100  U.  S. 
47.  25  L.  ed.  544;  Slack  v.  Mays- 
villc  &c.  R.  Co.,  13  B.  Mon.  (Ky.) 
1;  State  v.  Clark,  23  Minn.  422; 
State  V.  Green  Co.,  54  Mo.  540; 
Dodge  V.  Platte  Co..  16  Hun  (N. 
Y.)  285;  Fosdick  v.  Perrysburg,  14 
Ohio  St.  472.  It  was  held,  in  Louis- 
ville V.  Savings  Bank,  104  U.  S. 
469,  26  L.  ed.  775,  that  the  consti- 
tution of  Illinois,  adopted  on  July 
8,  1870.  did  not  invalidate  bonds 
issued  in  pursuance  to  a  vote  of 
the  township  on  the  same  day  that 
the  constitution  was  adopted,  al- 
though it  provides  that  "no  county, 
city,  township  or  other  municipal- 
ity shall  ever  become  a  subscriber 
to  the  cajiital  of  an\-  railroad  or 
I)rivate  corporation,  or  make  dona- 
tion to  or  loan  its  credit  in   aid  of 


417 


PUBLIC  AID 


§1003 


§  1003  (820).  Limitation  upon  the  power  of  municipalities  to 
incur  debts. — A  constitutional  provision  prohibiting"  a  municipal 
corporation  from  aiding  a  railroad  by  subscriptions  or  donations 
would,  it  is  hardly  necessary  to  say,  place  it  beyond  the  power 
of  the  legislature  to  empower  municipal  corporations  to  grant 
such  aid.^^  But  a  provision  of  the  constitution  prohibiting  mu- 
nicipal corporations  from  incurring  a  debt  in  aid  of  a  corporation 
does  not  necessarily  prohibit  the  municipalities  from  giving  aid 
to  railroad  companies.  The  effect  of  such  a  provision  is  to  pre- 
clude the  municipalities  from  incurring  a  debt,  but  it  does  not 
preclude  them  from  raising  money  by  taxation  in  aid  of  railroad 
companies.  There  can  be  no  debt  created,  but  a  donation  or  sub- 
scription may  be  authorized. ^^     In  jurisdictions  where  munici- 


snch  corporation,"  unless  the  sub- 
scription shall  "have  been  author- 
ized under  existing  laws,  by  a  vote 
of  the  people  prior  to  such  adop- 
tion." The  court  says  that  they 
will  presume  the  vote  upon  the 
question  of  levj'ing  the  tax  to  have 
been  completed  before  the  close  of 
the  day,  since  the  meeting  for  an 
election  was  called  for  nine  o'clock 
in  the  morning  and  only  fifty-two 
votes  were  cast.  But  the  supreme 
court  of  Illinois  holds  that  where 
the  issuance  of  railroad  aid  bonds 
is  authorized  by  a  vote  at  the  same 
election  at  which  this  amendment 
to  the  constitution  was  adopted, 
the  issue  is  unconstitutional.  Peo- 
ple V.  Bishop,  111  111.  124,  53  Am. 
Rep.  605.  The  party  asserting  the 
validity  of  bonds  issued  after  this 
provision  referred  to  in  the  above 
case  took  effect  is  held  to  have 
the  burden  of  proof  to  show  that 
they  come  within  the  exception. 
Williams  v.  People,  132  111.  574.  24 
N.  E.  647. 

27  Norton  v.  Brownsville,  129  U. 
S.  479,  9  Sup.  Ct.  322,  32  L.  ed.  774; 
Wadsworth  v.  Supervisors,  102  U. 


S.  534,  26  L.  ed.  221;  Buffalo  &c. 
R.  Co.  V.  Falconer,  103  U.  S.  821, 
26  L.  ed.  471;  Kelley  v.  Milan,  127 
U.  S.  139,  154,  8  Sup.  Ct.  1101,  32 
L.   ed.   11;   Mayor   &c.  v.    Gilmore, 

21  Fed.  870;  Taxpayers  &c.  v.  Ten- 
nessee &c.  R.  Co.,  11  Lea  (Tenn.) 
329;  List  v.  Wheeling,  7  W.  Va. 
501.  See  also  Southern  R.  Co.  v. 
Hartshorn,  162  Ala.  491,  50  So.  139; 
Underground  R.  Co.  v.  New  York, 
116  Fed.  960. 

-8  Aspinwall    v.    Daviess    County, 

22  How.  (U.  S.)  364,  16  L.  ed.  296; 
Concord  v.  Portsmouth  Savings 
Bank,  92  U.  S.  625,  23  L.  ed.  628; 
Lafayette  &c.  R.  Co.  v.  Geiger,  34 
Ind.  185;  Harney  v.  Indianapolis 
&c.  R.  Co.,  32  Ind.  244;  Aurora  v. 
West,  9  Ind.  74;  Dronberger  v. 
Reed,  11  Ind.  420;  Evansville  &c. 
Co.  V.  Evansville,  IS  Ind.  395; 
Board  v.  Bright,  18  Ind.  93;  Fal- 
coner V.  Buffalo  &c.  R.  Co.,  69 
N.  Y.  491.  See  also  as  to  appro- 
priation for  a  claim  founded  on 
justice  and  equity,  Lehigh  Val.  R. 
Co.  V.  Canal  Board,  204  N.  Y.  471, 
97  N.  E.  964,  Ann.  Cas.  1913C,  1228. 


^  1 004 


RAILROADS 


418 


I^'ilities  are  forbidden  to  incur  an  indebtedness  the  railroad  com- 
])any  is  not.  as  it  is  held,  entitled  to  the  money  imtil  it  is  col- 
lected.-" 

§  1004  (821).  Constitutional  questions — Delegation  of  legis- 
lative power. — It  is  a  well-known  principle  of  constitutional  law 
that  legislative  power  can  neither  be  surrendered  nor  delegated. 
This  principle,  however,  does  not  forbid  the  legislature  from  en- 
acting a  law  authorizing  the  inhabitants  of  a  locality  to  deter- 
mine by  ballot,  petition  or  otherwise,  whether  they  will  lay  a 
tax  upon  themselves  to  aid  a  railroad  company  by  donation  or 
subscription.^"  In  enacting  a  general  law  authorizing  public  cor- 
porations to  aid  railroad  companies,  there  is  no  delegation  of 
legislative  power,  nor  is  the  taking  elTect  of  the  law  made  to 
depend  upon  the  act  or  authority  of  any  other  persons  or  bodies 
than  that  of  the  lawmakers.  The  law  is  effective  w^hen  it  leaves 
the  hands  of  the  law-making  power,  and  all  that  is  left  to  the 
inhabitants  of  a  locality  is  to  determine  whether  they  will  avail 
themselves  of  the  provisions  of  the  law.^^    If,  however,  the  legis- 


29  Pope  V.  Board.  51  Fed.  769: 
Bittinger  v.  Bell,  65  Ind.  445;  Board 
V.  Louisville  &c.  R.  Co.,  39  Ind. 
192;  Sankey  v.  Terre  Haute  &c.  R. 
Co.,  42  Ind.  402;  Petty  v.  Myers, 
49  Ind.  1;  Jager  v.  Doherty.  61 
Ind.  528;  Board  v.  State,  115  Ind. 
64,  4  N.  E.  589,  17  X.  E.  855. 
Where  aid  is  voted  and  an  addi- 
tional levy  is  required  a  tax-payer 
may  have  mandamus  to  compel  the 
proper  officers  to  make  the  addi- 
tional levy  of  taxes.  Board  v. 
State,  86  Ind.  8.  See  also  Board 
v.  Montgomery,  106  Ind.  517,  6 
N.  E.  915;  Board  v.  State.  109  Ind. 
596,  10  N.  E.  625;  State  v.  Board. 
166  Ind.  162,  76  N.  E.  986.  It  is 
held,  that  where  a  tax  is  levied  the 
railroad  companj'  acquires  such  an 
interest  therein  as  will  pass  to  a 
company    with     which     it     consoli- 


dates.    Scott  V.  Hansheer,  94   Ind. 
1;  Pope  V.  Board,  51   Fed.  760. 

30  Baltimore  &c.  R.  Co.  v.  Jef- 
ferson Co.,  29  Fed.  305;  Stein  v. 
Mobile,  24  Ala.  591;  Hobart  v.  Su- 
pervisors, 17  Cal.  23;  Cotton  v. 
Leon  Co.,  6  Fla.  610;  Lafayette  &c. 
R.  Co.  V.  Geiger,  34  Ind.  185,  220; 
Slack  V.  MaysviUe  &c.  R.  Co.,  13 
B.  Mon.  (Ky.)  1;  Police  Jury  v. 
McDonogh.  8  La.  Ann.  341;  Clarke 
v.  Rochester,  24  Barb.  (N.  Y.)  446; 
Starin  v.  Genoa,  23  N.  Y.  439;  Cin- 
cinnati &c.  R.  Co.  v.  Clinton  Co.. 
1  Ohio  St.  11;  Moers  v.  Reading, 
21  Pa.  St.  188;  Louisville  &c.  R. 
Co.  v.  County  Court,  1  Sneed 
(Tenn.)   637,  62  Am.  Dec.  424. 

■1  .\spinwall    v.    Daviess    Co.,    22 
How.    (U.   S.)    364.   16   L.   ed.  296 
Hoard     v.     Spitler,     13     Ind.     235 
Tiiompson    V.    Peru,    29    Ind.    305 


419  PLBLIC  AID  §  1005 

lature  should  provide  that  a  law  should  take  effect  only  in  the 
event  that  the  people  should  vote  in  favor  of  its  taking  effect  the 
enactment  would  not  be  valid,^^  but  this  is  a  very  different  thing 
from  enacting  a  general  law  and  simply  leaving  it  to  localities  to 
take  action  under  it. 

§  1005  (822).  Submission  to  vote. — The  general  legislative 
practice  is  to  provide  for  submitting  the  question  of  granting  aid 
to  a  railroad  to  the  people  and  allowing  them  to  determine,  either 
by  ballot  or  by  petition,  whether  aid  shall  be  granted,  but  where 
there  is  no  constitutional  provision  requiring  it  the  legislature 
may  authorize  a  municipality  to  grant  aid  without  submitting 
the  matter  to  the  people.  The  subject  is  essentially  legislative, 
and  the  legislature  is  not  bound  to  provide  for  a  vote  or  petition 
by  the  inhabitants  of  the  municipality,  except  where  a  provision 
of  the  constitution  so  requires. ^^  If  the  legislature  does  provide 
for  a  submission  to  vote  or  petition,  then  there  must  be  an  elec- 
tion held  as  the  enabling  act  requires  or  such  a  petition  as  the 
act  prescribes.^* 

§  1006  (823).  Submission  to  popular  vote — Constitutional  re- 
quirements.— Where  the  constitution  requires  the  question  of 
granting  aid  to  a  railroad  company  to  be  submitted  to  a  vote  of 
the  taxpayers  or  inhabitants  of  the  municipality,  the  requirement 
is  mandatory  and  must  be  obeyed.  The  legislature  in  such  a 
case  has  no  power  to  authorize  the  grant  of  aid  without  sub- 
mitting the  question  to  the  people  of  the  locality.     Where  a 

Robinson  v.  Schenck,  102  Ind.  307,       111.  218;  Quincy  &c.  R.  Co.  v.  Mor- 

1  N.  E.  698.  ris,  84   111.   410;   McCallie   v.    Chat- 

32  State   V.   Young,  26   Iowa    122,       tanooga,  3  Head  (Tenn.)  317.     But 

2  Am.  &  Eng.  R.  Cas.  348.  see  Union   Bank  v.  Board  Comrs., 

33  Ralls  County  v.  Douglass,   105       116  N.  Car.  339.  21  S.  E.  410. 

U.  S.  728,  26  L.  ed.  957;  Thomson  3*  See    Rich   v.    Mentz  Twp.,   134 

V.  Lee  Co.,  3  Wall.  (U.  S.)  327,  18  U.  S.  632.  10  Sup.  Ct.  610,  33  L.  ed. 

L.  ed.  177;   Long  v.  New  London,  1074;    Lewis    v.    Bourbon    Co.,    12 

9  Biss.  (U.  S.)  539;  Livingston  Co.  Kans.    186;   Jacksonville    R.    Co.   v. 

V.   Darlington,    101    U.   S.   407,   415,  Virden.  104  111.  339.     See  also  Stern 

25  L.  ed.  1015;  Keithsburg  v.  Frick,  v.  Fargo  (N.  Dak.),  122  N.  W.  403, 

34  111.  405;  Marshall  v.  Silliman,  61  26  L.  R.  A.  (N.  S.)  665. 


§  1007  RAII.ROADS  420 

specified  number  of  votes  in  favor  of  the  aid  is  required  by  the 
constitution  in  order  to  authorize  the  municipality  to  grant  the 
aid  it  is  not  in  the  power  of  the  legislature  to  provide  that  aid 
may  be  granted  unless  the  vote  prescribed  is  given  in  lavor  of 
granting  the  aid.^^  There  is  a  difference  between  cases  where 
the  statute  assumes  to  authorize  municipal  officers  to  grant  aid 
without  submitting  the  question  to  a  vote  and  cases  where  the 
statute  provides  for  a  submission,  but  the  municipal  of^cers  do 
not  submit  the  question  to  the  voters  as  the  statute  requires.  If 
it  appears  on  the  face  of  the  statute  that  the  legislature  has  as- 
sumed to  confer  authority  upon  the  municipal  of^cers  to  grant 
aid  without  submitting  the  matter  to  the  voters  of  the  locality 
there  can  be  no  power,  since,  if  the  statute  be  in  conflict  with  the 
constitution,  it  is  void,  and  a  void  statute  cannot  confer  authority 
or  right.  In  such  a  case  there  can  be  no  estoppel,  for  when  the 
constitution  is  consulted  and  the  statute  tested  by  it  the  absence, 
of  legislative  power  is  at  once  revealed.  No  person  can  be  heard 
to  say  that  he  was  ignorant  of  the  constitution  or  the  statute 
under  which  public  corporations  are  organized,  so  that  there  is 
no  ground  upon  which  an  estopped  can  be  founded.  Where, 
however,  the  legislature  obeys  the  constitutional  mandate  and 
provides  for  a  submission  of  the  question  to  the  voters  of  the 
municipality,  and  the  municipal  of^cers  do  not  follow  the  pro- 
visions of  the  statute,  then  there  is  reason  for  holding  that  there 
may  be  an  estoppel  in  cases  where  the  other  elements  essential 
to  the  existence  of  an  estoppel  are  present. 

§  1007   (823a).     Necessity  of  regularity  in  the  election. — The 
rule  demanding  a  strict  compliance  with  statutory  requirements 

•"■■''  PTill  V.  Memphis,  134  U.  S.  1^8.  i;rinci]ilcs  declared  bj'  tlie  cases  be- 

10  Sup.  Ct.  562,  33  L.  ed.  887;  Hill  low  cited  were  applied,  Police  Jury 

V.    Memphis,   23   Fed.   872.      In   the  v.  Rritton,  15  Wall.  (U.  S.)  566,  21 

case  of  Hill  v.  Memphis,  134  U.  S.  L.    ed.    252;    Kelley   v.    Milan.    127 

198,  10  Sup.  Ct.  562,  33  L.  ed.  887,  U.  S.  139,  8  Sup.  Ct.  1101,  32  L.  ed. 

tlic  court  held  that  a  vote  of  two-  77:  Young  v.  Clarendon  Township, 

thirds   of  the    electors    in   favor   of  132  U.   S.  340,   10  Sup.   Ct.   107,  33 

subscribing  for  the  stock  of  a  rail-  T,.    ed.    356;    Claiborne    County    v. 

road    company    did    not    authorize  Brooks,    111   U.   S.   400,   4   Sup.   Ct. 

the   municipal    authorities    to   issue  489,  28  L.  ed.  470. 
bonds     of    the     municipality.       The 


421  PUBLIC  AID  §  1008 

in  making  subscriptions  to  the  capital  of  railroad  companies  ap- 
plies with  particular  force  to  the  manner  of  holding  the  election 
to  authorize  the  subscription.  The  purpose  of  the  election  is  to 
ascertain  the  public  mind  on  the  proposed  question  and  the  legis- 
lative method  is  presumed  the  best  method  of  obtaining  this  re- 
sult. Thus,  where  registration  of  voters  is  required,  and  no 
registration  is  had,  it  has  been  held  that  the  election  will  be  de- 
clry/ed  illegal  and  the  bonds  invalid.'"''  So,  where  a  statute  re- 
quired an  election  board  composed  of  three  judges  and  two 
clerks,  a  bond  election  held  by  one  judge  with  one  clerk  was  held 
to  confer  no  authority  on  the  municipality  to  issue  the  bonds.'' 
AVhere,  however,  the  statute  is  silent  as  to  the  manner  of  hold- 
ing and  conducting  the  election,  then  it  may  be  conducted  in  the 
manner  prescribed  by  the  law  of  the  organization  of  the  body  in 
which  it  is  held.^^ 

§  1008  (823b).  Form  of  the  ballot. — Great  strictness  as  to  the 
form  of  the  ballot  is  not  demanded.  It  is  generally  held  sufficient 
if  the  ballot  substantially  complies  with  the  statute  and  does  not 
tend  to  deceive  the  voter,  and,  when  voted,  shows  his  prefer- 
ence.^^ Thus,  it  has  been  held  that  votes  "For  subscription" 
and  "Against  subscription"  did  not  substantially  depart  from  the 
statutory  requirement  that  the  ballot  should  be  "Subscription" 
and  "No  subscription."*"  And  in  another  case,  where  the  statu- 
tory form  of  ballot  for  those  opposed  to  the  issue  of  bonds  was 
"Against  taxation,"  it  was  held  proper  to  count  the  ballots  of 

36  People  V.    Santa   Anna,   67   Til.  Co.,    75    Iowa    140,   39    X.   W.   234; 

57;    People   v.    Laenna,    67    III.    65.  Jacksonville  &c.  R.  Co.  v.  Virden, 

See  also  Pacific  Imp.  Co.  v.  Clarks-  104  111.  339. 

dale,  74  Fed.  528;  Kentucky  Un.  R.  ss  People  v.  Dutcher.  56  111.  144. 

Co.  v.   Bourbon    Co.,  85   Ky.  98,   2  ^^  State  v.  Bissel.  4  Green.  (Iowa) 

S.  W.  687;  Wilmington  &c.  R.  Co.  328:    West    v.    Whitaker.    c,7    Iowa 

V.  Onslow  County,  116  N.  Car.  563,  598. 

21   S.   E,  205.  ^0  Claybrook  v.  Rockingham  Co.. 

•'''  Chicago  &c.  R.  Co.  v.  Mallory,  114  N.  Car.  453,  19  S.  E.  593.     But 

101   Til.  583.    And  it  must  be  called  ballots    must   be    furnished    by   the 

by   proper   officers.      Cedar    Rapids  designated   authorities.      Current  v. 

&c.  R.  Co.  V.  Boone  Co..  34  Iowa  T.uther,  164  Tnd.  252.  71  X.  E.  556. 
45;   Young  v.  Webster  City  &c.  R. 


§  1009  RAILROADS  422 

those  opposed  to  the  proposition  which  bore  the  words  "against 
taxation  for  the  benefit  of  railroad  companies  or  any  other 
r:  ies  to  the  indebtedness  of  the  poor  man."*^ 

§  1009.  Form  of  ballot — Double  question. — Two  or  more  dis- 
tinct and  separate  cannot,  however,  be  combined  and  submitted 
as  a  single  question.*-  To  permit  such  a  course  would  not  only 
tend  to  mislead  but  would  also  deprive  the  voters  of  the  rii^ht 
and  power  to  vote  for  or  against  each  distinct  proposition  or 
question  submitted.  So,  for  the  same  or  similar  reasons,  a  prop- 
osition in  the  alternative  to  aid  one  railroad  or  another  has  been 
held  bad.*^ 

§  1010  (824).  Constitutional  power — Compelling  public  cor- 
porations to  aid  raihroad  companies. — The  power  of  the  legisla- 
ture over  public  corporations  is,  as  we  have  seen,  very  great.  It 
seems  to  be  a  necessary*  conclusion  from  the  rule  asserted  by  the 
weight  of  authority-  that  the  legislature  may,  without  consulting 
the  citizens  of  a  locality',  compel  them  to  tax  themselves  to  aid 
public  enterprises.**     Accordingly  it  has  been  held  that  it  may 

"  Cattell  V.  Lowry,  45  Iowa  478.  aided.      But   see   Loui5\-ille    &c.    R. 

*-  Fulton    Count}-    v.    Mississippi  Co.  v.  County  Ct.,  1  Sneed  (Tenn.) 

&c.  R.  Co.,  21  111.  373:  Williams  v.  637.  62  .\m.  Dec.  424. 
People,  132  111.  574,  24  X.  E.  647:  « This  is  the  general  rule.     Mar- 

-    -ies  V.  Parke  County.  39  Ind.  tin  v.  Dix,  52  Miss.  53.  24  Am.  Rep. 

-    forth  V.   Rutherford   R.    &c.  661 :    New  Orleans  v.   Clark,  95  U. 

Co.,  96  X.   Car.  535,  2   S.   E.  361;  S.  644,  654.  24  L.  ed.  521:  United 

Stem   V.    Fargo.    18    X.    Dak.   289,  States   v.   Memphis,  97  U.   S.  284. 

122  X.  W.  403,  26  L.  R.  A.  (X.  S.)  24   L.   ed.   937;    Livingston    Co.   v. 

665.  and  note  where  additional  au-  Darlington,  101  U.  S.  407.  25  L.  ed. 

thorities   are   cited,   including  Tol-  1015:  Xapa  Valley  R.  Co.  v.  Napa 

son    V.    St.    Tammany    Parish.    119  County,   30    Cal.   435:    Madera    &c. 

La.  215,  43  So.  1011.'  Dist.  In  re,  92  Cal.  296.  14  L.  R.  A. 

*3  Jones    V.    Hurlburt,    13    Xebr.  755.    and    note,    27    Am.    St.    106; 

125,  13   X.   W.  5;   Xorth  v.   Platte  Marks    v.    Purdue    University.    37 

County,    29    Xebr.    447.   45    X.    W.  Ind.  155;  Jewell  v.  Weed,  18  Minn. 

692,  26  Am.  St.  395    (but  railroad  272;   Gordon   v.   Comes,  47   X.   Y. 

aid    bonds    may    be    valid    in    the  608:    Bass   v.    Fountleroy,    11    Tex. 

hands  of  bona  fide  purchaser).   In-  698:    Walker    v.    Tarrant    Co.,    20 

deed,    such   a  proposition   assumes  Te.x.  16.     .Although  it  seems  to  be 

that    one    or    the    other    must    be  an    arbitrary    rule    to    compel    tax- 


423 


PUBLIC  AID 


§1011 


inhabitants.- 
:.nd  but  lew  aiic 


_vcl^.i:^c    it- 


§1011   (825).     Sccpe 


.ef.s.ative  power. —  .ne  scope  oi 


tion  is  a  legislative 

stituticns.'  p-       -        - 
most  zny  5:r:.:. 
ever,  inherer.:   1 
power  to  raise  reve: 
itself,  insomuch  as  i^x^- 
emmental  t»iir!x>5e5.    A? 


paj-ers  to   :    -  -         -  m  or- 

der to  aii  -  es.  it  i> 

diffictilt  tc   ^r-  -         : 

a    necessary    :  - 

settled  pmicipie.    x>ui  see  v.aoi~- 
V.  People.  140  IlL  21.  29  X.  E.  5- 
Cairo  &C.  R.  Co.  v.  Sps.r-3.  77  Z... 
5T>5:  Horton  r.  Th— — ^    "    "1  X.  Y. 

*3  Xapa    Valley    ?  " ' 

Co..  30   Cal.   -i35.  ^ 

authorities  tc  -  :     - 

submission  o:    "  -" 

people  may  amonnt  to  a    : 
sory  asse5=~:":      '   -"'::- 
right  of  :'  -  - 

r!  s  s     r :    " '  -        ~ "  .  " 

Perr::-  .      S     5-      ;^ 

564.  27  L.  ed.  2yS: 
Douglass.  105  U.  S.  ■-^.  _:  1.  ei 
957:  Thomson  v.  Lee  County.  5 
Wall,  a'-  S.^  327.  18  L,  ed.  177; 
Long  V.  New  London.  9  Biss.  (U. 
S.'J  539:  McCallie  v.  Chattanooga, 
3  Head  vTenn.">  317.  And  ever, 
where  the  state  constituti: 
hibits  the  t>assaee  of  laws  :::   ;..; 


enact  a  valid  'a"w  oermrr- 


V.  Rogers  1  -     - 

U.  5.  523.  2:   _    ;    .  .  -1 

«  Cairo  &c-  R.  Co.  v.  Spsrta,  77 
:       505:   W  "    rerts.   88 

:i:  Syke^  55  Miss. 

115:  Pe   :  :  53  X.  Y. 

!??.    !'    --.:::      -.:      -"        Hrrrrr:    v. 
:n.    71    X.    Y.    5:;        5   t 
C      ..^cr  V.  People.  140  Ii:.  ::.  :- 
X.  E-  546:  Post  v.  Pulaski  Co.,  49 


r.chts  of  th- 


,Ki!;-~  ^r-d  7.S  to 


^'  1012  RAILROADS  424 

building  a  railroad  is  devoting  it  to  a  pul)lic  purpose,  it  neces- 
sarily follows  that  the  legislature  has  very  great  and  extensive 
power  over  the  subject  of  granting  aid  to  railroad  companies. 
So  great  and  extensive  is  this  power  that  it  is  competent  for  the 
legislature  to  authorize  a  municipality  to  give  aid  to  a  railroad, 
although  the  railroad  may  not  be  located  within  the  territorial 
limits  of  the  municipality.  The  legislature,  where  no  constitu- 
tional limitation  prohibits,  may  doubtless  group  counties  and 
townships  together,  or  may  separate  them  into  districts  for  the 
purpose  of  authorizing  them  to  grant  aid  to  railroad  companies.*" 
I'he  decisions  which  lay  down  the  rule  that  the  legislature  may 
create  taxing  or  assessment  districts  support  the  rule  we  have 
stated.*-' 

§  1012  (826).  Scope  of  the  legislative  power — Illustrative 
cases. — The  power  of  the  legislature  to  authorize  a  municipal 
corporation  to  aid  in  the  construction  of  a  railroad  was  recognized 
in  a  case  wherein  it  was  held  that  the  action  of  the  municipality 
granting  aid  to  a  railroad  company,  under  a  statute  providing 
that  townships'  might  subscribe  to  the  stock  of  any  railway 
company,  "building  or  proposing  to  build  a  railroad  into,  through 
or  near  such  township,"  was  conclusive  upon  the  courts,  al- 
though the  railroad  was  nine  miles  distant  from  the  township. •'^ 
Where  the  building  of  a  road  will  tend  to  increase  the  business 

4-  McFerron  v.  Alloway,  14  Bush  ton,  101  U.  S.  407,  25  L.  ed.   1015; 

(Ky.)   580.     See  also  Breckenridge  Burr    v.    Carbondale.    Id    111.    455: 

County  V.  McCrackcn,  61  Fed.  191.  Shaw  v.  Dennis,  10  111.  405;  Hens- 

48Gilson   V.    Board,    128   Ind.   65,  ley  Township  v.  People,  84  111.  544; 

27    N.    E.    234,    11    L.    R.    A.    835:  Waterville     v.     Kennebec     Co.,     59 

Challis    V.    Parker,    11    Kans.    394;  Maine   80.     See    generally   Merrick 

Hingham    &c.    Turnpike    Corp.    v.  v.  Amherst,   12  Allen   (Mass.)   500; 

County  of  Norfolk,  6  Allen  (Mass.)  Litchfield  v.  Vernon,  41  N.  Y.  123. 
353;    Howell   v.    Bufifalo,   11   N.    Y.  49  Kirkbride    v.    Lafayette    Coun- 

267,    273;    Scovill    v.    Cleveland,    1  ty,   108  U.   S.  208,  2  Sup.   Ct.   501, 

Ohio    St.    126:    Hill    v.    Higdon,    5  27  L.  ed.  705.     See  also  Brocaw  v. 

Ohio  St.  243,  245,  67  Am.  Dec.  289,  Board,  1Z  Ind.  543;  Nixon  v.  Camp- 

and  note:  Philadelphia  v.  Field,  58  bell,    106   Ind.   47,   4   N.    E.   296,    7 

Pa.   St.   320;    Langhorne  v.   Robin-  N.  E.  258;  Walker  v.  Cincinnati,  21 

son.  20  Grat.  (Va.)  661.     See  gen-  Ohio  St.  14,  8  Am.  Rep.  24. 
orally    Livingston    Co.    v.    Darling- 


425 


PUBLIC  AID 


§1012 


of  other  roads  leading  to  the  municipality  it  is  held  that  aid  may 
be  given,  although  the  road  aided  lies  at  a  distance  from  the 
municipality  authorized  to  aid  it."'"  It  has  also  been  held  that 
where  counties  through  which  a  proposed  road  will  run  are 
authorized  to  aid  the  construction  of  it  or  its  connecting  lihes, 
aid  in  the  construction  of  the  latter  may  lawfully  be  extended, 
as  soon  as  the  construction  of  such  a  connecting  line  has  been 
duly  authorized  by  charter,  and  a  contract  for  its  construction  has 
been  entered  into.^^  Municipalities  may  exercise  the  same 
privilege  of  taking  stock  to  aid  in  building  branches  of  a  railroad 
that  they  may  exercise  in  aid  of  the  main  road,  in  case  the  com- 
pany is  chartered  to  build  the  road  with  branches.^-  It  has  been 
lield  that  a  railroad  may  be  lawfully  aided  by  a  subscription  to 
its  stock,  although  it  lies  outside  the  state,^^  and,  indeed,  even  if 
it  lies  outside  the  country.^*  There  are  also  cases  holding  that 
the  legislature  may  confer  the  power  to  subscribe  to  a  corpora- 
tion not  in  existence,  but  to  be  subsequently  created.^^     A  pro- 


50  In  the  case  of  Van  Hostrup  v. 
Madison  City,  1  Wall.  (U.  S.)  291, 
17  L.  ed.  538,  it  was  held  that  au- 
thority "to  take  stock  in  any  char- 
tered company  for  making  a  road, 
or  roads,  to  said  city,"  empowered 
the  city  of  Madison  to  take  stock 
in  the  Columbus  and  Shelby  Rail- 
road, which  approached  no  nearer 
to  Madison  than  forty-six  miles 
distant,  at  which  point  it  connected 
with  another  road  running  to  that 
city. 

51  Kenicott  v.  Supervisors,  16 
Wall.  (U.  S.)  452,  21  L.  ed.  319. 

52  Tyler  v.  Elizabethtown  &c.  R. 
Co.,  9  Bush.  (Ky.)   510. 

53  Chicago  &c.  R.  Co.  v.  Otoe 
County,  16  Wall.  (U.  S.)  667,  21 
L.  ed.  375;  Quincy  &c.  R.  Co.  v. 
Morris,  84  111.  410;  State  v.  Charles- 
ton, 10  Rich.  (S.  Car.)  491.  See 
Falconer  v.  Buffalo  &c.  R.  Co.,  69 
N.    Y.    491;    Walker    v.    Cincinnati 


&c.  R.  Co.,  21  Ohio  St.  14,  8  Am. 
Rep.  24.  In  Moulton  v.  Evans- 
ville,  25  Fed.  382,  it  was  held  that 
the  constitution  of  Indiana  pre- 
sents no  obstacle  to  a  grant  by  the 
legislature  to  a  city  in  that  state 
of  power  to  aid  a  railroad  corpora- 
tion whose  road  lies  entirely  in 
other  states,  and  which  connects 
with  such  city  by  means  of  a  line 
of  boats  running  from  its  terminus. 

54  In  White  v,  Syracuse  &c.  R. 
Co.,  14  Barb.  (N.  Y.)  559,  it  is  held 
that  the  statute  of  New  York,  au- 
thorizing railway  companies  of  that 
state  to  subscribe  for  stock  in  the 
Great  Western  Railway,  Canada 
West,  is  constitutional. 

55  James  v.  Milwaukee,  16  Wall. 
(U.  S.)  159,  21  L.  ed.  267.  It  is 
held  that  the  provisions  of  a  gen- 
eral act.  conferring  on  counties, 
cities,  and  towns,  generally,  power 
to  make  donations  to  railroad  com- 


^  1013  KAILHOADS  426 

vision  ill  the  charter  of  a  raih-oad  coiii])any,  authoriziiiLj-  aii}-  town 
or  village  along  the  line  of  its  rotite  to  extend  aid  to  it.  will,  as 
it  has  been  held,  confer  stich  power  upon  a  village  which  conies 
into  existence  after  the  charter  is  granted.'^"  The  legislature  may 
authorize  sul)scriptions  to  aid  a  railroad  company  whose  charter 
empowers  it  to  carry  on  some  other  business  in  connection  with 
the  operation  of  its  road,  as  dealing  in  coal,  or  mining,^"  but  we 
suppose  that  it  is  only  in  so  far  as  the  business  is  of  a  public 
nature  that  aid  can  be  given  by  public  corporations.  It  has  been 
expressly  held  that  a  general  power  to  subscribe  aid  to  a  railroad 
may  be  exercised  by  making  a  subscription  to  the  stock  of  a 
company  chartered  to  build  and  operate  a  railroad,  even  though 
it  also  engaged  in  the  business  of  mining,  and  in  other  transac- 
tions expressly  authorized  by  its  charter.  And  bonds  issued  in 
pursuance  of  such  subscriptions  were  held  valid. ^^ 

§  1013  (827).  Power  to  aid  railroads — Statutory  authority. — 
Statutory  authority  is  essential  to  the  existence  of  power  in  a 
municipal  or  governmental  corporation  to  aid  railroad  com- 
panies by  donations  or  subscriptions.  Upon  this  point  there  is 
no  diversity  of  opinion.-"  In  the  absence  of  express  legislative 
enactment  the  power  cannot  exist  inasmuch  as  the  power  to  aid 
a  railroad  company  by  donations  or  subscriptions  is  not  an  in- 

panies,    practically    become    a    part  structing  the  railroad.     MacKenzie 

of  all  subsequent  charters  of  cities  v.  Wooley,  39  La.  Ann.  944,  3  So, 

and  towns.     Madry  v.  Cox,  Ti  Tex.  128. 

538,   11  S.  W.  541.     See  also  Mac-  •'^s  Randolpli    County   v.    Post,   93 

Kenzie    v.    Wooley,    39    La.    Ann.  U.  S.  502,  23  L.  ed.  957. 

944.  3  So.   128.  59  Kelley  v.  Milan.  127  U.  S.  139, 

sePcrrin  v.  New  London.  67  Wis.  8  Sup.  Ct.   1101.  32  L.  ed.  11;  Nor- 

416.  30  N.  W.  623.  ton  v.  Dyersbufg,  127  U.  S.  160,  8 

■'"'7  Kentucky  Improvement  Co.  v.  Sup.  Ct.  1111,  32  L.  ed.  85;  Young 

Slack,  100  U.  S.  648,  25  L.  ed.  609;  v.   Clarendon  Township,   132  U.  S. 

Randolph  County  v.  Post,  93  U.  S,  340.  10  Sup.  Ct.  107,  Zi  L.  ed.  356; 

502,   23    L.    ed.   957;    MacKenzie   v.  Concord    v.    Robinson.    121    U.    S. 

Wooley.  39  La.  Ann.  944,  3  So.  128,  165.  7  Sup.   Ct.  937.  30  L.  ed.  885; 

where    tlic    railroad    company    was  Daviess    County    v.    Dickinson.    117 

also  to  erect  and  operate  a  cotton  U.  S.  657,  29  L.  ed.  1026;  Lewis  v, 

compress.       But     the     subscription  Shreveport,   108   U.    S.   282,   2   Sup. 

must   be   used   only   to   aid   in   con-  Ct.    634.    27    L.    ed.    728;    Claiborne 


427 


PUBLIC  AID 


§1013 


herent  or  incidental  corporate  power.  Statutory  authority  to 
manage  or  control  the  afifairs  and  business  of  a  public  or  govern- 
mental corporation  is  not  sufficient  to  authorize  aid  to  a  railroad 
company.*^"  The  power  to  aid  railroad  companies  is  said  by  some 
of  the  authorities  to  be  an  extraordinary  power,  and  this  is  true. 
But,  while  the  power  is  not  an  ordinary  one,  yet  it  is  one  that  is 


County  V.  Brooks,  111  U.  S.  400, 
4  Sup.  Ct.  489,  28  L.  ed.  470;  South 
Ottawa  V.  Perkins,  94  U.  S.  260,  24 
L.  ed.  154;  Wells  v.  Supervisors, 
102  U.  S.  625,  26  L.  ed.  122;  Weight- 
man  V.  Clark,  103  U.  S.  256.  26  L. 
ed.  392;  Coloma  v.  Eaves,  92  U.  S. 
484,  23  L.  ed.  579;  St.  Joseph  Tp. 
V.  Rogers.  16  Wall.  (U.  S.)  644,  21 
L.  ed.  328:  Kenicott  v.  Super- 
visors. 16  Wall.  (U.  S.)  453,  21  L. 
ed.  319;  Thomson  v.  Lee  County, 
3  Wall.  (U.  S.)  327,  18  L.  ed.  177; 
Marsh  v.  Fulton  County,  10  Wall. 
(U.  S.)  676,  19  L.  ed.  1040;  Com- 
mercial Nat.  Bank  v.  Tola,  2  Dillon 
(U.  S.  C.  C.)  353;  Katzenberger  v. 
Aberdeen,  16  Fed.  745;  New  Or- 
leans &c.  R.  Co.  V.  Dunn,  51  Ala. 
128;  McCoy  v.  Briant,  53  Cal.  247; 
Bridgeport  v.  Housatonic  &c.  R. 
Co.,  15  Conn.  475;  Gaddis  v.  Rich- 
land Co.,  92  111.  119.  2,6  Cent.  L.  J. 
133;  Welch  v.  Post,  99  111.  471; 
Aurora  v.  West.  22  Ind.  88,  85  Am. 
Dec.  413;  Board  &c.  v.  McClintock 
&c.,  51  Ind.  325;  Jeffries  v.  Law- 
rence, 42  Iowa  498;  Atchison  v. 
Butcher,  3  Kans.  104;  Clay  v.  Nich- 
olas Co..  4  Bush  (Ky.)  154;  Cook 
V.   Sumner  &c.  Manufacturing  Co., 

1  Sneed  (Ky.)  698;  Kentucky  Union 
R.  Co.  V.  Bourbon  Co.,  85  Ky.  98, 

2  S.  W.  687;  Minneapolis  &c.  Trac. 
Co.  V.  Minneapolis,  124  Minn.  351, 
145  N.  W.  609,  610  (citing  text  and 
other  cases) ;  Hawkins  v.  Board 
&c.,  50  Miss.  735;  St.  Louis  v.  Al- 


exander, 23  Mi>.  483;  Reineman  v. 
Covington  &c.  Co.,  7  Nebr.  310; 
Starin  v.  Genoa.  23  N.  Y.  439; 
Pennsylvania  R.  Co.  v.  Philadelphia 
Co.,  47  Pa.  St.  189:  State  v.  White- 
sides,  30  S.  Car.  579.  9  S.  E.  661, 
3  L.  R.  .-\.  777.  and  note;  Johnson 
Cit}'  V.  Charlestown  &c.  R.  Co., 
100  Tenn.  138,  44  S.  W.  670;  Fisk 
V.  Kenosha,  26  Wis.  23. 

60  In  the  case  of  Lewis  v.  Pima 
County,  155  U.  S.  54,  15  Sup.  Ct. 
22.  39  L.  ed.  67,  the  statute  of  the 
United  States  provided,  inter  alia, 
that  the  general  assembly  of  the 
territory  should  have  power  to 
create  towns,  cities  or  other  mu- 
nicipal corporations  and  to  confer 
upon  them  corporate  powers  and 
privileges  necessary  to  their  local 
administration,  but  also  provided 
that  the  corporations  should  not 
be  invested  with  power  to  incur 
any  debt  or  obligation  '"other  than 
such  as  shall  be  necessary  to  the 
administration  of  its  internal  af- 
fairs," and  the  court  held  that  mu- 
nicipal corporations  could  not  in- 
cur any  debt  to  aid  a  railroad 
company.  The  court,  in  the  course 
of  the  opinion,  said:  "It  could 
never  have  been  contemplated, 
however,  that  this  power  would  be 
used  to  incur  obligations  in  favor 
of  a  railroad  operated  by  a  private 
corporation  for  private  gain,  though 
also   subserving  a   public   purpose." 


^  1014  *  RAILROADS  428 

often  essential  to  the  interests  of  muncipalities  and  to  the  ex- 
ercise of  which  many  counties,  towns  and  cities  owe  their  de- 
velopment and  prosperity.  If  it  be  the  object  of  law  to  promote 
the  public  welfare,  as  unquestionably  it  is,  statutes  conferrins^ 
authority  to  aid  in  constructing  improvements  of  a  public  char- 
acter are  wise  and  politic.  Because  a  power  may  be  abused  is 
not,  as  it  seems  to  us,  a  sufficient  reason  for  condemning  legis- 
lative action  in  granting  it  to  municipalities.  The  danger  of 
abuse  may  be,  and  doubtless  is,  sufficient  reason  to  call  for  great 
care  in  guarding  and  limiting  the  grant  of  the  power.  The  power 
is  so  far  an  extraordinary  one  as  to  require  that  it  be  not  held  to 
exist  in  municipal  corporations  unless  conferred  by  clear  statu- 
tory provisions,  and  to  require,  also,  that  the  construction  of 
statutes  conferring  such  power  be  strict,  as  against  railroad  com- 
panies claiming  aid.®^ 

§  1014  (828).  Power  to  grant  aid  is  continuous. — Where 
power  is  conferred  upon  a  municipal  corporation  to  aid  a  rail- 
road company,  it  is  a  continuous  power,  and  is  not  exhausted  by 
a  single  exercise.*'^  Where  a  limit  is  fixed  by  the  enabling  act, 
the  municipality  may  repeatedly  exercise  the  power,  provided  it 
does  not  go  beyond  the  limit  fixed  by  the  statute.  A  failure  at 
one  meeting  or  at  one  election  to  order  the  granting  of  aid  does 
not  preclude  the  municipality  from  holding  other  meetings  or 
elections.^^  It  has  been  held  that  a  general  authority  to  accept, 
by  a  two-thirds  vote,  a  power  conferred  upon  the  municipality 
to  subscribe  in  aid  of  a  railroad,  is  not  exhausted  by  a  single 

«i  Empire   Township   v.    Darlins?-  v.    Comrs.   of   Riley   Co.,   86   Kans. 

ton,    101    U.    S.   87,   25    L.   ed.   878;  752.  121  Pac.  1108,  Ann.  Cas.  1913C, 

Brocaw  v.  Board,  IZ  Ind.  543,  548.  576. 

See  also  Burlingham  V.  New  Berne,  62  Harding  v.  Rockford  &c.  R. 
213  Fed.  1014;  Louisiana  &c.  R.  Co.,  65  111.  90;  Demaree  v.  John- 
Co.  V.  Shaw,  121  La.  997,  49  So.  son,  150  Ind.  419,  49.  N.  E.  1062; 
994  (special  tax  voted  in  aid  of  Smith  v.  Omaha  &c.  R.  Co.,  97 
railroad  not  a  local  assessment).  Iowa  545,  66  N.  W.  104;  Bowling 
\  statute  authorizing  a  subscrip-  Green  &c.  R.  Co.  v.  Warren  Co., 
tion  to  railroad  companies  has  10  Bush  (Ky.)  711. 
been  held  not  to  include  electric  ^'^  Society  for  Savings  v.  New 
and  intcrurban  railways.     O'Malley  London,  29  Conn.  174. 


429 


PUBLIC  AID 


lOU 


vote,  and  that  the  power  will  survive  repeated  rejections,  and 
that  a  two-thirds  vote  at  a  subsequent  meeting  will  be  a  valid 
acceptance  of  the  power  to  extend  the  desired  aid.^*  The  common 
council  of  a  city  cannot,  however,  two  years  after  having  rejected 
a  petition  presented  by  the  stockholders,  asking  that  aid  be  given 
to  a  certain  railroad,  reconsider  such  petition  and  extend  the  aid 
for  which  it  asks.*^^  But  the  doctrine  of  the  case  cited  in  the 
note  cannot  be  understood  as  preventing  a  second  or  subsequent 
petition  from  being  presented  to  and  acted  upon  by  the  common 
council.  A  general  authority  to  subscribe  to  the  capital  stock 
of  any  railroad  does  not  fail  with  a  single  exercise,  but  sub- 
scriptions may  be  made  to  the  stock  of  any  number  of  com- 
panies, so  long  as  the  terms  of  the  statute  are  followed  in  each 
case.®®     And  a  municipality  may  make  several  subscriptions  to 


^■*  Society  for  Savings  v.  New 
London,  29  Conn.  174.  In  the  ab- 
sence of  any  prohibition  in  the 
statutes  against  submitting  the 
question  to  the  electors  more  than 
once,  a  second  vote  may  be  taken. 
Supervisors  v.  Galbraith,  99  U.  S. 
214,  25  L.  ed.  410.  A  township 
subscribed  to  the  stock  of  a  rail- 
road, on  the  condition,  among  oth- 
ers, that  a  depot  should  be  built  at 
a  certain  place.  By  mistake  this 
place,  as  set  out  in  the  petition  and 
notices  of  election,  was  different 
from  that  intended,  and  from  that 
where  the  depot  was  built.  Upon 
discovery  of  this  mistake,  it  was 
attempted  to  hold  another  elec- 
tion, in  which,  the  true  route  of 
the  road  and  place  for  the  depot 
should  be  set  out,  relying  en  the 
provisions  of  the  statute  that  a 
second  election  should  be  held  "for 
the  same  purpose"  as  the  first,  un- 
der certain  circumstances.  In  the 
preliminaries  for  the  second  elec- 
tion a  different  amount  for  the 
subscription,  and  a  different  route 


jind  time  of  completion  of  the  road, 
were  specified.  The  court  held  that 
the  election  was  not  for  the  same 
purpose  as  the  first,  and  the  sub- 
scription was  invalid.  Kansas  City 
&c.  R.  Co.  V.  Rich  Tp.,  45  Kans^ 
275,  25  Pac.  595. 

65  Madison  v.  Smith,  83  Ind.  502. 

^^  Chicot  County  v.  Lewis,  103 
U.  S.  164,  26  L.  ed.  495.  See  also 
Scotland  County  v.  Thomas,  94  U. 
S.  682,  24  L.  ed.  219;  Empire  v. 
Darlington,  101  U.  S.  87,  25  L.  ed. 
878.  Provided,  of  course,  that  the 
total  of  the  subscriptions  does  not 
exceed  the  amount  that  the  mu- 
nicipality has  power  to  subscribe. 
It  is  held,  under  the  provisions  of 
the  Kansas  statute  limiting  the 
amount  of  subscription  or  loan  to 
a  railroad  by  a  county,  city  or 
township,  that  such  limit  is  not 
confined  to  the  subscription  or  loan 
to  any  one  railroad,  but  restricts 
indebtedness  for  railroad  purposes 
generally,  whether  the  aid  be  ex- 
tended to  one  or  more  corpora- 
tions.    Chicago  &c.  R.  Co.  v.  Free- 


§  101  n  RAILROADS  430 

the  same  companx'  \i  their  sum  does  not  exceed  tlie  amount 
which  it  is  empowered  to  subscribe  in  aid   of  such   comiKiny.*^' 

§  1015  (829).  Railroad  aid  laws  not  restricted  to  new  com- 
panies.— It  is  obvious  that  the  welfare  of  a  community  may  be 
promcjted  by  the  extension  oi  an  existinjj^  railroad,  and  hence 
there  is  no  reason  for  denying  that  a  statute  authorizing,  in  gen- 
eral terms,  the  grant  of  aid  to  railroad  companies  may  apply  to 
the  extension  of  the  road  of  an  existing  company.  The  theory 
iipon  which  railroad  aid  laws  principally  rests  is  that  the  con- 
struction of  the  road  is  a  benefit  to  the  municipality,  and  as  the 
extension  of  an  old  road  into  a  municipality  is  a  benefit  to  the 
municipality  there  is  no  just  ground  upon  which  it  can  be  held 
that  aid  may  not  be  granted  in  order  to  secure  an  extension."* 
Tt  may,  perhaps,  be  competent  for  the  legislature  to  limit  the 
power  to  grant  aid  to  new  roads,  but  where  there  is  no  provision 
limiting  the  authority  conferred  upon  the  municipal  corporation 
to  grant  aid  to  corporations  newly  created  the  courts  cannot 
make  such  a  limitation,  since  that  would  be  to  legislate. 

§  1016  (830).  Taxing  the  property  of  one  railroad  company 
to  aid  in  the  construction  of  the  road  of  another  company. — The 

property  of  a  railroad  company  within  the  limits  of  a  municipality 
which  has  voted  aid  to  a  competing  railroad  is  subject  to  taxa- 
tion to  pay  the  aid  voted.''^  It  is  aflirmed  in  the  case  referred  to 
in  the  note  that  all  property  subject  to  taxation  must  be  made  to 

man,  38  Kans.  597.  16  Pac.  828.  «'  Empire  Tp.  v.  Darlington.  101 
Under  the  New  Mexico  statute.  U.  S.  87,  25  L.  ed.  878;  Henry 
authorizing  any  county  to  issue  County  v.  Nicolay,  95  U.  S.  619. 
county  bonds  to  assist  in  the  con-  24  L.  ed.  394;  Scotland  County  v. 
struction  of  any  railroad  passing  Thomas,  94  U.  S.  682,  24  L.  ed. 
through  tlie  county,  "not  exceed-  219;  People  v.  Waynesville,  88  III. 
ing  five  per  centum  of  the  assessed  469:  Brocaw  v.  Board  of  Comrs., 
value  of  tlie  property  of  the  coun-  73  Ind.  543;  Hurt  v.  Hamilton,  23 
ty,"  bonds  to  the  extent  of  five  per  Kans.  76;  First  Nat.  Bank  v.  Con- 
centum  may  be  issued  to  each  road  cord,  50  Vt.  257. 
passing  through  the  county,  when  "^  Pittsburgh  &c.  R.  Co.  v.  Har- 
so  ordered  by  a  vote  of  the  people.  den,  137  Ind.  486,  37  N.  E.  324. 
Coler  V.  Santa  Fe  Co..  6  N.  Mex.  «»  Pittsburgh  &c.  R.  Co.  v.  Har- 
88.  27  Pac.  619.  den.  137  Ind.  486,  37  N.  E.  324. 


431 


ITBLIC   ATD 


§1017 


bear  its  share  of  the  burden,  otherwise  the  tax  would  not  be 
equal  and  uniform.'"  The  court  refused  assent  to  the  argument 
of  counsel  that,  as  the  existing  company  could  not  be  benefited 
by  the  construction  of  a  rival  road,  there  was  no  power  to  levy 
the  tax.'^  The  good  of  the  local  public  is  to  be  regarded,  not 
that  of  particular  corporations  or  persons,  and  it  is  for  the  ma- 
jority to  determine  what  is  for  the  good  of  the  municipality.  It 
is  evident  that  if  particular  corporations  or  persons  could  defeat 
•a  tax  because  they  were  not  benefited  the  public  good  might  be 
sacrificed  to  private  interests.  Such  a  result  is  always  to  be 
avoided,  since  it  is  opposed  to  fundamental  principles  of  govern- 
ment. 

§  1017  (831).  Construction  of  statutes  conferring  authority 
to  aid  railroad  companies. — As  the  power  to  aid  railroad  com- 
panies is  not  an  ordinary  corporate  power,  but  exists  only  by 
virtue  of  express  statutory  grant, ^-  it  necessarily   follows   that 


"0  Pittsburgh  &c.  R.  Co.  v.  Har- 
den, 137  Ind.  486,  7,1  N.  E.  324. 

"1  On  this  point  it  was  said: 
"There  may  always  be  found  one 
or  more  persons  who  might  make 
the  claim  that  the  imposed  tax  is 
of  no  benefit  to  them;  and  there 
are  many  more  persons  who,  by 
reason  of  absence,  sex,  infancy  or 
other  disability,  are  denied  a  voice 
in  the  imposition  of  the  tax.  Yet. 
when  a  majority  have  determined 
in  favor  of  the  burden,  it  is  taken 
as  the  voice  of  the  whole  commu- 
nity; and  not  only  those  who  do 
not  or  can  not  vote  upon  the  prop- 
osition, but  even  those  who  vote 
against  it  are  equally  bound  by  the 
result.  The  majority  of  the  voters 
proceeding  under  the  forins  and  by 
the  authority  sanctioned  by  the 
legislature,  speaks  for  the  general 
good.  Even  the  rival  railroad 
company     participates    in    the    in- 


creased prosperity  caused  by  the 
construction  of  the  new  road." 
Pittsburgh  &c.  R.  Co.  v.  Harden, 
137  Ind.  486,  2,1  N.  E.  324. 

~-  Northern  Bank  v.  Porter 
Township.  110  U.  S.  608,  4  Sup.  Ct. 
254.  28  L.  ed.  258;  Brodie  v.  ^Ic- 
Cabe,  ZZ  Ark.  690;  Bissell  v.  Kan- 
kakee, 64  111.  249,  16  Am.  Rep.  554; 
Campbell  v.  Paris  &c.  R.  Co.,  71 
111.  611;  Barnes  v.  Lacon,  84  111. 
461;  Lamoille  &c.  R.  Co.  v.  Fair- 
field, 51  Vt.  237;  Lynchburg  v. 
Slaughter.  75  Va.  57;  ante  §  1013. 
See  also  Purdy  v.  Lansing,  128  U. 
S.  557.  9  Sup.  Ct.  172,  32  L.  ed.  531; 
Mellen  v.  Lansing,  11  Fed.  -820, 
829.  There  must,  in  every  instance, 
be  a  valid  statute.  Amoskeag  Bank 
V.  Ottawa,  105  U.  S.  667,  26  L.  ed. 
1204:  Gilson  v.  Dayton,  123  U.  S. 
59.  8  Sup.  Ct.  66,  Z\  L.  ed.  74; 
Turner  v.  Commissioners.  27  Kans. 
314. 


§  1018 


RAILROADS 


432 


statutes  conferring  power  to  aid  railroad  companies  must  be 
strictly  construed.  The  cardinal  rule  that  the  legislative  inten- 
tion is  to  be  ascertained  and  carried  into  effect  controls,  but 
nevertheless  the  construction  is  to  be  strict  as  against  the  com- 
pany and  liberal  in  favor  of  the  public.  The  construction,  to  be 
sure,  is  not  to  be  so  strict  as  to  defeat  the  intention  of  the 
framers  of  the  statute,  but  the  statute  cannot  be  construed  as 
granting  authority  that  is  not  conferred  either  expressly  or  by 
clear  and  necessary  implication.'^^ 

§  1018  (831a).  Inadequacy  of  statute. — It  has  been  held  that  a 
statute  authorizing  cities  to  procure  land  to  be  donated  to  a 
railroad  company  for  depot  grounds,  engine  houses,  and  the 
like,  but  containing  no  provision  authorizing  the  levy  of  a  tax 
to  meet  the  indebtedness  in  procuring  such  grounds,  and  creat- 
ing no  funds  to  pay  for  same,  only  gives  the  city  the  right  to 


^■3  Lewis  V.  Shrevcport,  3  Woods 
(U.  S.)  205;  Marsh  v.  Fulton  Coun- 
ty, 10  Wall.  (U.  S.)  676,  19  L.  ed. 
1040;  Allen  v.  Louisiana,  103  U.  S. 
80,  26  L.  ed.  318;  Lewis  v.  Shreve- 
port,  108  U.  S.  282,  2  Sup.  Ct.  634, 
27  L.  ed.  728;  Pitzman  v.  Frees- 
burg,  92  111.  Ill;  Leavenworth  Co. 
V.  Miller,  7  Kans.  479,  12  Am.  Rep. 
425.  See  Singer  &c.  Co.  v.  Eliza- 
beth, 42  N.  J.  L.  249;  State  v. 
Charleston,  10  Rich.  (S.  Car.)  491; 
City  Council  v.  Wentworth  &c. 
Baptist  Church,  4  Strob.  306.  308: 
State  v.  Board,  166  Ind.  162,  Id 
N.  E.  986,  996,  citing  text.  In  the 
case  of  Meyer  v.  Muscatine,  1 
Wall.  (U.  S.)  384,  17  L.  ed.  564,  a 
broader  doctrine  than  that  stated 
in  the  text  was  announced,  but  we 
think  that  the  decision  in  that  case 
is  greatly  modified  if  not  entirely 
overruled  by,  later  and  better  con- 
sidered cases.  Kelley  v.  Milan,  127 
U.  S.  139,  8  Sup.  Ct.  1101,  32  L.  ed. 
n,  22  Am.  &  Eng.  R.  Cas.  1;  Mer- 


rill V.  Monticello,  138  U.  S.  dll,  11 
Sup.  Ct.  441,  34  L.  ed.  1069;  Bren- 
ham  V.  German  Am.  Bank,  144  U. 
S.  173,  12  Sup.  Ct.  559,  Ze  L.  ed. 
390;  Claiborne  County  v.  Brooks, 
111  U.  S.  400,  4  Sup.  Ct.  489,  28 
L.  ed.  470;  Indiana  v.  Glover,  155 
U.  S.  513,  15  Sup.  Ct.  186.  39  L.  ed. 
243;  Coffin  v.  Indianapolis,  59  Fed. 
221,  and  cases  cited.  See  also 
United  States  v.  Oregon  &c.  R. 
Co.,  164  U.  S.  526,  17  Sup.  Ct.  165, 
41  L.  ed.  541.  A  statute  authoriz- 
ing subscriptions  to  railroad  com- 
panies has  been  held  not  to  include 
electric  and  interurban  railways. 
O'Malley  v.  Comrs.  of  Riley  Coun- 
ty. 86  Kans.  752,  121  Pac.  1108. 
Ann.  Cas.  191-3C,  576.  And  a  stat- 
ute authorizing  counties  to  sub- 
scribe for  railroad  stock  has  been 
held  not  to  warrant  issuance  of 
bonds  by  townships  to  aid  in  the 
construction  of  a  railroad.  Wit- 
towsky  v.  Jackson  County,  150  N. 
Car.  90,  63  S.  E.  275. 


433  PUBLIC  AID  §  1019 

pay  for  the  site  with  wiirrants  payable  out  of  its  general  or 
incidental  funds,  and  does  not  empower  the  city  to  issue  its 
bonds  for  this  purpose."'*  And  it  is  a  general  rule  that  where 
statutes  of  this  character  are  fatally  defective  the  courts  have 
no  power  to  supply  omissions.'^ 

§  1019  (832).  Impairment  of  contract  rights. —  The  obligation 
of  a  contract  is  protected  by  the  federal  constitution  against 
the  people  of  a  state,  as  well  as  against  a  state  legislature.  A 
contract  right  cannot,  therefore,  be  impaired  by  an  amendment 
to  a  state  constitution,  nor  by  a  change  thereof. ^"^  It  is  quite 
clear  that  the  rights  of  a  railroad  company,  when  vested  by 
virtue  of  an  effective  contract,  cannot  be  impaired,  but  the 
difficulty  is  in  determining  when  there  is  an  effective  contract. 
It  cannot  be  held  that  a  mere  vote  or  order  declaring  that  aid 
be  granted  constitutes  a  contract,  but  if  the  railroad  company 
should  accept  the  proffered  aid,  and  especially  if  it  should,  in 
reliance  on  the  offer  of  aid,  actually  tmdertake  the  work  of 
constructing  the  road,  and  should  expend  money  in  the  work, 
there  would,  as  we  believe,  be  a  contract  within  the  protection 
of  the  constitution."  If,  however,  the  offer  of  aid  should  be 
withdrawn  before  acceptance,  there  would  be  no  contract.  It 
has  been  held  that  the  contract  is  not  complete  until  the  sub- 
scription is  actually  placed  upon  the  books  of  the  railroad  com- 

"^  Swanson  V.  Ottumwa,  131  Iowa  v.  Haywood   Co.,  87  Tenn.  781,   11 

540.  106  N.  W.  9.  S.  W.  885.     Even  in  those  jurisdic- 

"5  State    V.    Board,    175    Ind.    400,  tions    where    the    rule    is    that    the 

404,  94  N.  E.  716;  State  v.  Peneau,  railroad  company  is  not  entitled  to 

75    Nebr.    1,    104    N.    W.    1151,    106  the   money   until    it   is   collected,   it 

N.  W.  451.  is  held  that  it  has  such  an  interest 

''^  Gunn    V.    Barry,    15    Wall.    (U.  as    will    pass    to    the    consolidated 

S.)  610,  21  L.  ed.212;  United  States  corporation,  of  which  it  forms  part. 

V.    Jefferson    Co.,    1    McC.    (U.    S.)  Scott  v.  Hansheer,  94  Ind.  1;  Pope 

356.  V.    Board,    51    Fed.    769.      But    see 

"See    Red    Rock    v.    Plenry,    106  State    v.    Board,    166    Ind.    162.    76 

U.  S.  596,  1  Sup.  Ct.  434,  27  L.  ed.  N.   E.   986.     See   ante,   §   379,   and 

251:    Callaway    County    v.    Foster,  authorities  cited  in  note   1. 
93  U.  S.  567,  23  T..  cd.  911;  Nelson 


§  1019  RAILROADS  434 

panv,^*  but  this  seems  to  us  a  doctrine  that  cannot  justly  be 
extended  to  cases  where  the  railroad  company,  acting  upon  the 
order  granting  aid  and  influenced  thereby,  has  expended  money 
in  the  construction  of  the  road.  It  is  held  in  a  recent  case, 
however,  that  it  is  not  to  be  supposed  that  a  railroad  was  built 
for  the  purpose  of  selling  stock  or  obtaining  a  donation  ;  that 
the  performance  of  conditions  precedent  by  the  company  under 
the  statute  does  not  constitute  a  contract,  and  that,  under  the 
Indiana  statute,  although  the  road  had  been  completed  and  a 
special  tax  levied  against  the  township,  the  company  had  no 
interest  therein  as  against  the  township,  and  could  not  maintain 
mandamus  to  compel  the  collection  of  the  tax.'°  Where  there 
is  a  failure  to  perform  the  acts  required,  in  order  to  entitle  the 
railroad  company  to  the  aid  ordered  or  voted  it,  there  is  no 
contract,®"  for  until  those  acts  are  performed  the  agreement  is 
not  complete.  If,  however,  there  is  a  complete  agreement,  the 
failure  to  do  what  is  required  will  not,  as  we  believe,  destroy 
or  annul  the  contract,  but  may  be  cause  for  defeating  a  claim 
to  the  aid,  or  for  adjudging  the  contract  to  be  ineffective.  Where 
the  constitution  declares  that  its  provisions  shall  not  apply  to 
prior  proceedings,  they  are  not,  it  is  obvious,  affected  by  such 
provisions. ^^  Where  bonds  are  issued  and  sold  there  can  be 
no  question  as  to  the  existence  of  a  contract  within  the  pro- 
's Aspinwall  V.  Daviess  County,  Bank,  86  Minn.  385,  90  N.  W.  788; 
22  How.  (U.  S.)  364.  16  L.  ed.  296:  Falconer  v.  Buffalo  R.  Co..  69  N. 
Cumberland   &c.   R.   Co.   v.    Barren       Y.  491. 

Co.   &c.,   10   Bush    (Ky.)    604;    List  «i  Fairfield     v.     Gallatin     County, 

v.  Wheeling,  7  W.  Va.  501;  Land  100  U.  S.  47.  25  L.  ed.  544;  Louis- 
Grant  &c.  Co.  V.  Davis  Co.,  6  Kans.  ville  v.  Portsmouth  &c.  Bank,  104 
256.  See  also  Aspinwall  v.  Daviess  U.  S.  469,  26  L.  cd.  775:  Clay 
County.  22  How.  (U.  S.)  364.  16  Cf)unty  v.  Society  for  Savings.  104 
L.  ed.  296.  U.  S.  579.  26  L.  cd.  856;   Moultrie 

■estate  v.  Board,  166  Ind.  162,  County  v.  Fairfield,  105  U.  S.  370, 
76  X.  E.  986.  The  statute  provided  26  L.  ed.  945,  7  Am.  &  Eng.  R.  Cas. 
that  the  board  of  county  commis-  194;  Lippincott  v.  Pana,  92  III.  24; 
sioners  might  make  a  donation  Middleport  v.  Aetna  &c.  Co.,  82 
after  the  assessment  had  been  111.  562;  People  v.  Hamill,  134  111. 
ievicd  and  collected.  666,   17  N.  E.  799,  22  Am.   &  Eng. 

^'^' Jeffries   v.   Lawrence,   42    Iowa       Corp.   Cas.  39. 
498;    Birch    Cooley    v.    First    Nat. 


435  PUBLIC  AID  §  1020 

tection  of  the  federal  constitution,  although  there  may  be  a 
question  as  to  the  validity  of  such  bonds,  as,  for  instance,  where 
the  conditions  essential  to  the  existence  of  power  to  issue  them 
were  not  complied  with  by  the  municipal  officers.  But  where 
the  statute  provided  for  assessments  to  meet  interest  on  bonds, 
but  made  it  unlawful  to  levy  more  than  five  mills  on  the  dollar, 
it  was  held  that  the  rate  was  left  to  the  discretion  of  the  levying" 
authority,  within  the  prescribed  limit,  and  that  a  constitutional 
provision  prohibiting  a  levy  of  more  than  one-half  of  one  per 
cent,  for  all  purposes,  except  to  pay  indebtedness  existing  at 
the  time  of  the  ratification  of  the  constitution,  in  which  case  it 
was  provided  that  an  additional  one-half  per  cent,  might  be 
levied,  did  not  impair  the  obligation  of  the  contract  with  the 
bondholders.*^ 

§1020  (833).  Impairment  of  contract  rights  —  Illustrative 
cases. — Where  rights  become  contract  obligations  they  will  not 
be  affected  by  constitutional  amendments  adopted  after  the  date 
of  their  acquisition.*'^  But  it  has  been  held  that  where  a  rail- 
road company,  after  the  adoption  of  a  new  constitution,  accept,"^ 
an  amendment  to  its  charter,  authorizing  its  extension  through 
other  counties  not  included  in  the  route  designated  in  the  orig- 
inal charter,  all  subscriptions  by  counties  along  such  extension 
will  be  controlled  by  the  provisions  of  the  new  constitution.** 
A  repeal  of  the  act  authorizing  the  issue  of  municipal  bonds  in 
aid  of  a  railroad  will  not  affect  the  liability  of  the  municipality 
upon  bonds  issued  under  authority  of  such  act  before  its  repeal, 
and  the  municipality  may  be  compelled  by  mandamus  to  raise 
a  tax  with  which  to  pay  them.*^ 

§1021    (834).     Construction  of  statutes  —  Implied  powers. — 

Statutes   conferring  power  upon   municipalities   to   aid   railroad 

82  Desha  Co.  v.  State,  7Z  Ark.  «*  State  v.  Saline  Co..  51  Mo.  350. 
387.  84  S.  W.  625.  11  Am.  Rep.  454. 

83  Henry  County  v.  Nicolay,  95  s'^  Sibley  v.  Mobile.  3  Woods  (U. 
U.  S.  619,  24  L.  ed.  394:  Slack  v.  S.)  535.  4  Am.  L.  T.  (N.  S.)  226: 
Maysville  &c.  R.  Co.,  13  B.  ]\Ion.  Yon  Hoffman  v.  Quincy.  4  Wall. 
(Ky.)  1;  Kansas  City  &c.  R.  Co.  (U.  S.)  535,  18  L.  ed.  403:  People 
V.  Nodaway  Co.,  47  Mo.  349.  v.    Tazewell    Co.,    22    111.    147:    St. 


.'s  1021  RAILROADS  436 

ti)mi)anies  usually  jirescribc  the  nature  of  the  aid  that  ma}-  l)e 
g^iven  and  provide  what  means  shall  be  adopted  for  paying  the 
donations  or  subscriptions,  but  in  many  cases  no  provision  is 
made  as  to  the  mode  for  paying  the  subscriptions  or  the  bonds, 
so  that  resort  must  be  had  to  other  statutes  or  to  the  general 
rules  of  law.  A  statute  is  not  to  be  considered  as  an  isolated 
or  detached  fragment  of  law,  but  as  a  part  of  one  vmiform  system 
of  laws,*"  hence  a  statute  providing  for  giving  aid  to  a  railroad 
company,  not  fully  effective  in  itself,  may  be  made  entirely 
effective  by  the  help  of  other  statutes  or  the  general  rules  of 
the  unwritten  law.  It  may  happen,  it  is  true,  that  a  statute 
may  be  so  vague  and  indefinite  as  to  be  incapal)le  of  enforce- 
ment, but  this  can  very  seldom  occur.  A  rule  which  often  aids 
in  giving  effect  to  statutes  is  this:  the  grant  of  a  principal 
power  carries  with  it  such  incidental  powers  as  are  necessary  to 
effectuate  it.  By  force  of  this  rule  statutes  empowering  a 
municipal  corporation  to  grant  aid  to  a  railroad  give  power  to 
levy  a  tax  to  raise  the  money  necessary  to  pay  the  donation  or 
subscription,  or,  if  bonds  are  lawfully  issued,  to  pay  the  bonds. ^^ 
Where  a  tax  is  provided  for,  and  no  specific  provision  is  made 
for  collecting  it,  the  implication  is  that  it  is  to  be  collected  as 
taxes  are  ordinarily  collected,  with  the  usual  interest  and  penal- 
ties for  delinquencies.**  The  rule  that  a  statute  forms  part  of  a 
uniform  system  authorizes  the  conclusion  we  have  stated.  It 
may  be  noted,  also,  that  the  rule  is  that  statutes  will  not  be  suf- 
fered to  fail,  if,  by  considering  them  in  connection  with  other 
statutes,  or  with  princi])les  of  the  common  law,  they  can  be  given 
effect.  Reference  may  be  had  to  other  statutes  to  determine 
whether  delinquents  can  be  charged  with  a  penalty.*" 

Joseph    &c.     R.    Co.    v.    Buchanan  s^  Bothwell   v.    Millikan,    104   Ind. 

County  Ct.,  39  Mo.  485.  162,  3  N.  E.  816. 

s"  Humphries  v.   Davis,    100   Ind.  ^^  Although    tlic    statute    specific- 

274.  50  Am.  Rep.  788.  ally  limits  the  tax  that  may  be  as- 

87  Ralls   County   Court  v.  United  sessed  to  a  designated  per  centum, 

States,  105  U.  S.  735,  736,  26  L.  ed.  a  penalty  may  be  charged   against 

1220;   Nelson   v.   Haywood   Co.,  87  delinquent  tax-payers.     Chicago  &c. 

Tenn.  781,  11  S.  W.  885,  4  L.  R.  A.  Co.  v.  Hartshorn,  30  Fed.  541;  To- 

648;      Nichol     v.      Mayor     &c.,     9  bin   v.   Hartshorn,  69   Iowa  648,  29 

Humph.    (Tenn.)  251.  N.  W.  764.     See  Snell  v.  Campbell, 


437  PUBLIC  AID  §  1022 

§  1022  (835).  Construction  of  statutes  conferring  authority 
to  aid  railroad  companies — Illustrative  instances. — Authority 
conferred  upon  a  comity  to  aid  a  C(»tnpauy  which  constructs  a 
road  through  the  county  does  not  empower  the  county  to  vote 
aid  to  a  company  that  locates  and  builds  its  road. entirely  outside 
of  the  county.^''  Where  authority  is  conferred  to  grant  aid  to  a 
designated  road  and  to  a  certain  other  road,  aid  may  be  given 
to  either.^^  Statutes  authorizing  counties  to  subscribe  for  rail- 
road stock  do  not  authorize  the  issuance  of  bonds  by  townships 
to  aid  in  the  construction  of  the  railroad.^-  And  power  conferred 
by  the  charter  of  a  municipal  corporation  to  "borrow  money 
and  issue  bonds  therefor"  does  not  confer  authority  to  aid  rail- 
road companies. °"  While  the  later  cases  must  be  regarded  as 
settling  the  law  and  as  adjudging  that  authority  to  aid  a  railroad 
company  by  subscriptions  does  not  carry  with  it  power  to  ex- 
ecute negotiable  instruments,  still  the  language  of  the  statute 
may  be  such  as  to  carry  such  authority.^^  A  statute  conferring 
authority  to  subscribe  for  stock  and  issue  bonds  does  not  em- 
power the  municipality  to  make  a  donation  of  property  f^  neither 
does  a  statute  authorizing  a  subscription  to  the  stock  of  a  rail- 
road company  empower  the  city  to  endorse  its  bonds.  Under 
such  a  statute  the  city  receives  something  in  return  for  its  money, 
but  an  endorsement  creates  a  liability,  being,  in  effect,  a  con- 

24  Fed.  880.     In  the  case  last  cited  27  L.  ed.  728. 

it   was    held    that    the    state    might  9*  Ashley   v.    Board,   60   Fed.   55; 

remit    the    penalties,    but    this    was  Evansville    v.    Woodbury,   60    Fed. 

denied     in     Tobin     v.     Hartshorn,  718;    Commonwealth    v.    Williams- 

supra,    and   in    Chicago   &c.   Co.   v.  ton,    156    Mass.    70,   30    N.    E.    472. 

Hartshorn,  30  Fed.   541,   the   court  See   generally   Nolan   Co.  v.   State, 

followed  Tobin  v.  Hartshorn.  83   Tex.    182,   17  S.  W.   823;    Bren- 

^0  State  V.  Hancock  Co.,  11  Ohio  ham    v.    German- American     Bank, 

St.  183.  144  U.  S.  173,  12  Sup.  Ct.  555,  36 

91  First    National    Bank   v.    Con-  L.  ed.  390;  Coffin  v.  Board,  57  Fed. 

cord,  50  Vt.  257.  137:    Dodge   v.    Memphis,   51    Fed. 

s^Wittowsky  v.  Jackson  Co.,  150  165. 

N.  Car.  90,  63  S.  E.  275.  95  Choisser  v.  People,  140  111.  21, 

93  Jonesboro    City    v.    Cairo    &c.  29  N.  E.  546.     See  Post  v.  Pulaski 

R.   Co.,   110  U.   S.    192,   4  Sup.   Ct.  Co.,  49  Fed.  628;  Sampson  v.  Peo- 

67,  28  L.  ed.  116;  Lewis  v.  Shreve-  pie,  140  111.  466,  30  N.  E.  689. 
port,. 108  U.  S.  282,  2  Sup.  Ct.  634, 


^   1022  RAILROADS  438 

tract  of  suretyship. °"^  A  sale  of  stock  I)ack  to  tlie  company  and 
a  nominal  consideration  paid  in  bonds  does  not,  it  has  been  hekl. 
render  the  bonds  invaHd  in  the  hands  of  a  bona  fide  hokler,  al- 
though the  statute  requires  stock  to  be  subscribed  and  does  not 
provide  for  a  donation,"^  l)ut  on  this  point  there  is  a  conflict  of 
authority."^  Where  cities  are  authorized  to  aid  railroad  com- 
panies they  may  exercise  the  power,  although  they  form  part  of 
townships  to  which  a  like  power  is  given."''  It  was  held  under  a 
statute  authorizing  "any  village,  city,  county  or  township"  to  aid 
a  railroad  company  that  aid  might  be  given  by  an  incorporated 
town,  as  towns  were  included  in  the  term  any  village,^  but  upon 
this  point  there  is  some  conflict  of  authority.-  So,  upon  a  some- 
\\hat  simikar  Hue  of  reasoning  to  that  pursued  by  the  Supreme 
Court  of  the  United  States  in  one  of  the  cases  referred  to,^  it  was 
held  that  a  city  incorporated  by  a  special  charter  might  grant 
aid,  although  one  of  the  state  statutes  provided  that  "no  general 
laws  as  to  the  powers  of  cities  shall  be  construed  to  extend  to 
cities  organized  under  a  special  charter.'*  A  statute  authorizing 
aid  when  "necessary  to  aid  in  the  completion  of  any  railroad"  has 
been  held  not  to  authorize  aid  to  a  road  not  yet  begun. ^  But 
the  United  States  Circuit  Court  of  Appeals  took  a  diflferent  view 
of  the  statute  and  refused  to  follow  the  state  court.® 

^^  Blake  v.   Macon,  53  Ga.   172.  could  not  be  exercised  by  cities. 

97  Cairo  V.  Zane,  149  U.  S.  122,  i  Enfield  v.  Jordan,  119  U.  S.  680, 
13  Sup.  Ct.  803,  n  L.  ed.  611;  En-  7  Sup.  Ct.  358,  30  L.  ed.  523;  Mar- 
field    V.    Jordan,    119    U.    S.    680,    7  tin  v.  People,  87  111.  524. 

Sup.  Ct.  358,  30  L.  ed.  523.  -'Welch  v.  Post,  99  111.  471.     See 

98  Post  V.  Pulaski  Co.,  49  Fed.  Sampson  v.  People,  141  111.  17.  30 
628;  Choisser  v.  People,  140  111.  21,       X.  E.  781. 

29  N.  E.  546;   Board  v.  State,   115  3  E„field    v.    Jordan,    119    U.    S. 

Ind.  64,  4  N.  E.  589,  17  N.  E.  855.  680.  7  Sup.  Ct.  358,  30  L.  ed.  523. 

See  Olcott  v.  Supervisors,  16  Wall.  *  Bartemeyer  v.  Rohlfs,  71   Iowa 

(U.  S.)  678,  21  L.  ed.  382;  Queens-  582,  32  N.  W.  673. 

bury   V.    Culver,    19   Wall.    (U.    S.)  '"  Graves    v.    Moore    Co.    Comrs., 

83,  22  L.  ed.   100.  135  N.  Car.  49,  47  S.  E.  134;  Com- 

99  Bard  v.  Augusta,  30   Fed.  906;  missioners  v.   Snuggs,   121   N.   Car. 
lola    V.    Merriman,    46    Kans.    49.  394.  28  S.  E.  539,  39  L.  R.  A.  439. 
But    we    suppose    that    if    the    Ian-  s  Board    v.    Coler,    113    Fed.    705. 
guage     of     the     statute     conferred  This    case    and   those    cited    in    the 
power  upon  the  townships  onlj'  it  last  preceding  note  also  contain  a 


439 


PUBLIC  AID 


§1023 


§  1023  (836).     Construction  of  enabling  acts — Adjudged  cases. 

— Questions  of  construction  present  themselves  in  different 
forms,  and  it  is  very  difficult  to  state  rules.  Not  only  is  it  true 
that  it  is  difficult  to  state  rules,  but  it  is  also  true  that  a  better 
practical  conception  of  the  prevailing  doctrines  can  be  obtained 
by  a  reference  to  the  adjudged  cases,  and  for  that  reason  we 
refer  to  cases  in  addition  to  those  to  which  we  have  already  di- 
rected attention.  The  statute  which  confers  the  power  must  be 
reasonably  construed  to  carry  into  effect  the  purposes  of  its 
enactment.'  and  such  of  its  provisions  as  are  merely  directory 
need  not  always  be  strictly  complied  with.^     The  authority  by 


review  of  the  authorities  as  to  the 
effect  of  recitals  in  bonds.  The 
decision  of  the  circuit  court  of 
appeals  was  affirmed  in  Stanley 
County  v.  Coler,  190  U.  S.  437,  23 
Sup.  Ct.  811,  47  L.  ed.  1126.  See 
also  Wilkes  County  v.  Coler,  113 
Fed.  725,  180  U.  S.  506,  21  Sup.  Ct. 
458,  45  L.  ed.  642;  Wilkes  County 
v.  Coler,  190  U.  S.  107,  23  Sup.  Ct. 
738.  47  L.  ed.  971;  and  compare 
Stanley  Co.  v.  Coler,  96  Fed.  284. 

"  Curtis  V.  Butler  County,  24 
How.  (U.  S.)  435,  16  L.  ed.  745; 
Woods  V.  Lawrence  County,  1 
Black  (U.  S.)  386,  17  L.  ed.  122. 
The  term  "village,"  in  the  Illinois 
act  amending  the  charter  of  the 
Illinois  Southeastern  Railway  Com- 
pany, authorizing  "'any  village,  city, 
county  or  township"  along  the 
route  of  the  road  to  subscribe  or 
make  donations  to  the  stock  of  the 
company,  and  to  issue  bonds  there- 
for, includes  "towns,"  and  the 
bonds  of  an  incorporated  town  is- 
sued thereunder  are  valid.  Enfield 
V.  Jordan,  119  U.  S.  680,  7  Sup.  Ct. 
358,  30  L.  ed.  523.  The  notice  pro- 
vided that  "one-half  of  the  tax 
should    be    levied    and   collected    in 


the  year  1887,  and  the  other  half 
in  the  year  1888."  As  the  board  of 
supervisors  had  no  power  to  levy 
taxes  and  collect  them  the  same 
year,  but  the  taxes  levied  in  one 
year  were  not  collectible  until  the 
next,  the  clause  of  the  notice  was 
held  to  mean  that  the  levy  should 
be  made  within  such  time  as  that 
the  tax  would  be  collectible  in  the 
year  1887,  and  a  levy  made  in  1886 
was  proper.  Bartemeyer  v.  Rohlfs, 
71  Iowa  582,  32  N.  W.  673. 

s  As  to  what  provisions  are 
merely  directory  and  what  are 
mandatory,  see  the  following 
cases:  Wood  v.  Lawrence  County, 
1  Black  (U.  S.)  386,  17  L.  ed.  122; 
Stanton  v.  Alabama  &c.  R.  Co.,  2 
Woods  (U.  S.)  523;  Coloma  v. 
Eaves,  92  U.  S.  484,  23  L.  ed.  579; 
Supervisors  v.  Galbraith,  99  U.  S. 
214,  25  L.  ed.  410;  Cass  County  v. 
Gillett,  100  U.  S.  585,  25  L.  ed. 
585;  Roberts  v.  Bolles,  101  U.  S. 
119,  25  L.  ed.  880:  Draper  v.  Spring- 
port,  104  U.  S.  501,  26  L.  ed.  812; 
Society  for  Saving  v.  New  London, 
29  Conn.  174:  Eagle  v.  Kohn,  84 
111.  292;  Mt.  Vernon  v.  Hovey,  52 
Ind.  568:  McPherson  v.  Foster,  43 


RAILROADS 


440 


which  a  municipality  is  enabled  to  subscribe  aid  to  a  railroad 
may  be  contained  in  the  charter  of  the  railroad  compan_\',  and 
such  a  grant  will  generally  carry  with  it  ])y  necessary  im])lica- 
tion  the  power  to  levy  taxes  to  meet  the  stdjscription.''  If  the 
power  to  sul)scril)e  be  granted  to  all  the  towns  and  villages  along 
the  line  of  the  road,  which  is  undetermined,  a  town  will  have  no 
authority  to  subscribe  until  the  road  is  finally  and  definitely 
located  with  reference  to  it.^°  Such  a  sul)scription  can  be  voted 
only  to  a  corporation  authorized  to  receive  it,  and  it  can  be  made 
only  to  the  corporation  designated  in  the  vote.^^     A  grant  to  a 


Iowa  48,  22  Am.  Rep.  215;  Deming 
V.  Houlton,  64  Maine  254,  18  Am. 
Rep.  253,  and  note;  Vicksbiirg  v. 
Lombard,  51  ^Miss.  Ill;  State  v. 
Saline  Co.  Ct.,  48  Mo.  390,  8  Am. 
Rep.  108;  Hardensbcrgh  v.  Van 
Keuren,  16  Hun  (N.  Y.)  17;  Wil- 
mington &c.  R.  Co.  V.  Commission- 
ers. 116  N.  Car.  563,  21  S.  E.  205; 
Board  v.  Texas  &c.  R.  Co.,  46  Tex. 
316;  Redd  v.  Commissioners,  31 
Grat.  (Va.)  695.  But  it  must  be 
borne  in  mind  tliat  the  interpreta- 
tion of  the  statute  is  very  much 
more  liberal  when  the  validity  of 
bonds  actually  issued  is  in  ques- 
tion than  when  the  question  arises 
between  the  original  parties  before 
the  aid  has  been  given.  A  statute 
provided  that  the  clerk  of  the  elec- 
tion should  certify  the  result  of 
the  election,  togther  with  the  time, 
terms,  and  conditions  upon  which 
the  tax,  when  collected,  should  be 
paid  to  the  railroad  company,  and 
also  provided  that  the  order  of  the 
board  of  supervisors  making  the 
levy  should  indicate  upon  what 
conditions  the  tax  should  be  paid 
over  to  the  railroad  company.  The 
clerk  made  out  his  certificate,  as 
required,  and  the  supervisors,  in 
making   the    levy,    had    this    certifi- 


cate before  them,  hut  failed  to  di- 
rect in  their  order  upon  what 
terms  the  railroad  should  be  en- 
titled to  the  tax.  The  court  held 
that  this  was  a  mere  omission,  not 
of  the  essence  of  the  thing  done, 
and  that  it  did  not  affect  the  va- 
lidity of  the  levy,  especially  as  the 
certificate  of  the  clerk  had  made 
all  the  stipulations  and  conditions 
of  record.  Meriwether  v.  Muh- 
lenburg  County  Court,  120  U.  S. 
354,  7  Sup.  Ct.  563,  30  L.  ed.  653. 

"  Peoria  &c.  R.  Co.  v.  People, 
116  111.  401,  6  N.  E.  497.  See  also 
Loan  Assn.  v.  Topeka,  20  Wall. 
(U.  S.)  655,  22  L.  ed.  455;  Nelson 
V.  Haywood  Co.,  87  Tenn.  781,  11 
S.  W.  885,  4  L.  R.  A.  648.  But  we 
think  that  the  rule  that  the  author- 
ity of  the  municipality  to  svibscribe 
may  be  given  in  the  charter  of  the 
company  can  not  apply  under  con- 
stitutions forbidding  special  or  lo- 
cal laws,  and  requiring  legislative 
acts  to  embrace  only  one  subject. 

10  Purdy  v.  Lansing,  128  U.  S. 
557.  9  Sup.  Ct.  172,  32  L.  ed.  531. 

11  Bates  County  v.  Winters,  97 
i:.  S.  83.  24  L.  ed.  933;  Marsh  v. 
Fulton  County,  10  Wall.  (U.  S.) 
676,  19  L.  ed.  1040;  Bell  v.  Mobile 
&c.  R.  Co.,  4  Wall.  (U.  S.)  598,  18 


441 


PUBLIC  AID 


§  102::} 


railroad  of  power  to  receive  aid  from  certain  classes  of  muni- 
cipalities will  not  necessarily  authorize  such  municipalities  to 
^S^rant  the  aid.  Such  a  grant  has  been  construed  to  be  made  with 
reference  to  an  existing"  general  statute  by  which  only  a  portion 
c>f  the  municipalities  were  empowered  to  make  subscriptions  of 
this  character,  and  it  was  held  that  the  charter  did  not  extend 
the  powers  contained  in  the  general  act  to  other  municipalities 
not  embraced  by  its  terms. ^-  But  the  general  rule  is  that  a 
special  act  will  be  construed  to  be  independent  of  a  prior  general 
act,  and  in  addition  thereto,  if  it  makes  no  reference  to  the  gen- 
eral act.  And  the  powers  conferred  by  the  different  acts  may  be 
separately  exercised."  So,  where  a  charter  authorized  the  rail- 
road to  receive  subscriptions  from  a  county  upon  certain  terms, 
it  was  held  that  the  validity  of  bonds  issued  in  accordance  there- 


L.  ed.  338;  Big  Grove  v.  Wells,  65 
111.  263;  Board  &c.  Fulton  Co.  v. 
Mississippi  &c.  R.  Co.,  21  111.  338. 
But  compare  Denison  v.  Columbus, 
62  Fed.  775.  A  proposition  sub- 
mitted to  the  voters  of  a  county, 
in  which  it  is  proposed  to  vote  the 
bonds  of  such  county  to  a  railroad 
company,  must  specifically  desig- 
nate the  donee.  A  proposition  in 
the  alternative,  to  issue  to  a  cer- 
tain corporation  named,  or  to  an- 
other designated  corporation,  is 
not  sufficient  to  authorize  the 
bonds,  although  adopted  by  the  le- 
gal voters.  State  v.  Roggen,  22 
Nebr.  118,  34  N.  W.  108.  An  order 
submitting  to  the  voters  of  a  coun- 
ty a  proposition  to  subscribe  stock 
in  aid  of  a  railroad  under  the  gen- 
eral railroad  law  of  Missouri,  need 
not  specify  the  name  of  the  cor- 
poration, where  the  proposition  de- 
scribes the  proposed  route  of  the 
road  with  the  requisite  certainty. 
Ninth  Nat.  Bank  v.  Knox  Co.,  TH 
Fed.  75.  See  also  Onstott  v.  Peo- 
ple, 123  111.  489,  15  N.  E.  34;  Young 


V.  Webster  City  &c.  R.  Co.,  75 
Iowa  140,  39  N.  W.  234;  Kentucky 
Union  R.  Co.  v.  Bourbon  Co.,  85 
Ky.  98.  2  S.  W.  687;  MacKenzie  v. 
Wooley.  39  La.  Ann.  944,  3  So. 
128:  State  v.  Harris,  96  Mo.  29,  8 
S.  W.  794. 

12  Pitzman  v.  Freeburg,  92  111. 
111.  See  also  Campbell  v.  Paris 
&c.  R.  Co.,  71  111.  611;  East  Oak- 
land V.  Skinner,  94  U.  S.  255,  24 
L.  ed.  125. 

13  See  Stevens  v.  Anson,  Ti  Maine 
489,  where  two  several  subscrip- 
tions were  made  under  a  general 
and  a  special  act,  and  both  were 
held  valid.  The  Kansas  act  for  the 
organization  of  cities  of  the  third 
class,  providing  that  such  cities 
shall  remain  a  part  of  the  corpo- 
rate limits  of  the  townships  in 
which  they  are  situated,  for  vari- 
ous purposes,  including  that  of  sub- 
scribing stock  in  aid  of  construct- 
ing railroads,  is  held  not  to  exclude 
such  cities  from  the  power  to  issue 
railroad  aid  bonds.  Bard  v.  Au- 
gusta, 30  Fed.  906. 


§  1024  RAILROADS  442 

with  was  not  afi'ected  1\\'  a  i)ri()r  special  act  of  the  legislature 
requiring"  the  question  of  issuing"  such  bonds  to  be  submitted  to  a 
vote  of  the  taxpayers/*  Where  a  special  act  refers  to  a  prior 
general  act  as  fixing  the  limits  of  the  authority  conferred  by  it 
and  defining  the  mode  of  its  exercise,  the  court  will  construe  the 
special  act  as  conferring  the  powers  enumerated  in  the  general 
act.^^  A  general  act  forbidding  municipal  subscriptions  in  aid 
of  railroads  has  been  construed  to  repeal  special  acts  authorizing 
theni.^*'  But  it  has  been  held  that  the  facts  which  would  auth- 
orize a  writ  of  mandamus  to  compel  a  subscription  do  not 
necessarily  establish  a  binding  contract.  .And  the  repeal  of  a 
statute  under  which  a  subscription  was  made,  and  to  enforce 
the  provisions  of  which  the  proceedings  in  mandamus  were 
pending,  was  held  to  defeat  the  proceedings.^^ 

§  1024  (837).  Means  and  methods. — \Vhere  there  are  no  lim- 
iting constitutional  provisions  the  legislature  has  a  choice  of 
means  and  methods,  and  may  provide  how  and  upon  w^hat  terms 
and  conditions  donations  or  subscriptions  in  aid  of  railroads  may 
be  made.  The  subject  is  legislative,  and,  in  the  absence  of  con- 
stitutional limitations,  the  general  rule  is  that  it  is  for  the  legis- 
lature to  determine  the  means  and  methods  that  shall  be  em- 
ployed.^^  Municipal  corporations  are  creatures  of  legislation 
and  subject  to  legislative  control,  so  that  it  is  within  the  power 
of  the  legislature,  except  where  limitations  are  imposed  by  the 
constitution,  to  control  the  action  of  such  corporations.^^     The 

"Burr  V.   Chariton    Co.,  2  McC.  67  Mo.  445;  People  v.  Pueblo  Co., 

(U.  S.)  603.     But  the  bonds  in  this  2  Colo.  360. 

case  were  in  the  hands  of  innocent  ^^  Legal  Tender  Cases,  110  U.  S. 

purchasers.      See    Butz    v.    Musca-  421,  4  Sup.   Ct.   122,  28  L.  ed.  204: 

tine,  8  Wall.  (U.  S.)  575,  19  L.  ed.  State  v.  Haworth,  122  Ind.  462,  23 

490;  Quincy  v.  Jackson,  113  U.   S.  N.  E.  946,  7  L.  R.  A.  240;  Hancock 

332,  5  Sup.  Ct.  544,  28  L.  ed.  1001.  v.   Yaden,    121    Ind.   366,  23   N.    E. 

15  Henderson    v.    Jackson    Co.,    2  235,  6  L.  R.  A.  576;  State  v.  Kol- 

McC.  (U.  S.)  615.  sem.  130  Ind.  434,  442,  29  N.  E.  595. 

18  Jeflfries   v.   Lawrence,  42   Iowa  14  L.  R.  A.  566,  and  note. 

498.  19  Laramie  Co.  v.  Albany  Co.,  92 

17  Covington  &c.  R.  Co.  v.  Ken-  U.  S.  307,  308,  23  L.  ed.  552;  Meri- 

ton  County  Court,  12  B.  Mon.(Ky.)  wether    v.    Garrett,    102   U.    S.   472, 

144,    152.      See    State   v.    Garroutte,  511.  26  L.  cd.  197;  ISIobile  v.  Wat- 


443  PUBLIC  AID  §  1025 

general  doctrines  to  which  we  have  referred  give  to  the  legisla- 
ture very  extensive  dominion  over  the  subject  of  aiding  railroads, 
for  the  subject  lies  within  the  legislative  domain,  and  the  legisla- 
tive decision  upon  questions  of  policy  and  expediency  is  con- 
clusive. It  is  only  where  some  constitutional  provision  is 
violated  that  the  courts  can  interfere. 

§  1025  (838).  Requirements  of  statute — Classes  of  cases. — 
It  seems  to  us  that  there  are  two  general  classes  of  cases,  namely, 
those  in  which  taxpayers  bring  suit  before  the  acquisition  of 
rights  by  third  persons,  and  those  in  which  the  rights  of  third 
persons  are  acquired  before  suit  is  brought.  There  is  an  essen- 
tial difference  between  the  two  classes,  and  there  should  be,  as 
we  believe,  different  rules  for  each  class.  If  interested  persons 
have  an  opportunity  to  test  the  proceedings  of  municipal  officers 
and  negligently  fail  to  make  use  of  it  until  third  persons  acquire 
rights,  they  should  not  be  allowed  to  avail  themselves  of  irreg- 
ularities or  errors  to  defeat  the  proceedings  unless  the  errors  go 
to  the  question  of  power  or  jurisdiction.  The  distinction  between 
the  two  classes  of  cases  is  lost  sight  of  or  disregarded  by  some  of 
the  courts,  for  they  apply  quite  as  strict  rules  in  cases  where  the 
rights  of  third  persons  have  intervened  as  in  cases  where  suit  is 
brought  before  the  acquisition  of  rights  by  third  persons.  It  is 
true  that  the  power  is  purely  statutory,  and  that  where  a  power 
is  statutory  the  provisions  of  the  statute  conferring  it  must  be 
strictly  pursued,  but  statutory  provisions  may  be  w^aived  either 
by  words  or  conduct,  and  persons  who  stand  by  until  third  per- 
sons acquire  rights  should  be  held  to  have  waived  a  compliance 
with  the  requirements  of  the  statutes  except  where  the  failure 
to  comply  affects  the  question  of  power  or  jurisdiction. 

§  1026  (839).  Power  to  aid  by  subscription  does  not  author- 
ize the  execution  of  bonds. — Power  conferred  upon  a  muni- 
cipal corporation  to  aid  a  railroad  company,  by  subscribing  for 

son.  116  U.  S.  289,  6  Sup.  Ct.  398,  People  v.  Morris,  13  Wend.  (N.  Y.) 

29  L.  ed.  620;  State  v.  Jennings,  27  325:    Demarest    v.    New    York,    74 

Ark.  419:  Clinton  v.  Cedar  Rapids  N.   Y.    161:    David   v.   Portland  &c. 

&c.  R.   Co..  24  Iowa  455:   Cheaney  Co..  14  Ore.  98.  12  Pac.  174. 
v.    Hooser,   9    B.    Mon.    (Ky.)    330; 


§  1026 


RAILROADS 


444 


stock,  does  not  empower  the  municipality  to  issue  bonds.  The 
power  to  issue  municipal  bonds,  whether  aid  bonds  or  any  other 
class  of  bonds,  is  not,  as  a  rule,  to  be  implied  from  the  mere 
grant  of  authority  to  aid  railroad  companies  l)y  donations  or 
subscriptions.-"  The  later  decisions  very  much,  and,  as  we  be- 
lieve, very  wisely,  restrict  the  earlier  decisions.-'  It  seems  to 
us  that,  as  municipal  corporations  are  not  business  or  trading 
corporations,  1)ut  instrumentalities  of  government,--  it  should  be 
held  that  there  is  no  power  to  issue  negotiable  bonds  or  prc^mis- 


-<'  Kelley  v.  Milan,  127  U.  S.  139. 
8  Sup.  Ct.  1101,  32  L.  ed.  77,  22 
Am.  &  Eng.  Corp.  Cas.  1 ;  Sheboy- 
gan Co.  V.  Parker,  3  Wall.  (U.  S.) 
93,  18  L.  ed.  33;  Claiborne  Co.  v. 
Brooks.  Ill  U.  S.  400,  4  Sup.  Ct. 
489,  28  L.  ed.  470;  Daviess  County 
V.  Dickinson,  117  U.  S.  657,  6  Sup. 
Ct.  897,  29  L.  ed.  1026;  Marsh  v. 
Fulton  County.  10  Wall.  (U.  S.) 
676,  19  L.  ed.  1040;  Scipio  v. 
Wright,  101  U.  S.  655,  25  L.  ed. 
1037;  Wells  v.  Supervisors,  102  U. 
S.  625,  26  L.  ed.  122.  2  Am.  &  Eng. 
R.  Cas.  605;  Ottawa  v.  Carey,  108 
U.  S.  110,  2  Sup.  Ct.  361,  27  L.  ed. 
669;  Norton  v.  Dyersburg,  127  U. 
S.  160,  8  Sup.  Ct.  1111,  32  L.  ed. 
85;  Hill  V.  Memphis,  134  U.  S.  198. 
10  Sup.  Ct.  562,  33  L.  ed.  887;  Bar- 
num  v.  Okolona,  148  U.  S.  393,  13 
Sup.  Ct.  638,  37  L.  ed.  495;  Mayor 
&c.  of  Pulaski  v.  Gilmore,  21  Fed. 
870;  Tax-payers  v.  Tennessee  &c. 
R.  Co.,  11  Lea  (Tenn.)  330;  Young 
V.  Clarendon  Tp.,  132  U,  S.  340,  10 
Sup.  Ct.  107,  33  L.  ed.  356.  See 
also  Burlingham  v.  New  Berne,  213 
Fed.  1014. 

21  Brenham  v.  German-American 
Bank,  144  U.  S.  173.  12  Sup.  Ct. 
559,  36  L.  ed.  390;  Merrill  v.  Mon- 
ticello,  138  U.  S.  673,  11  Sup.  Ct. 
441.  34  L.  ed.  1069;  Joncsboro  City 


V.  Cairo  &c.  R.  Co.,  110  U.  S.  192, 
4  Sup.  Ct.  67,  28  L.  ed.  116;  Con- 
cord V.  Robinson,  121  U.  S.  165,  7 
Sup.  Ct.  937,  30  L.  ed.  885;  Katzen- 
berger  v.  Aberdeen,  121  U.  S.  172, 
7  Sup.  Ct.  947,  30  L.  ed.  911;  Nor- 
ton v.  Dyersberg,  127  U.  S.  160,  8 
Sup.  Ct.  nil,  32  L.  ed.  85.  In 
Barnum  v.  Okolona,  148  U.  S.  393, 
13  Sup.  Ct.  638,  37  L.  ed.  495,  it 
was  said,  in  speaking  of  authority 
to  aid  railroad  companies:  ".  .  .  . 
that  such  legislative  permission 
does  not  carry  with  it  authority  to 
execute  negotiable  securities  ex- 
cept subject  to  the  conditions  and 
restrictions  of  the  enabling  act,  are 
propositions  so  well  settled  by  fre- 
quent decisions  that  we  do  not 
pause  to  consider  them."  See  also 
note  to  Weil  v.  Newbern,  126  Tenn. 
223,  in  Ann.  Cas.  1913E,  25.  Such 
cases  as  Rogers  v.  Burlington,  3 
Wall.  (U.  S.)  654,  18  L.  ed.  79,  and 
Mitchell  v.  Burlington,  4  Wall.  (U. 
S.)  270,  18  L.  ed.  350,  can  not  be 
regarded  as  authority,  for  the  doc- 
trine they  assert  has  been  repeat- 
edly- denied. 

--  Claiborne  Co.  v.  Brooks,  111 
U.  S.  400,  4  Sup.  Ct.  489/28  L.  ed. 
470;  White  v.  Board,  129  Ind.  396, 
28  N.  E.  846;  Elliott  Roads  and 
Streets,  317. 


445 


PUBLIC  AID 


§102- 


sory  notes,  unless  the  power  is  conferred  by  statute.  Persons 
who  deal  in  municipal  bonds  ought  to  be  made  to  understand 
that  municipal  corporations  have  only  such  powers  as  are  clearly 
conferred  by  statute,  so  that  in  dealing  with  municipal  corpora- 
tions they  must  ascertain  whether  power  to  issue  the  bonds  exist, 
and  where  they  are  fully  put  upon  inquiry  and  there  is  no  ele- 
ment of  estoppel,  determine  for  themselves  whether  the  bonds 
are  valid. 

§  1027  (840).  Levy  of  taxes — Withdrawal  of  power — Time. — 
Where  power  is  expressly  conferred  upon  a  municipal  corpora- 
tion to  incure  an  indebtedness  the  power  to  provide  for  its  pa}'- 
ment  by  taxation  is  usually  implied.-"'  The  power  to  tax  can  not 
be  withdrawn  until  the  debt  is  satisfied.-*     The  failure,  neelect 


23  United  States  v.  Jefiferson  Co., 
5  Dill.  (U.  S.)  310;  Riggs  v.  John- 
son County,  6  Wall.  (U.  S.)  166, 
194,  18  L.  ed.  768;  Loan  Associa- 
tion V.  Topeka,  20  Wall.  (U.  S.) 
655,  22  L.  ed.  455;  United  States  v. 
New  Orleans,  98  U.  S.  381,  393,  25 
L.  ed.  225;  Ralls  County  Court  v. 
United  States,  105  U.  S.  7i2,,  735, 
26  L.  ed.  1220;  Parkersburg  v. 
Brown,  106  U.  S.  487,  1  Sup.  Ct. 
442.  27  L.  ed.  238;  United  States 
V.  INIacon  County,  99  U.  S.  582,  25 
L.  ed.  331;  Quincy  v.  Jackson,  113 
U.  S.  ?>?>2,  5  Sup.  Ct.  544,  28  L.  ed. 
1001,  7  Am.  &  Eng.  Corp.  Cas.  368; 
Minden-Edison  Light  &c.  Co.  v. 
Minden,  94  Nebr.  161,  142  N.  W. 
673. 

-+  Ralls  County  Ct.  v.  United 
States,  105  U.  S.  72>2,,  26  L.  ed.  1220; 
Louisiana  v.  Pilsbury,  105  U.  S. 
278,  26  L.  ed.  1090;  Von  Hofifman 
v.  Quincy,  4  Wall.  (U.  S.)  535,  18 
L.  ed.  403;  Edwards  v.  Kearzey, 
96  U.  S.  595,  24  L.  ed.  793;  Louis- 
iana V.  New  Orleans,  109  U.  S.  285, 
3  Sup.  Ct.  211,  27  L.  ed.  936;  Ga- 
lena V.  Amy,  5  Wall.   (U.  S.)   705, 


18  L.  ed.  560;  Rees  v.  Watertown, 

19  Wall.  (U.  S.)  107,  22  L.  ed.  72; 
Mobile  v.  Watson,  116  U.  S.  289, 
6  Sup.  Ct.  398.  29  L.  ed.  620;  Cape 
Girardeau  County  Ct.  v.  Hill,  118 
U.  S.  68,  6  Sup.  Ct.  951,  30  L.  ed. 
7?>:  McGahey  v.  Virginia,  135  U.S. 
662,  10  Sup.  Ct.  972,  34  L.  ed.  304: 
Lansing  v.  County  Treasurer,  1 
Dill.  fU.  S.)  522;  United  States  v. 
Jefferson  Co.,  1  McCr.  (U.  S.)  356; 
Commissioners  v.  Rather,  48  Ala. 
433;  Edwards  v.  Williamson,  70 
Ala.  145;  Vance  v.  Little  Rock,  30 
Ark.  435,  440;  Trustees  v.  Bailey, 
10  Fla.  112,  81  Am.  Dec.  194;  Beck- 
with  V.  English.  51  111.  147;  Hen- 
derson &c.  R.  Co.  V.  Dickerson,  17 
B.  Men.  (Ky.)  173,  66  Am.  Dec. 
148;  Coffin  v.  Rich,  45  Maine  507, 
71  Am.  Dec.  559;  Williams  v.  John- 
son, 30  Md.  500,  96  Am.  Dec.  613; 
People  V.  Common  Council,  140  N. 
Y.  300,  Z7  Am.  St.  563;  Western 
Saving  Fund  Society  v.  Philadel- 
phia, 31  Pa.  St.  175,  72  Am.  Dec. 
730:  State  v.  Milwaukee.  25  Wis. 
122. 


§  1028 


RAILROADS 


446 


or  refusal  of  the  niunicii)al  officers  to  levy  the  tax  at  the  time 
designated  by  the  statute  does  not  impair  the  authority  to  make 
the  levy,-^  nor  does  one  levy  exhaust  the  power. 

§  1028  (841),  Donations  and  subscriptions. — If  the  legisla- 
ture has  authority  over  the  general  subject,  then  ui)on  the  prin- 
ciple that  it  has  a  choice  of  means  and  methods  and  is  "master 
of  its  own  discretion,"  it  may  determine  whether  the  aid  shall  be 
given  by  way  of  donation  or  by  subscription  to  the  capital  stock 
of  the  company.  The  legislature  may,  if  no  constitutional  provis- 
ion forbids,  determine  the  mode  in  which  the  aid  shall  be  granted. 
If  it  deems  proper  the  legislature  may  leave  it  to  the  inhabitants 
of  the  local  governmental  subdivision  to  determine  whether  they 
will  aid  by  subscription  or  donation.-® 


25  Commissioners  v.  Rather.  48 
Ala.  433;  Darlington  v.  Atlantic 
Trust  Co.,  68  Fed.  849.  Compare 
Josselyn  v.  San  Francisco,  168  Cal. 
436.  143  Pac.  705. 

2*5  The  legislature  has  the  same 
right  to  authorize  a  donation  of 
money  or  property  to  a  railway 
company  by  a  municipal  corpora- 
tion that  it  has  to  authorize  a  sub- 
scription to  the  capital  stock  of 
such  a  company.  Scott  v.  Hans- 
hccr,  94  Tnd.  1;  Converse  v.  Fort 
Scott,  92  U.  S.  503,  23  L.  ed.  621. 
The  court  will  not  presume,  in  the 
absence  of  proof,  that  a  donation 
was  intended,  althougii  the  consid- 
eration is  grossly  inadequate  to  a 
sale  of  bonds,  as  where  fifty  thou- 
sand dollars  of  municipal  bonds 
were  sold  to  the  rialroad  company 
for  one  dollar.  County  Court  of 
Madison  Co.  v.  People,  58  111.  456. 
See  also  Roberts  v.  Northern  Pac. 
R.  Co.,  158  U.  S.  1,  15  Sup.  Ct.  756. 
39  L.  ed.  873,  distinguishing  Whit- 
ing V.  Sheboygan  &c,  R.  Co.,  25 
Wis.   167,  3  Am.   Rep.  30.     Where 


a  county  agreed,  by.  popular  vote, 
lo  subscribe  for  $100,000  of  stock 
in  a  railroad  compau}-.  and  to  issue 
bonds  therefor,  but,  before  delivery 
of  the  bonds,  the  county  authori- 
ties agreed  to  sell  and  did  sell  the 
stock  back  to  the  company  in  ex- 
change for  $30,000  in  said  bonds, 
which  were  returned  to  the  county, 
the  court  held  that  the  $70,000  of 
bonds  delivered  to  the  company 
were  void,  since  the  transaction, 
being  in  effect  a  gift  instead  of  a 
subscription,  was  not  authorzied  by 
the  popular  vote.  Sampson  v.  Peo- 
ple. 140  111.  466,  30  N.  E.  689; 
Choisser  v.  People,  140  111.  21,  29 
N.  E.  546;  Post  v.  Pulaski  Co.,  49 
Fed.  628,  9  U.  S.  App.  1.  But  see 
Cairo  V.  Zane,  149  U.  S.  122,  13 
Sup.  Ct.  893,  2>1  L.  ed.  673.  In  the 
case  of  the  Board  &c.  v.  Center 
Township,  105  Ind.  422,  2  N.  E. 
368.  7  N.  E.  189,  it  appeared  that 
a  donation  of  money  was  voted  in 
aid  of  a  railroad  in  1870,  that  the 
money  was  collected  in  1871  and 
1873  and  placed  in  the  county  treas- 


447 


PrBLIC  AID 


§  1029 


§  1029  (842).  Repeal  of  the  enabling  act — Withdrawal  of 
authority. — It  is  obvious  that  if  an  cnabHn^-  act  is  repealed  be- 
fore a  subscrii)ti()n  is  m;i<le  the  authority  of  the  nuinicipai 
corporation  is  taken  away.  It  is  equaUy  clear  that  if  riii;-hts  in 
the  nature  of  a  contract  have  been  acquired  prior  to  the  repeal  of 
the  act  under  which  they  were  acquired  the  repeal  does  not 
destroy  those  rig-hts.-^  The  question  of  difficulty,  as  suggested 
in  another  connection,  is  as  to  when  the  rights  of  a  railroad  com- 
pany can  be  regarded  as  so  far  fixed  by  contract  as  to  be  within 
the  protection  of  the  constitution.  If  there  is  a  complete  right 
to  the  aid,  then,  as  we  believe,  the  right  cannot  be  rendered 
nugatory  by  a  refusal  to  levy  the  necessary  tax  or  issue  the 
proper  bonds. -^  In  one  of  the  cases  it  was  held  that,  although 
there  was  no  binding  contract  between  the  town  and  the  rail- 


ury,  and  that  the  road  was  not 
completed  until  1880,  and  the  court 
held  it  entitled  to  the  donation. 

27  Wolff  V.  New  Orleans,  103  U. 
S.  358,  26  L.  ed.  395;  Von  Hoffman 
V.  Quincy,  4  Wall.  (U.  S.)  535.  18 
L.  ed.  403;  Scotland  County  Ct.  v. 
Hill,  140  U.  S.  41,  11  Sup.  Ct.  697, 
35  L.  ed.  351;  Murfreesboro  R.  Co. 
V.  Commissioners,  108  N.  Car.  56, 
12  S.  E.  952;  Nelson  v.  Haywood 
Co.,  87  Tenn.  781,  11  S.  W.  885,  4 
L.  R.  A.  648.  See  generally  Ran- 
dolph County  V.  Post,  93  U.  S.  502. 
23  L.  ed.  957;  Henry  County  v. 
Nicolay,  95  U.  S.  619;  24  L.  ed.  394; 
Ray  County  v.  Vansycle,  96  U.  S. 
675.  24  L.  ed.  800;  United  States  v. 
Norton,  97  U.  S.  164,  24  L.  ed.  907; 
Fairfield  v.  Gallatin  County.  100 
U.  S.  47,  25  L.  ed.  544;  Louisville 
v.  Savings  Bank.  104  U.  S.  469,  26 
L.  ed.  775;  Louisiana  v.  Taylor,  105 
U.  S.  454,  26  L.  ed.  1133;  Edwards 
v.  Williamson,  70  Ala.  145;  People 
V.  Clark,  1  Cal.  406;  People  v.  Lo- 
gan County,  63  111.  374;  East  St. 
Louis  v.  Maxwell,  99  111.  439;  Rich- 


eson  V.  People,  115  III.  450,  5  N.  E. 
121;  Jeffries  v.  Lawrence,  42  Iowa 
498;  Piarthel  v.  Header,  12  Iowa 
125,  ZZ  N.  W.  446;  State  v.  Com- 
missioners, 38  Kans.  317,  16  Pac. 
ZZl \  Kennedy  v.  Palmer,  6  Gray 
(Mass.)  316;  State  v.  Greene  Co., 
54  Mo.  540;  Hays  v.  Dowes,  75  Mo. 
250;  List  v.  Wheeling,  7  W.  Va. 
501. 

2s  Babcock  v.  Helena,  34  Ark. 
499:  State  v.  Lancaster  Co.,  6  Nebr. 
214.  See  Callaway  County  v.  Fos- 
ter. 93  U.  S.  567,  23  L.  ed.  911; 
]\Iacon  County  v.  Shores,  97  U.  S. 
272,  24  L.  ed.  889;  Huidekoper  v. 
Dallas  Co.,  3  Dill.  (U.  S.)  171; 
Louisiana  v.  Taylor,  105  U.  S.  454, 
26  L.  ed.  1133;  Schuyler  County  v. 
Thomas,  98  U.  S.  169,  25  L.  ed.  88; 
Henry  County  v.  Nicolay,  95  U.  S. 
619,  24  L.  ed.  394;  Nicolay  v.  St. 
Clair  Co.,  3  Dill.  (U.  S.)  163; 
]\Ioultrie  Co.  v.  Rockingham  Ten- 
Cent  Savings  Bank,  92  U.  S.  631, 
23  L.  ed.  631;  Supervisors  v.  Gal- 
braith,  99  U.  S.  214,  25  L.  ed.  410. 


§1029 


RAILROADS 


448 


road  company,  but  the  company  had  done  work  on  the  faith  of 
the  action  of  the  town  authorities,  the  court  would  so  construe 
the  statute  as  to  preserve  the  rights  of  the  company  and  reheve 
the  legislature  from  imputation  of  bad  faith. -°  It  was  also  held 
in  the  case  referred  to.  that,  after  the  company  had  done  all  that 
it  was  required  to  do,  a  repeal  of  the  statute  under  which  the 
town  officers  acted  would  not  be  allowed  to  impair  the  rights  of 
the  railroad  company.^"  In  order  to  entitle  the  railroad  company 
to  the  aid  ordered  to  be  given  it  by  a  popular  vote  it  must  show, 
it  has  been  held,  that  the  company  acted  upon  the  belief  that  it 
w^ould  receive  aid,  and  in  that  belief  expended  money  in  the  con- 
struction of  the  road  prior  to  the  repeal  of  the  statute  under 
which  the  aid  was  voted. ^^  But  it  was  held  by  the  same  court 
that,  if  the  company  does  act  on  the  faith  of  the  vote,  and  does 
expend  money  in  the  construction  of  its  road,  the  repeal  of  the 
statute  will  not  sweep  away  its  rights,^-  and  this  seems  to  us  to 


29  Red  Rock  v.  Henry,  106  U.S. 
596,  1  Sup.  Ct.  434.  27  L.  ed.  251, 
citing  Broughton  v.  Pensacola,  93 
U.  S.  266,  23  L.  ed.  896. 

30  Red  Rock  v.  Henry,  106  U.  S. 
596.  1  Sup.  Ct.  434,  27  L.  ed.  251. 
In  the  course  of  the  opinion  it  was 
said:  "The  amendatory  act  of 
March  2,  1871,  with  its  repealing 
clause,  can  have  no  effect  on  this 
controversy.  That  act  was  passed 
more  than  six  months  after  the 
railroad  had  fully  complied  with 
all  the  conditions  upon  which  the 
town  of  Red  Rock  had  agreed  to 
issue  its  bonds.  It  was  too  late 
then  for  the  legislature  to  inter- 
fere. The  railroad  company  was 
entitled  to  the  bonds,  and  any  at- 
tempt by  the  legislature  to  forbid 
their  issue  would  be  unconstitu- 
tional." 

31  Barthel  v.  Header,  72  Iowa 
125,  33  N.  W.  446.    In  this  case  the 


tax  was  voted,  but  the  statute  un- 
der which  it  was  voted  was  re- 
pealed before  the  levy  was  made 
and  tlic  company  in  whose  favor 
tlic  tax  was  voted  had  not,  prior 
to  the  repeal,  expended  any  money 
in  reliance  upon  the  tax  in  con- 
structing the  road  and  never  did 
construct  it,  l)ut  transferred  its 
rights  by  perpetual  lease  to  an- 
other company  which  did  construct 
it.  but  there  was  no  mention  of  the 
tax  in  the  transfer  to  the  other 
company,  and  it  did  not  appear 
that  the  lessee  company  had  built 
the  railroad  relying  on  the  tax. 
It  was  held  that  the  tax  was  void 
and  its  collection  properly  en- 
joined. 

32  Burgess  v.  Mabin.  70  Iowa  633, 
27  N.  W.  464;  Cantillon  v.  Du- 
Inique  &c.  R.  Co.,  78  Iowa  48,  42 
N.  W.  613,  5  L.  R.  A.  726,  and  note. 


-J49  PUBLIC  AID  §  1030 

Ije  the  sound  doctrine,  notwithstanding  the  decisions  to  which 
\\e  have  elsewhere  referred."'^ 

§  1030  (843).  Validating  proceedings — Retrospective  laws. — 
Where  there  is  no  constitutional  provision  interdicting  it  the 
legislature  has  power  to  pass  laws  curing  or  healing  defects  in 
proceedings  had  in  aid  of  railroad  companies.-'*  The  plenary 
nature  of  the  legislative  power,  the  fact  that  the  subject  of  aiding 
railroads  is  essentially  legislative,  and  the  fact  that  the  power  of 
the  legislature  over  municipal  corporations  is  so  broad  and  com- 
prehensive, require  the  conclusion  we  have  stated.  If  vested 
rights  have  intervened,  or  if  constitutional  limitations  forbid, 
then,  of  course,  defects  can  not  be  remedied  by  retroactive 
statutes."''  In  illustration  of  the  principle  stated  we  may  refer  to 
the  cases  which  hold  that  the  legislature  has  power  to  pass  retro- 
spective statutes  confirming  the  validity  of  railroad  bonds  that 

s^Wadsworth  v.  Supervisors,  102  ta.  11  III.  505;  Board  v.  Bright,  18 

U.   S.  534,  26   L.  ed.  221:   Railroad  Ind.  93;  Steines  v.  Franklin  County, 

Co.   v.   Falconer,   103  U.  S.  821,  26  48  Mo.  167,  8  Am.  Rep.  87;  Brown 

L.  ed.  471.  V.    Mayor,    dZ    N.    Y.    239;    Bell    v. 

3*  Rogers   v.    Keokuk,    154   U.    S.  Farmville    &c.    R.    Co.,   91    Va.   99, 

546,  14  Sup.  Ct.  1152,  18  L.  ed.  74;  20   S.   E.  942;   Knapp  v.   Grant,  27 

Bolles  V.   Brimfield,  120  U.  S.  759.  Wis.    147;    State   v.    Harper,   30   S. 

30  L.  ed.  786;  Otoe  County  v.  Bald-  Car.  586,  9  S.  E.  664.    See.also  City 

win,    111    U.    S.    1,   4   Sup.    Ct.   265,  of    Venice    v.    Lawrence,    24    Cal. 

28    L.    ed.    331;    Jonesboro    City   v.  App.  350,  141  Pac.  406. 
Cairo  &c.  R.  Co.,  110  U.  S.  192,  4  -s  Where  the  subject  is  one  upon 

Sup.  Ct.  67,  28  L.  ed.   116:  Quincy  which  the  legislature  is  prohibited 

v. 'Cooke,  107  U.  S.  549,  27  L.  ed.  from   enacting  special   laws   a  spe- 

549;   Elmwood  v.   Marcy,  92  U.  S.  cial  curative  statute  will  be  invalid, 

289,  23    L.   ed.   710;    Supervisors   v.  but    a    general    statute    may   be    ef- 

Schenck,  5  Wall.  (U.  S.)  772,  18  L.  fective.      Atchison    &c.    R.    Co.    v. 

ed.   556;   Anderson  v.   Santa   Anna,  Commissioners,   17  Kans.  29.     See 

116   U.    S.   356,   6    Sup.    Ct.   413,  29  generally  upon  the  subject  of  cura- 

L.    ed.    633;    Pompton    v.    Cooper  tive    statutes,    State   v.    Saline    Co., 

Union,  101  U.  S.  196,  25  L.  ed.  803:  48  Mo.  390,  8  Am.  Rep.   108;  Wil- 

Grenada    County    v.    Brogden,    112  liams   v.    Roberts,   88   111.    11;   New 

U.  S.  261,  5  Sup.  Ct.  125,  28  L.  ed.  Orleans  v.  Pautz,  14  La.  Ann.  853; 

704;  Katzenberger  v.  Aberdeen,  121  Wilson  v.  Hardesty,  1  Md.  Ch.  66; 

U.  S.  178,  7  Sup.  Ct.  947,  30  L.  ed.  Kunkle  v.    Franklin,   13  Minn.   127, 

913:    Dennison    v.    Alaj^or    &c.,    62  97  Am.  Dec.  226. 
Fed.  775;  Cairo  &c.  R.  Co.  v.  Spar- 


;<  1030 


RAILROADS 


450 


have  been  illeg'ally  issued/'"  A  validation  by  competent  legisla- 
tive power  is  in  effect  equivalent  to  precedent  legislative  author- 
ity.^^ The  question  is  always  one  of  power,  and  if  the  legisla- 
ture had  no  power  to  authorize  the  proceedings  or  the  issue  of 
bonds  in  the  first  instance,  it  cannot  validate  them  by  a  curative 
act."^*     There  is.  however,  some  apparent,  if  not  actual,  conflict 


38  Kenosha  v.  Lamson,  9  Wall. 
(U.  S.)  477,  19  L.  ed.  725;  Bissell 
V.  Jeffersonville,  24  How.  (U.  S.) 
287,  16  L.  ed.  664;  Black  v.  Cohen, 
52  Ga.  621;  Steines  v.  Franklin  Co.. 
48  Mo.  167,  8  Am.  Rep.  87;  People 
V.  ATitchell,  35  N.  Y.  551;  Duanes- 
Inir^^T  V.  Jenkins,  57  X.  Y.  177; 
Knapp  V.  Grant,  27  Wis.  147;  Kim- 
ball V.  Rosendale,  42  Wis.  407,  24 
Am.  Rep.  421.  This  doctrine  is  an- 
nounced in  many  cases  where  the 
bonds  passed  into  the  hands  of 
bona  fide  holders,  and  the  ratifying 
act  protects  their  interests.  The 
legislature  had  a  right  to  assume, 
from  the  fact  that  the  townships 
Iiad  voted  aid  to  the  railroads,  that 
a  public* purpose  existed,  warrant- 
ing the  exercise  of  the  taxing 
power.  State  v.  Whitesides,  30  S. 
Car.  579,  9  S.  E.  661,  3  L.  R.  A. 
in  and  note;  State  v.  Harper,  30 
S.  Car.  586,  9  S.  E.  664;  State  v. 
Xeely.  30  S.  Car.  587,  9  S.  E.  664. 
3  L.  R.  A.  672.  See  Hayes  v.  Holly 
Springs,  114  U.  S.  120,  5  Sup.  Ct. 
785,  29  L.  ed.  81;  Otoe  County  v. 
Baldwin,  111  U.  S.  1.  4  Sup.  Ct. 
265.  28  L.  ed.  331 ;  Thompson  v. 
Perrine,  103  U.  S.  806,  26  L.  ed. 
612;  Bolles  v.  Brimfield.  120  U.  S. 
759,  7  Sup.  Ct.  736,  30  T..  ed.  786; 
Bissell  V.  JefTersonville.  24  How. 
(U.  S.)  287,  16  L.  ed.  664;  Kenosha 
v.  Lamson,  9  Wall.  (U.  S.l  477,  19 
L.  ed.  725;  Dows  v.  Elmwood,  34 
Fed.    114;    Black  v.    Cohen,   52    Ga. 


621;  Gardner  v.  Haney,  86  Tnd.  17; 
Duanesburgh  v.  Jenkins,  57  N.  Y. 
177;  Kimball  v.  Rosendale,  42  Wis. 
407,  24  Am.  Rep.  421. 

3'' Jasper  County  v.  Ballou,  103 
U.  S.  745,  26  L.  ed.  422;  Shaw  v. 
Norfolk  &c.  R.  Co.,  5  Gray  (Mass.) 
180;  Wilson  v.  Hardesty,  1  Md. 
Ch.  66. 

-8  Elmwood  v.  Marcy,  92  U.  S. 
289.  23  L.  ed.  710;  Katzenberger  v. 
Aberdeen,  121  U.  S.  172.  7  Sup.  Ct. 
947,  30  L.  ed.  911;  Katzenberger  v. 
.Aberdeen.  16  Fed.  745;  Marshall 
v.  Silliman,  61  III.  218;  Sykes  v. 
Columbus,  55  Miss.  115;  Harden- 
bergh  v.  Van  Keuren,  4  Abb.  (N. 
Y.)  43;  People  v.  Batchellor.  53 
N.  Y.  128.  13  Am.  Rep.  480;  Horton 
V.  Thompson,  71  N.  Y.  513;  Single 
V.  Supervisors.  38  Wis.  364.  If 
there  is  an  entire  absence  of  power 
to  authorize  the  proceedings  in -aid 
of  railroad  companies,  then  no  vali- 
dating or  curative  act  can  be  effec- 
tive but  some  of  the  cases  referred 
to  in  the  note  seem  to  go  further 
and  deny  the  power  to  validate 
where  there  was  original  power  to 
authorize  the  proceedings.  So  far 
as  the  cases  can  be  regarded  as 
holding  the  doctrine  stated  we  be- 
lieve them  to  be  wrongly  decided. 
The  decision  in  Horton  v.  Thomp- 
son. 71  N.  Y.  513.  was  denied  by 
the  supreme  court  of  the  United 
States  in  Thompson  v.  Perrine.  103 
U.  S.  806,  26  L.  ed.  612. 


451 


PUBLIC   AID 


§  1030 


of  authority  ui)on  this  ([uestion.  for  the  existence  of  such  a  power 
is  denied  by  some  of  the  cases.''"''  An  emphatic  assertion  of  the 
general  rule  is  found  in  the  cases  which  hold  that  the  legislature 
may  confirm  and  make  valid  bonds  issued  by  the  municipality, 
although  no  authority  whatever  existed  in  the  municipality  at 
the  time  the  bonds  were  issued/''  unless  prohibited  by  the  state 
constitution.*^  Upon  the  same  general  principle  it  is  held  that 
Congress  may  ratify  and  render  valid  an  unauthorized  subscrip- 
tion in  aid  of  a  railroad  made  by  a  municipal  corporation  in  one 


3^  Horton  v.  Thompson,  71  N.  Y. 
513:  People  v.  Batchellor,  53  N.  Y. 
128,  13  Am.  Rep.  480.  In  Thomp- 
son V.  Perrine.  103  U.  S.  806,  26 
L.  ed.  612,  the  court  refused  to  fol- 
low Horton  v.  Thompson,  and  re- 
ferred to  Bank  of  Rome  v.  Rome. 
18  N.  Y.  38:  People  v.  Mitchell,  35 
N.  Y.  551,  and  Williams  v.  Duanes- 
burgh,  66  N.  Y.  129,  as  declaring  a 
different  doctrine.  See  Richland 
Co.  V.  People,  3  Brad.  (111.)  210 
Marshall  v.  Silliman,  61  III.  218 
Williams  v.  Roberts,  88  111.  11 
Gaddis  V.  Richland  Co.,  92  111.  119 
Choisser  v.  People,  40  111.  21,  29 
X.  E.  546;  Post  v.  Pulaski  County, 
49  Fed.  628,  9  U.  S.  App.  1.  The 
power  may  exist  and  yet  not  be 
effectively  exercised.  Thus,  for 
example,  a  special  act  ma}^  be  void 
if  enacted  in  cases  where  only  gen- 
eral laws  are  valid.  But  it  does  not 
follow  that  because  special  laws 
are  not  effective  there  is  no  power 
to  enact  general  curative  statutes. 

40  Thompson  v.  Perrine,  103  U. 
S.  806,  26  L.  ed.  612;  First  National 
Bank  v.  Yankton  County,  101  U. 
S.  129,  25  L.  ed.  1046;  Cumberland 
Co.  v.  Randolph,  89  Va.  614,  16 
S.  E.  722.     See  Napa  Valley  R.  Co. 


V.  Xapa  Co..  30  Cal.  435:  State  v. 
Charleston.  10  Rich.  (S.  Car.)  491; 
Shelby  Co.  v.  Cumberland  &c.  R. 
Co.,  8  Bush  (Ky.)  209;  Bridgeport 
V.  Housatonic  R.  Co..  15  Conn.  475; 
Bouknight  v.  Davis,  33  S.  Car.  410, 
12  S.  E.  96.  The  South  Carolina 
act,  declaring  all  township  bonds 
theretofore  issued  in  aid  of  a  rail- 
road to  be  a  debt  of  the  township, 
authorizing  the  levy  of  a  tax  to 
pay  it,  and  providing  that  the  bonds 
might  be  used  as  evidence  of  the 
amovmt  and  character  of  such  debt, 
was  held  to  impress  such  debt  on 
the  township,  proprio  vigore,  and 
it  was  bound  therefor,  although  the 
r.ct  authorizing  the  issue  of  the 
bonds  was  unconstitutional  and  the 
bonds  void.  Granniss  v.  Cherokee, 
47   Fed.   427. 

41  See  Gaddis  v.  Richland  Co.,  92 
111.  119;  People  v.  Batchellor,  53  X. 
Y.  128,  13  Am.  Rep.  480;  Horton  v. 
Thompson,  71  N.  Y.  513.  Such  an 
act  will  be  construed  to  affect  only 
aid  voted  before  its  passage,  and 
will  not  be  held  to  validate  acts 
subsequently  done.  Concord  v. 
Robinson,  121  U.  S.  165,  7  Sup.  Ct. 
937,  30  L.  ed.  885;  Post  v.  Pulaski 
Countv,  47  Fed.  282. 


§  1031  RAILROADS  452 

of  the  territories.'-  But  il  the  leg'ishiture  could  not,  at  the  time 
the  bonds  were  issued,  give  authority  to  issue  them  in  the  way 
they  were  issued,  it  cannot  afterward  confirm  and  make  valid  the 
1)onds  so  issued."*^  It  has  l^een  held  that  an  act  purporting  only 
to  cure  irregularities  will  not  validate  bonds  which  were  issued 
without  legal  authority."''*  It  may  be  remarked,  in  passing,  that 
where  the  local  of^cers  have  no  authority  whatever  to  grant  aid, 
their  proceedings  are  not  simply  irregular,  but  are  acts  performed 
where  no  jurisdiction  exists,  so  that  a  statute  assuming  to  do  no 
more  than  cure  irregularities  cannot  be  extended  to  a  case  where 
there  was  an  entire  absence  of  authority.  If,  however,  the  terms 
of  the  statute  clearly  embrace  unauthorized  acts,  then  it  will,  as 
a  rule,  validate  them.*^  Where  a  constitutional  provision  for- 
bidding the  grant  of  aid  has  taken  effect  before  the  ratifying  act 
is  passed,  the  legislature  cannot  validate  a  prior  subscription 
made  without  authority.""^ 

§  1031    (844).     Legislative  power  to  authorize  ratification. — 

\Miere  the  legislature  has  power  in  the  first  instance  to  impose 
or  dispense  with  conditions  at  its  discretion,  it  may  authorize  a 
ratification,  although  conditions  prescribed  by  the  enabling  act 
were  not  complied  with  in  granting  the  aid.  It  has  been  held,  in 
New  York,  that  conditions  imposed  by  the  enabling  act  may  be 
waived  and  acts  done  in  disregard  of  its  requirements  may  be 
ratified  by  the  legislature,  even  during  litigation.*'     There  is  a 

■*-  First    National    Bank   v.   Yank-  he    valid    if    the    provisions    of    the 

ton  County,  101  U.  S.  129,  25  L.  ed.  constitution     are    infringed,    but    a 

1046.  curative    act,    although    retrospec- 

4''  Elmwood    V.    IVIarcy,   92   U.    S.  tive,  is  not  from  that  fact  alone  to 

289,  23  L.  ed.  710.  Such,  for  example,  be  always  regarded  as  void, 

as   a   subscription   made   without  a  •*''  Sykes    v.    Columbus,    55    Miss, 

preliminary  vote,  where  the  consti-  115:  People  v.  Jackson  Co.,  92  111. 

tution    permits    the    legislature    to  441. 

confer  the  power  of  subscribing  4"  Duanesburg  v.  Jenkins,  57  N. 
only  after  the  proposition  has  been  Y.  177.  The  Wisconsin  act  pro- 
accepted  by  a  popular  vote.  viding  that  all  proceedings  on  the 

■"  Williamson  v.  Keokuk,  44  Iowa  part    of   a    certain    county,    hereto- 

88.  fore   had,   in   subscribing  and   pay- 

•'''  It     is     to     be     understood,     of  ing  for  anj-  stock  of  a  designated 

course,  that  no  curative  statute  can  railway   company,   "are    hereby   le- 


453 


PUBLIC  AID 


§  1032 


difference,  as  appears  from  what  has  been  elsewhere  said, 
l:)etween  cases  where  there  has  been  some  irreguhirity  and  cases 
where  there  is  an  entire  absence  of  power.  There  is,  however, 
some  diversity  of  opinion,  for  it  has  been  held,  erroneously,  as  we 
are  inclined  to  think,  that  irregularities  may  prevent  legislative 
ratification."'® 

§  1032  (845).  Curative  statutes — Requisites  of. — The  consti- 
tutional power  of  the  legislatvn-e  to  validate  proceedings  granting 
aid  to  railroad  companies  must  be  exercised  by  a  valid  statute. 
Tn  jurisdictions  where  special  laws  are  prohibited  and  general 


galized  and  declared  to  be  of  the 
same  legal  force  and  effect  as 
though  the  law  governing  the  mode 
and  procedure"'  in  such  cases  "had 
been  in  all  respects  complied  with," 
was  held  to  cure  any  defects  in 
such  proceedings,  although  it  was 
enacted  after  the  commencement 
of  a  suit  based  on  alleged  defects 
in  the  proceedings.  Hall  v.  Baker, 
74  Wis.  118,  42  N.  W.  104. 

^^  Where  an  act  was  passed  bj' 
the  legislature  legalizing  a  special 
election  to  vote  aid  to  a  railroad, 
and  certain  acts  of  the  board  of 
county  commissioners  in  levying 
the  tax  so  voted,  such  note  and 
subsequent  acts  having  been  so 
irregularh'  performed  that  a  suit 
was  even  then  pending  to  set  the 
whole  proceedings  aside,  the  su- 
preme court  of  Indiana  held  the  act 
to  be  unconstitutional.  The  court 
said:  "It  seems  very  clear,  we 
think,  that  in  the  enactment  and 
approval  of  the  statute  now  under 
consideration,  the  legislative  and 
executive  departments  of  our  state 
government  have  exercised,  or  at- 
tempted to  exercise,  judicial  func- 
tions. .  .  .  The  powers  of  the  gen- 
eral assembly  are  almost  unlimited; 


but  they  can  not,  as  a  rule,  try 
and  determine  the  rights  of  part- 
ies to  a  pending  law  suit."  Colum- 
bus &c.  R.  Co.  V.  Board  of  Comrs., 
65  Ind.  427.  See  also  Allison  v. 
Louisville  &c.  R.  Co.,  9  Bush  (Ky.) 
247.  As  we  have  elsewhere  shown, 
it  is  well  settled  that  municipalities 
have  no  inherent  or  implied  right 
to  subscribe  stock  or  issue  bonds 
in  aid  of  a  railroad  company,  al- 
though the  purpose  may  be  to  en- 
able such  company  to  construct  its 
road  by  or  through  such  munici- 
pality, and  that  where  the  claim  of 
authority  rests  upon  mere  infer- 
ence it  will  not  be  sustained.  Town 
of  South  Ottawa  v.  Perkins,  94 
U.  S.  260.  24  L.  ed.  154:  East  Oak- 
land V.  Skinner,  94  U.  S.  255,  24  L. 
ed.  125:  Ogden  v.  Daviess  County. 
102  U.  S.  634,  26  L.  ed.  263;  Young 
v.  Clarendon  Tp..  132  U.  S.  340,  10 
Sup.  Ct.  107,  33  L.  ed.  356;  Brodie 
V.  ^IcCabe,  33  Ark.  690:  French  v. 
Teschemaker,  24  Cal.  518;  Camp- 
bell V.  Paris  &c.  R.  Co.,  71  111.  611: 
Welch  V.  Post,  99  111.  471;  Board 
&c.  of  Delaware  County  v.  Mc- 
Clintock,  51  Ind.  325;  Goddard  v. 
Stockman,  74  Ind.  400;  Jeffries  v. 
Lawrence.  42  Iowa  498;  Cagwin  v. 


§1032 


RAILROADS 


454 


laws  required,  a  special  curative  statute  would  not  be  effective.'*^ 
Idle  intention  of  the  le.q'islature  to  \alidate  prior  proceedings 
must  l)e  expressed  with  reasonal)le  clearness  and  precision.  The 
intention  to  \alidatc  the  ])roceeding's  must  not  be  left  to  conjec- 
ture in  cases  where  the  aid  was  t^ranted  in  the  first  instance  with- 
out complying  with  conditions  which  the  constitution  made  it 
the  duty  of  the  legislature  to  im])ose.'"'  It  seems,  indeed,  a  little 
difficult  to  sustain  the  conclusion  that  ])roceedings  not  taken  in 
conformity  to  the  i)rovisions  of  the  constitution  can  be  cured 
since  it  would  seem  that,  where  there  is  a  failure  to  comply  with 
constitutional  reqtiirements,  there  is  an  absence  of  ])ower,  and 
where  power  is  absent  the  proceedings  are  void.'^^  The  legisla- 
ture has  no  power  to  validate  a  debt  incurred  in  violation  of  a 
constitutional  provision,  and  hence  cannot  validate  bonds  issued 
in  excess  of  the  amount  designated  l)y  the  constitution. '"'- 


Hancock.  84  X.  V.  532;  Pennsyl- 
vania R.  Co.  V.  Philadelphia.  47 
Pa.  St.  189;  Lamoille  Valley  R.  Co. 
V.  Fairfield,  51  Vt.  257;  Macon  &c. 
R.  Co.  V.  Gibson,  85  Ga.  1.  11  S. 
E.  442,  21  .-\m.  St.  135.  43  Am.  & 
Eng.  R.  Cas.  318.  But  it  does  not 
follow  from  this  settled  principle 
that  ratification  of  proceedings 
jj;ranting  aid  may  not  be  authorized 
by  subsequent  statutes.  Whether 
ratification  may  be  authorized  does 
not  depend  upon  the  principle  that 
express  statutory  authority  is  es- 
sential to  the  existence  of  authority 
to  grant  aid,  but  upon  entirely 
different    principles. 

*"  Davis  V.  Woolnough,  9  Iowa 
104;  Hodges  v.  Baltimore  &c.  Co., 
58  Md.  603;  Zeigler  v.  Gaddis,  44 
N.  J.  L.  363;  State  v.  Riordan,  24 
Wis.  484;  State  v.  Supervisors,  25 
Wis.  339;  Brown  v.  Denver,  7  Colo. 
305.  The  legislature  may  enact 
special  laws  where  there  is  no  con- 
stitutional  provision  prohibiting   it. 

5^"  Hayes  v.  Holly  Springs,  114 
U.  S.  120,  5  Sup.  Ct.  705,  29  L.  ed. 


81;  Bcloit  V.  Morgan.  7  Wall.  (U. 
.S.)  619,  19  L.  ed.  205;  Grenada  Co. 
V.  Brogden,  112  U.  S.  261,  5  Sup. 
Ct.  125,  28  L.  ed.  704;  Brown  v. 
New  York.  63  N.  Y.  239;  Erskine 
V.  Nelson  Co.,  4  N.  Dak.  66,  60  N. 
W.  1050,  27  L.  R,  A.  696. 

51  St.  Joseph  V.  Rogers,  16  Wall. 
(U.  S.)  644,  21  L.  ed.  328;  Bu- 
chanan V.  Litchfield,  102  U.  S.  278. 
26  L.  ed.  138;  Dixon  County  v. 
Field,  111  U.  S.  83,  4  Sup.  Ct.  315, 
28  L.  ed.  360;  Doon  Tp.  v.  Cum- 
mins, 142  U.  S.  366,  12  Sup.  Ct. 
220,  35  L.  ed.  1044.  See  Sutro  v. 
Pettit.  74  Cal.  332,  16  Pac.  7,  5 
.■\ni.  St.  442;  First  National  Bank 
V.  District,  86  Iowa  330,  53  N.  W. 
301.  41  Am.  St.  489;  McPherson  v. 
Foster.  43  Iowa  48,  22  Am.  Rep. 
215;  Beard  v.  Hopkinsville,  95  Ky. 
215,  24  S.  W.  872,  44  Am.  St.  222; 
Dunn  v.  Great  Falls,  13  Mont.  58, 

31  Pac.   1017;   State  v.   Mayor  &c., 

32  Nebr.  568,  49  N.  W.  272;  Citi- 
zens' Bank  v.  Terrell,  78  Tex.  450. 

52  State  V.  Stoli,  17  Wall.  (U.  S.) 
425,  21  L.  ed.  650;  Mosher  v.  Inde- 


4."):-) 


PUBLIC  AID 


§  1033 


§  1033  (846).  Division  of  municipal  corporations  for  purpose 
of  voting. — The  principle  laid  clown  in  the  cases  which  hold  that 
the  general  power  of  the  legislature  over  the  subject  of  taxation 
authorizes  it  to  create  taxing  districts,  supports  the  conclusion 
that  the  legislature  may  divide  townships  or  other  municipal 
corporations  into  districts  for  the  purpose  of  voting  aid  to  rail- 
road companies  unless  there  is  some  provision  in  the  constitution 
forbidding  such  a  division.  The  whole  subject  of  aid  to  railroad 
companies  is  so  essentially  a  legislative  one  that  it  is  not  easy  to 
set  bounds  to  the  legislative  power,  except,  of  course,  in  those 
jurisdictions  where  the  power  is  limited  and  defined  by  the  con- 
stitution. The  adjudged  cases  show  that  the  legislative  power 
is  one  of  wide  sweep.  The  general  rule  is  that  the  legislature 
is  not  confined  to  fixed  limits  of  municipal  bodies  in  laying  tax- 
ation for  local  purposes,  but  may  authorize  their  imposition  upon 
such  particular  districts  as  are  to  be  benefited  thereby. ^^  It  has 
been  held  that  a  portion  only  of  a  county  may  be  authorized  to 
subscribe  aid,  where  its  interests  are  more  immediately  depend- 
ent upon  the  success  of  the  enterprise  than  are  those  of  other 
portions.^*  So,  it  has  been  held  that  contiguous  territory  may  be 
added  to  a  city  for  the  purpose  of  subscribing.^^ 


pendent  &c.  District,  44  Iowa  122; 
Erskine  v.  Nelson  Co.,  4  S.  Dak. 
66,  60  N.  W.  1050,  27  L.  R.  A.  696. 
See  McBryde  v.  Montesano,  7 
Wash.  69,  34  Pac.  559;  Massachu- 
setts &c.  Co.  V.  Cane  Creek  Tp., 
45  Fed.  336. 

^^  Lexington  v.  McQuillan,  9 
Dana  (Ky.)  513,  35  Am.  Dec.  159; 
People  V.  Mayor  &c.  of  Brooklyn, 
4  N.  Y.  419,  55  Am.  Dec.  266,  and 
note. 

5*  Shelby  Co.  v.  Shelby  R.  Co.,  5 
Bush  (Ky.)  225,  229.  See  Deland 
v.  Platte  Co.,  54  Fed.  823;  Ogden 
v.  Daviess  Co.,  102  U.  S.  634,  26 
L.  ed.  263.  The  New  York  bond- 
ing act  of  1869  transformed  towns 
from    mere    divisions    of   the    state 


into  municipal  corporations,  with 
power  to  borrow  money  to  aid 
railroads,  upon  the  consent  of  the 
tax-payers,  after  the  requisite  stat- 
utory proceedings  and  the  proper 
adjudication  by  the  county  judge. 
Brownell  v.  Greenwich,  114  N.  Y. 
518,  22  N.  E.  24.  4  L.  R.  A.  685. 

55  Henderson  v.  Jackson  Co.,  12 
Fed.  676.  Authority  given  to  a 
cit\'  to  tax  property  outside  its 
corporate  limits  to  pay  bonds  is- 
sued in  aid  of  a  railroad  was  sus- 
tained in  Langhorne  v.  Robinson. 
20  Grat.  (Va.)  661.  Contra  Wells 
V.  Weston,  22  Mo.  384.  66  Am.  Dec. 
627;  Cameron  v.  Stephenson,  69 
Mo.  372.  The  trustees  of  a  town- 
ship within  which  a  city  is  located. 


<^  10:U 


RAILROADS 


456 


i;  1034  (847).  What  corporations  may  be  authorized  to  grant 
aid. The  general  rule  is  that  counties,  townships,  cities  and  in- 
corporated towns  and  villages  which  are  invested  with  taxing 
power  may  be  empowered  by  express  statute  to  grant  aid  to  rail- 
road companies.^"  Much,  of  course,  depends  upon  the  constitu- 
tion of  the  state,  for  it  is  obvious  that  a  tax  cannot  be  authorized 
where  it  is  forbidden  by  constitutional  provisions.  It  is  gen- 
erally held  that  aid  cannot  be  granted  where  the  construction  of 
a  railroad  is  foreign  to  the  purpose  for  which  the  public  corpora- 
tion w^as  created."  Taxation  by  municipal  or  public  corpora- 
tions must  be  for  a  corporate  purpose.  It  is  not  always  easy  to 
decide  whether  a  certain  tax  is  within  or  without  this  limitation; 
but  it  may  be  safely  said  that,  as  a  general  rule,  a  corporate  pur- 
pose must  be  some  purpose  which   is  germane  to  the  general 


and  which  embraces  territory  not 
within  the  city  limits,  are  the  prop- 
er persons  to  order  an  election  to 
determine  whether  aid  should  be 
voted  to  a  railroad  company. 
Young  V.  Webster  City  &c.  R.  Co., 
75  Towa  140,  39  N.  W.  234.  For 
such  a  city  forms  a  part  of  the 
township  for  the  purposes  of  vot- 
ing aid  and  of  taxation  to  pay  the 
aid  voted.  Young  v.  Webster  City 
&c.  R.  Co.,  75  Iowa  140,  39  N.  W. 
234;  Scott  v.  Hansheer,  94  Ind.  1. 
See  also  Waterville  v.  County 
Commissioners,  59  Maine  80.  And 
where  such  aid  is  voted  by  the 
township  the  tax  is  properly  levied 
upon  all  the  taxables  within  the 
township,  including  those  within 
the  limits  of  a  city  or  town  in  such 
township.  Reynolds  v.  Paris,  80 
Ind.  14. 

•"^e  Folsom  v.  Township  Ninety- 
six,  159  U.  S.  611,  16  Sup.  Ct.  174, 
179,  40  L.  ed.  278;  Livingston 
County  V.  Darlington,  101  U.  S. 
407,  25  L.  ed.  1015;  Harter  v.  Ker- 
nochan,  103  U.  S.  562,  571,  26  L.  ed. 


411;  Anderson  v.  Santa  Anna,  116 
U.  S.  356,  6  Sup.  Ct.  413,  29  L.  ed. 
633;  Bolles  v.  Brimfield.  120  U.  S. 
759,  7  Sup.  Ct.  736,  30  L.  ed.  786: 
Hackett  v.  Ottawa,  99  U.  S.  86,  25 
L.  ed.  363;  Atlantic  &c.  Co.  v. 
Darlington,  63  Fed.  76;  affirmed  by 
Darlington  v.  Atlantic  &c.  Co.,  68 
Fed.  849;  Johnson  y.  Stark  Co.,  24 
HI.  75;  Chicago  &c."  Railroad  Co.  v. 
Smith,  62  111.  268,  14  Am.  Rep.  99; 
Brown  v.  Commissioners,  100  N. 
Car.  92,  5  S.  E.  178;  State  v.  Ches- 
ter &c.  R.  Co.,  13  S.  Car.  290; 
Floyd  V.  Perrin,  30  S.  Car.  1,  8  S. 
E.  14,  2  L.  R.  A.  242;  State  v. 
Whitesides.  30  S.  Car.  579,  584,  9 
S.  E.  661,  3  L.  R.  A.  Ill,  and  note; 
State  v.  Neely,  30  S.  Car.  587.  9 
S.  E.  664,  3  L.  R.  A.  672;  Nichol  v. 
Mayor  &c.,  9  Mumph.  252. 

•■57  Johnson  v.  Campbell,  49  111. 
316;  Harvard  v.  St.  Clair  &c.  Dist., 
51  111.  130;  Madison  Co.  v.  People, 
58  111.  456;  Trustees  v.  People,  63 
111.  299;  People  v.  Depuyt,  71  111. 
651;  People  v.  Trustees  &c.,  78  111. 
136. 


457  punLic  AID  §  1035 

scope  of  the  object  for  which  the  corporation  was  created.''^  This 
principle  would  preclude  corporations  formed  for  educational 
purposes  and  the  like  from  making  subscriptions  or  donations  to, 
railroad  companies,  since  aiding  in  the  construction  of  railroads 
cannot  be  regarded  as  a  corporate  purpose  in  such  a  case. 

§  1035   (848).     Subscription  to  unorganized  company. — It  has 

been  held,  where  the  statute  makes  it  a  prerequisite  to  the  right 
to  do  corporate  business,  that  a  designated  amount  of  stock  shall 
be  subscribed,  and  the  designated  amount  has  not  been  sub- 
scribed, a  municipality  can  not  make  a  valid  subscription  to  such 
corporation. "^^  The  decision  in  the  case  referred  to  may,  per- 
haps, 1:)e  sustained  upon  the  ground  that  there  was  not  even  a 
de  facto  corporation,  but  if  the  decision  is  to  be  regarded  as 
going  to  the  extent  that  there  can  not  be  an  effective  municipal 
subscription  to  a  de  facto  corporation,  we  think  that  it  must  be 
legarded  as  unsound.  If  there  be  a  de  facto  corporation,  that  is, 
a  corporation  assumed  to  be  formed  under  a  valid  ■  statute, 
authorizing  the  formation  of  such  a  corporation,  and  also  acts 
performed  as  a  corporation,  then,  as  we  believe,  there  may  be  an 
effective  municipal  subscription. "^^  It  is  probably  true,  how- 
ever, that  if  it  should  be  shown  by  a  taxpayer,  or  other  party 
having  a  right  to  complain,  that  the  corporation  had  not  even  a 
de  facto  existence,  or  that,  having  a  bare  de  facto  existence, 
cause  existed  for  a  quo  warranto,  and  there  is  a  likelihood  that 
the  state  will  proceed  by  quo  warranto,  the  courts  would  enjoin 
the  granting  of  aid,  or  if  the  rights  of  third  persons  had  not  in- 
tervened, enjoin  the  enforcement  of  the  order  or  vote  granting 
the  aid. 

§  1036  (849),  Votes — Voters — Majority  of  votes. — In  con- 
struing statutes  empowering  municipal  corporations  to  aid  rail- 
road companies,  it  often  becomes  important  to  determine  the 
meaning  of  the  terms  employed  in  the  statutes.     Ordinarily  rules 

ssWeightman  v.  Clark,  103  U.  S.  159,  13  N.  E.  784.     But  sec  ante,  §§ 

256,  260,  26  L.  ed.  392.  120,  1012. 

59  Allison    V.     Louisville    &c.    R.  ^^  gee   D"ouglas  Co.  v.  Bolles,  94 

Co.,   9   Bush    (Ky.)    247.      See   also  U.  S.  104;  Kingman  Co.  v.  Cornell 

Farnham    v.    Benedict,    107    N.    Y.  Universitj%  57  Fed.  149. 


J^  1086 


RAILROADS 


458 


of  construction  applicable  to  statutes  granting  a  right  not 
possessed  by  the  public  generally,  are,  of  course,  to  be  applied  to 
aid  statutes,  but  there  are  some  applications  of  those  rules  which 
it  is  important  to  consider.  The  phrase,  a  "majority  of  the 
voters."  in  such  a  statute,  is  held  to  mean  a  majority  of  those 
depositing  ballots,*'^  unless  so  qualified  as  to  show  distinctly  that 
another  meaning  is  intended.®^  n  jg  generally  held  that  all  the 
voters  who  do  not  exercise  the  right  to  vote  will  be  presumed  to 


61  Cass  County  v.  Johnston,  95 
U.  S.  360,  24  L.  ed.  416;  Douglass 
V.  Pike  County,  101  U.  S.  677,  25 
T..  ed.  968:  Carroll  County  v. 
Smith.  Ill  U.  S.  556,  4  Sup.  Ct. 
539,  28  L.  ed.  517;  Melvin  v.  Lisen- 
by.  72  111.  63:  Slack  v.  Maysville 
&c.  R.  Co.,  13  B.  Mon.  (Ky.)  1; 
Reiger  v.  Commissioners,  70  N. 
Car.  319;  Louisville  &c.  R.  Co.  v. 
County  Court,  1  Sneed  (Tenn.) 
638;  Louisville  &c.  R.  Co.  v.  State, 
8  Heisk.  (Tenn.)  663.  A  majority 
of  those  voting  on  the  particular 
proposition.  Murphy  v.  Long 
Branch  (N.  J.),  61  Atl.  593.  But 
see  the  reasoning  in  McWhorter 
V.  People,  65  111.  290;  Hawkins  v. 
Carroll  Co.,  50  Miss.  735;  Webb  v. 
Lafayette  Co.,  67  Mo.  353;  Denny. 
In  re,  156  Ind.  104,  59  N.  E.  359, 
361,  51  L.  R.  A.  722;  Cleveland  Cot- 
ton Mills  V.  Cleveland  Co.,  108  N. 
Car.  684,  13  S.  E.  271.  In  State  v. 
Harris,  96  Mo.  29,  8  S.  W.  794,  it 
is  held,  that  in  order  that  a  county 
court  may  subscribe  to  the  stock 
of  a  railroad  company,  it  must  ap- 
pear that  two-thirds  of  the  quali- 
fied voters  of  the  county,  at  an 
election  held  thereon,  assented  to 
the  subscription  by  voting  in  favor 
of  it;  and  the  fact  that  a  voter 
does  not  vote  does  not  express 
his  assent,       within     the     Missouri 


constitution.  In  another  case  it 
was  held  that  where  a  statute  pro- 
vides for  an  election,  and  requires 
that  a  majority  of  the  qualified 
voters  of  a  county  assent  to  a 
county  subscription  to  the  capital 
stock  of  a  railway  construction 
company,  it  is  necessary  to  look 
to  the  whole  number  of  registered 
"qualified  voters"  in  the  county  in 
order  to  determine  the  result  of 
the  election;  and  a  majority  of  the 
votes  actually  cast  is  not  sufficient 
to  give  validity  to  a  subscription 
under  such  statute  when  such  ma- 
jority is  not  a  majority  of  the 
whole  number  of  registered  quali- 
fied voters.  McDowell  v.  Ruther- 
ford R.  Const.  Co.,  96  N.  Car.  514, 
2  S.  E.  351.  See  generally  Pacific 
Imp.  Co.  V.  Clarksdale,  74  Fed.  528; 
Cedar  Rapids  &c.  R.  Co.  v.  Boone 
Co.,  34  Iowa  45. 

^'-  Where  the  statute  required  a 
majority  of  the  legal  voters  living 
in  the  county,  anti  the  result  of  the 
election  showed  that  by  the  county 
record  a  inajority  of  the  voters  had 
voted  for  the  subscription,  and  the 
order  of  the  county  court  recited 
that  all  the  conditions  prescribed 
for  the  election  had  been  complied 
with,  the  court  held  that  the  num- 
ber of  legal  voters  living  in  the 
county    was    a    matter    dehors    the 


459 


PUBLIC  AID 


§  10:36 


assent  to  the  expressed  will  of  a  majority  of  those  voting".''"''  It 
is  held,  under  the  Minnesota  statute,  that  the  question  of  giving 
aid  must  be  submitted  to  the  legal  voters  of  the  town,  and  can 
not  be  voted  upon  by  all  resident  taxpayers  without  regard  to 
whether  they  are  legal  voters  or  not.*""*  \\'here  it  appears  that 
some  of  those  voting  for  the  subscription  are  aliens,  and  that  a 
majority  of  the  legal  voters  have  not  authorized  it,  the  companv 
can  not  compel  a  subscription."-^  But  it  has  been  held  that  the 
fact  that  a  portion  of  the  voters  are  absent  in  military  service, 
and  the  question  has  not  been  submitted  to  them,  is  not  a  valid 
objection  to  the  making  of  a  subscription  authorized  bv  the 
voters  who  cast  ballots  at  a  properly  conducted  election. "^"^  A 
mere  majority  vote  can  not  dispense  with  conditions  annexed  to 


lecord  which  the  county  court 
could  only  determine  by  investiga- 
tion, and  that  its  finding  was  con- 
clusive, and  the  county  was.  es- 
topped to  show  the  contrary.  Citi- 
zens' Sav.  &c.  Assn.  v.  Perry  Coun- 
ty, 156  U.  S.  692,  15  Sup.  Ct.  547. 
39  L.  ed.  585.  Number  of  votes 
registered  may  be  test  for  deter- 
mining majority  where  statute  pro- 
vides for  registration.  Gracen  v. 
Savannah,  142  Ga.  141,  82  S.  E.  453. 
In  Fowler  v.  Oakdale,  158  Ky.  603, 
166  S.  "W.  195,  it  is  held  where  two- 
thirds  of  the  voters  were  required 
to  assent  to  a  levy  that  this  meant 
two-thirds  of  the  electors  whose 
votes  were  cast  on  the  question. 

63  Cass  County  v.  Johnston,  95 
U.  S.  360,  24  L.  ed.  416.  See  also 
Hawkins  v.  Carroll  Co.,  50  Miss. 
735:  Milner  v.  Pensacola,  2  'Woods 
(U.  S.)  632;  Taylor  v.  McFadden, 
84  Iowa  262,  50  N.  W.  1070;  Bryan 
V.  Lincoln,  50  Nebr.  620.  70  N.  W. 
252,  35  L.  R.  A.  752.  See  where 
blank  ballot  is  cast.  City  of  Engle- 
wood    V.    Kern,    21    Cal.    App.    611, 


132  Pac.  780  (not  to  be  counted  for 
any  purpose). 

64  Harrington  v.  Plainview,  27 
Minn.  224,  6  N.  W.  111.  In  the 
contemplation  of  the  constitution 
and  laws  of  Louisiana,  the  property 
tax-payers  who  are  entitled  to  vote 
on  the  levy  of  a  special  tax,  for  the 
purposes  therein  mentioned,  are 
only  those  who  are  entitled  to  vote 
at  a  general  election  under  the  elec- 
tion laws  of  the  state.  MacKenzie 
V.  Wooley,  39  La.  Ann.  944.  3  So. 
128. 

6-^  People  V.  Cline,  ()l  111.  394.  But 
where  it  does  not  appear  how  many 
illegal  votes  were  cast  for  the 
subscription  nor  that  a  majority  of 
the  legal  votes  cast  were  against 
the  subscription,  and  it  is  shown 
that  the  exact  number  of  such  votes 
could  be  ascertained  with  judicial 
certainty,  the  court  will  presume 
in  favor  of  the  legality  of  the  pro- 
ceedings. Woolley  v.  Louisville 
&c.  R.  Co.,  93  Ky.  223,  19  S.  W. 
595. 

66  Cedar  Rapids  &c.  R.  Co.  v. 
Boone  Co.,  34  Iowa  45. 


i;  1U:}7 


RAILROADS 


460 


a  resolution  to  extend  aid,  adopted  by  a  two-thirds  vote.^''  It  is 
the  doctrine  of  some  of  the  cases  that,  where  a  majority  vote  is 
r.btained  by  means  of  bribery,  the  election  will  be  vitiated,  and 
the  vote  will  confer  no  authority."^  Biit  we  think  that  this  doc- 
trine cannot  apply  where  the  rights  of  third  persons,  who  have 
acted  in  good  faith,  have  intervened.  Doubtless  a  railroad  com- 
pany that  should  directly  or  indirectly  take  part  in  bribing  voters 
or  in  corrupting  election  officers  could  not  take  any  benefit  from 
the  election,  but  if  rights  were  acquired  by  it  in  good  faith  the 
wrongs  of  others  should  not  l)e  allowed  to  ]M-eju(lice  those  rights. 

§  1037  (850).  Failure  to  conform  to  the  requirements  of  the 
enabling  act — Illustrative  cases. — Some  of  the  courts  lay  down  a 
A  ery  strict  rule,  and  hold  that  they  will  not  undertake  to  say  that 
any  of  the  requirements  of  the  statute  are  immaterial  f^  but  this 
we  regard  as  an  extreme  doctrine.  We  think  that  there  may  be 
provisions  a  departure  from  which  the  courts  may  well  adjudge 
of  such  little  importance  as  not  to  invalidate  the  proceedings.^" 
Statutes  empowering  nmn)cii);ilities  to  grant  aid  to  railroad  com- 
panies are,  unquestionably,  to  receive  a  strict  construction,  but 
not  such  a  construction  as  will  make  matters  important  that  are 
clearly  immaterial.'^  It  has  been  held  that  the  fact  that  the 
meeting  for  an  election  was  not  called  by  the  particular  officer 
designated  for  that  dutv,'-  or  that  notice  of  such  meeting  was  not 


6"  Portland  &c.  R.  Co.  v.  Hart- 
ford, 58  Maine  23.  It  has  been  held 
that  a  subsequent  vote  can  not 
change  the  conditions,  either  di- 
rectl}^  or  indirectly.  People  v. 
Waynesville,  88  111.  469.  But  we 
think  this  doctrine  of  doubtful 
soundness. 

•58  People  v.  Supervisors,  27  Cal. 
655;  Butler  v.  Dunham,  27  111.  473; 
Chicago  &c.  R.  Co.  v.  Shea,  67 
Iowa,  728,  25  N.  W.  901.  See  Wool- 
ley  v.  Louisville  &c.  R.  Co.,  93  Kj-. 
223.  19  S.  W.  595. 

69  Merritt  v.  Portchester,  71  X. 
V.  309,  27  Am.  Rep.  47. 


""  A  substantial  compliance  with 
the  law  by  county  commissioners, 
is,  in  the  absence  of  fraud,  suffi- 
cient. Wilmington  &c.  R.  Co.  v. 
Comrs.,  116  N.  Car.  563,  21  S.  E. 
205. 

■1  Gooden  v.  Police  Jury.  122 
La.  755,  48  So.  196  (quoting  text). 

"-  Supervisors  v.  Schenck,  5  Wall. 
(U.  S.)  772,  18  L.  ed.  556;  Richland 
Co.  V.  People,  3  Brad.  (111.)  210. 
See  Bowling  Green  &c.  R.  Co.  v. 
Warren  Co.,  10  Bush  (Ky.)  711. 
But  it  is  held  in  Iowa  that  the  ma- 
jority of  the  board  of  township 
trustees  may  order  an  election  to 
determine     whether     aid     shall     be 


461 


PUBIilC  AID 


1037 


given  for  the  requisite  number  of  days,'"  or  that  a  vote  viva  voce 
v/as  taken  when  the  statute  required  a  vote  by  ballot,  will  be 
sufficient  grounds  for  setting  aside  any  action  of  the  municipal 
officers  based  thereon."'  So.  it  is  held  that,  where  the  town  is 
.'luthori/ed  to  vote  an  appropriation  in  aid  of  a  railroad  at  any 
"regular"  town  meeting,  it  cannot  pass  a  valid  vote  to  that  effect 
at  a  special  meeting  called  for  that  purpose,"^  but  we  do  not  he- 
lieve  that  this  doctrine  can  apply  where  the  rights  of  persons 
acting  in  good  faith  have  intervened  or  where  there  are  effective 
elements  of  an  estoppel.  It  has  been  held  that  a  failure  of  the 
commissioners  of  estimate  to  take  the  prescribed  oath  will  render 
the  assessment  void,  but  we  cannot  believe  this  doctrine  to  be 
sound,  although  it  may  be  that  under  the  particular  statute  such 
a  conclusion  is  the  only  admissible  one."*'  Where  counties  are 
authorized  to  submit  the  question  of  giving  aid  at  some  general 


voted  to  a  railroad  company,  where 
a  petition  therefor  is  signed  by  a 
majority  of  resident  freeholders  of 
the  township,  although  the  other 
trustees  are  not  notified,  being  ab- 
sent from  the  township  and  inac- 
cessible for  notice.  Young  v. 
Webster  City  &c.  R.  Co.,  75  Iowa 
140.  39  N.  W.  234.  See  also  Briggs 
v.  Raleigh,  166  N.  Car.  149,  81  S.  E. 
1084. 

'3  Harding  v.  Rockford  &c..  R. 
Co.,  65  111.  90;  Williams  v.  Roberts, 
88  111.  11.  So,  where  a  proposition 
to  vote  bonds  was  so  modified  just 
before  the  election  as  to  become  a 
new  proposition,  a  vote  upon  such 
new  proposition  without  again  giv- 
ing notice  for  the  required  time 
will  confer  upon  the  municipal  au- 
thorities no  right  to  extend  aid  of 
ciuy  kind.  Packard  v.  Jefiferson 
Co.,  2  Colo.  338.  Where  thirty 
days'  notice  is  required,  the  fact 
that  the  order  calling  the  election 
was  entered  less  than  thirty  days 
before    the    election    was    held,    is 


sufficient  evidence  that  no  legal  no- 
tice of  the  election  was  given.  Wil- 
liams V.  People,  132  III.  574,  24  N. 
E.  647.  See  also  City  of  Miami  v. 
Romfh,  66  Fla.  ,28,  63  So.  440. 

"*  New^  Haven  &c.  R.  Co.  v.  Chat- 
ham, 42  Conn.  465.  If  it  plainly 
appears  by  the  pleadings  that  a 
majority  of  the  legal  voters  did  not 
vote  for  the  subscription  the  court 
will  not  hesitate  to  set  aside  all 
the  acts  of  the  municipal  officers 
feased  thereon.  People  v.  Logan 
Co.,  63  III.  374. 

'5  Pana  v.  Lippincott,  2  Brad. 
dll.)  466.  In  Indiana  a  petition 
maj^  be  presented  to  the  board  of 
county  commissioners  at  any  reg- 
ular or  special  meeting,  and  no  re- 
strictions are  placed  upon  the  call- 
ing of  a  special  meeting  for  any 
purpose  which  the  auditor  may 
think  a  public  interest  requires. 
Jussen  v.  Board  &c.,  95  Ind.  567; 
Oliver  v.  Keightlej',  24  Ind.  514. 

'6  Merritt  v.  Portchester,  71  N. 
Y.  309,  27  Am.  Rep.  47. 


§  1038  RAILROADS  462 

or  special  election,  authority  to  hold  a  special  election  Idp  that 
purpose  will  be  implied."  The  laws  of  Nebraska  authorize  a 
city  to  issue  bonds  in  aid  of  a  railroad,  provided  the  city  council 
"shall  first  submit  the  question  of  the  issuing  of  such  bonds  to  a 
vote  of  the  legal  voters"'  of  said  city;  and  provide  that  "the  propo- 
sition of  the  question  must  be  accompanied  by  a  provision  to 
levy  a  tax  annually  for  the  pa}ment  of  the  interest  on  said  bonds 
as  it  becomes  due."  and  "shall  state  the  rate  of  interest  such 
bonds  shall  draw,  and  when  the  principal  and  interest  shall  be 
made  payable."  In  an  action  to  enjoin  the  issuing  of  certain 
bonds  of  a  city  under  this  statute  in  aid  of  a  railway,  it  appeared 
that  the  whole  question  had  not  been  submitted  to  the  electors  of 
the  city  and  that  no  \-ote  had  been  submitted  or  adopted  for  the 
payment  of  the  principal  at  any  time.  The  court  held  that  an 
injunction  should  he  granted."® 

§  1038  (851).  Conditions — Performance  of — Excuse  for  non- 
performance— Illustrative  cases. — The  general  rule  is,  as  else- 
where shown,  that  conditions  prescribed  by  the  statute  must  be 
complied  with,  but  there  may  be  cases  in  which  the  doctrine  of 
estoppel  will  preclude  the  taxpayers  and  the  municipalities  from 
successfully  insisting  upon  non-performance  as  a  defense,  and  so, 
it  seems,  there  may  be  cases  where  performance  will  be  excused. 
It  has  been  held  that  a  condition  which  cannot  lawfully  be  ful- 
filled may  be  annexed  to  a  subscription,  although  the  impossibil- 
ity of  a  performance  of  such  condition  might  render  the  sub- 
scription void.^°  Thus,  in  the  case  cited,  a  city,  imder  legislative 
authority,  issued  bonds  as  a  donation  to  a  railroad,  conditioned 

"^  Cedar    Rapids    &c.    R.    Co.    v.  should  be  conducted  under  the  ex- 

Boone  Co.,  34   Iowa  45.  istinj?  laws  relating  to  the  borrow- 

^8  Cook  V.  Beatrice,  32  Nebr.  80,  ing    of    money    by    municipalities; 

48   N.   W.  828.     See   State  v.    Bab-  and  bonds  issued  pursuant  to  such 

cock,  21    Nebr.   599,  33   N.  W.  247,  <-in    order    are    valid    in    the    hands 

59  Am.  Rep.  849;  Williams  v.  Pen-  of  bona  fide  holders.     Union  Bank 

pie,  132  111.  574,  24  N.  E.  647.  Where  v.  O.xford,  116  N.  Car.  339,  21  S.  E. 

an  act  authorizing  the   issuance   of  410. 

aid  bonds   fails   to   provide    for   an  ""  Chicago  &c.  R.   Co.  v.  Aurora, 

election  on  the  question,  the  elec-  99  111.  205. 
tion       by       necessary      implication 


463 


IM'HLIC  AID 


§1038 


tliat  they  sliould  be  ])ai(l  out  of  money  to  l)e  raised  by  a  special 
tax  upon  property  in  a  certain  part  of  the  city.  The  court  held 
that  the  city  had  a  right  to  impose  the  condition,  although  the 
constitution  of  the  state  forbade  the  collection  of  such  a  tax;  and 
since  the  condition  could  not  be  complied  with,  it  was  held  that 
the  bonds  could  not  be  enforced.^"  There  is  a  conflict  in  the 
authorities  as  to  whether  time  is  of  the  essence  of  the  contract 
where  the  subscription  of  a  town  is  conditioned  upon  the  comple- 
tion of  the  road  to  a  certain  point  within  a  limited  time.^^  But 
the  better  opinion  seems  to  be  that  the  failure  of  a  railway  com- 
pany to  comply  with  a  condition  that  it  shall  construct  its  road 
from  a  certain  point  to  a  certain  other  point  within  a  certain  time 
will  defeat  the  subscription,®-  unless  there  is  some  element  of 
waiver,  or  estoppel,  or  some  legal  excuse.  It  has  been  held  that 
this  is  so,  even  though  the  company  is  prevented  by  rains  and 
floods  from  completing  its  line  within  the  time  specified,  but 
afterward  completes  it.*^  It  has  also  been  held  that  an  agree- 
ment of  a  railroad  company  to  refund  to  a  municipal  corporation 


80  Chicago  &c.  R.  Co.  v.  Aurora, 
99  III.  205. 

81  In  the  case  of  Kansas  City  &c. 
R.  Co.  V.  Alderman,  47  Mo.  349,  it 
is  said  by  the  court  that  a  failure 
to  complete  the  road  within  the 
time  limited  may  entitle  the  coun- 
ty to  an  abatement  in  the  shape  of 
damages,  but  not  to  an  entire  re- 
lease from  payment  of  bonds  is- 
sued to  pay  a  subscription,  where 
it  is  shown  that  the  road  has,  in 
fact,  been  built. 

82  Chicago  &c.  R.  Co.  v.  Mar- 
seilles, 84  111.  145;  Memphis  &c.  R. 
Co.  V.  Thompson,  24  Kans.  170; 
McManus  v.  Duluth  &c.  R.  Co.,  51 
Minn.  30,  52  N.  W.  980;  Clark  v. 
Rosedale,  70  Miss.  542,  12  So.  600. 
See  ante,  §  129;  also  McCracken 
V.  Greensboro  &c.  R.  Co.,  168  N. 
Car.  62,  84  S.  E.  30;  Quinlan  v. 
Green    County,   205   U.    S.   410,   27 


Sup.  Ct.  505,  51  L.  ed.  860.  As  to 
what  is  a  compliance  with  a  condi- 
tion as  to  completion  and  operation 
of  the  road  within  a  certain  time, 
see  also  Provident  Life  &  T.  Co.  v. 
Mercer  County,  170  U.  S.  593,  8 
Sup.  Ct.  788,  42  L.  ed.  1156;  People 
V.  Holden,  82  111.  93;  Ogden  v.  Kir- 
by,  79  111.  555;  Southern  &c.  R.  Co. 
V.  Towner,  41  Kans.  72,  21  Pac. 
221;  Chicago  &c.  R.  Co.  v.  Make- 
peace, 44  Kans.  676,  24  Pac.  1104; 
Hodgman  v.  St.  Paul  &c.  R.  Co., 
23  Minn.  153;  Birch  Cooley  v.  First 
Nat.  Bank,  86  Minn.  385,  90  N.  W. 
789:  :\Ianchester  &c.  R.  Co.  v. 
Keene,  62  N.  H.  81;  West  Virginia 
&c.  R.  Co.  V.  Harrison  Co.  Court, 
47  W.  Va.  273,  34  S.  E.  786. 

83  ^Memphis  &c.  R.  Co.  v.  Thomp- 
son, 24  Kans.  170.  See  McManus 
V.  Duluth  &c.  R.  Co.,  51  Minn.  30, 
52  N.  W.  980. 


$  1039  RAILROADS  -164: 

the  monev  received  for  bonds  of  the  hitter  issued  in  payment  for 
stock  of  the  company,  in  case  of  a  faihire  to  construct  the  road 
Avithin  a  certain  time,  may  be  strictly  enforced  against  the  rail- 
road company  upon  its  failure  to  complete  its  line  before  the  ex- 
piration of  the  time  specified  in  the  agreement.*'  Where  a  sub- 
scription was  made  by  a  town  upon  condition  that  the  railroad 
company  should  locate  its  machine  shops  at  a  certain  point, 
which  was  accordingly  done,  and  the  subscription  was  paid,  it 
was  held  that  the  town  could  not  recover  against  a  good  faith 
purchaser  of  the  property  and  franchise  of  the  railroad  company 
for  removing  the  machine  shops  to  another  town.  The  contract 
was  personal,  and  gave  the  town  no  lien  upon  the  property  of  the 
railroad  company.*^  But  it  is  held  that  the  maintenance  and 
operation  of  the  road  during  the  life  of  the  company,  as  fixed  by 
the  charter,  is  a  consideration  or  condition  of  the  the  grant  of  aid 
by  a  m.unicipality,  and  if,  during  such  time,  the  company  aban- 
dons its  road,  the  municipality  has  a  cause  of  action  against  it 
on  common  law  principles. ^'^ 

§  1039  (851a).  Other  illustrative  cases. — The  :iuthorities  are 
in  conflict  on  the  question  of  the  right  of  the  railroad  company  to 
claim  the  aid  voted  for  the  construction  of  the  line,  where  it  does 
not,  in  fact,  construct  the  road,  but  purchases  an  existing  line. 
It  would  seem  that  the  purpose  of  the  voters  to  aid  the  construc- 
tion of  an  independent  line  would  be  defeated  by  such  action.*" 
There  are  cases  which  sustain  this  procedure  where  inconsider- 
al)le  portions  of  existing  line  are  acquired  ;''*  but  the  case  against 
such  action  would  seem  clear  where  the  railroad  company  ac- 
quires only  the  mere  lease  of  a  portion  of  another  line  which  is 

84  Chicago    &:c.    R.    Co.    v.    IMar-  N.    W.    124;    Iowa    &c.    R.    Co.    v. 

seilles,  84  111.  145.  Schenck,    56    Iowa    628,    10    X.    W. 

83  Elizabethtown    v.    Chesapeake  215. 

&c.   R.   Co.,  94  Ky.  Zll ,  22   S.  W.  s^  Stockton  &c.  R.   Co.  v.  Stock- 

609.  ton,  51  Cal.  328;  People  v.  Holden, 

86  Hinckley  v.  Kettle  River  R.  82  111.  93;  Chicago  &c.  R.  Co.  v. 
Co.,  70  :\Iinn.  105,  72  N.  W.  835.  Makepeace,   44   Kans.  676,  24  Pac. 

87  Lamb  v.  Anderson,  54  Iowa  1104;  Bradley-Ramsay  Lumber  Co. 
190,  3  N.  W.  116,  6  N.  W.  268:  v.  Perkins,  109  La.  317,  7^1  So.  351; 
Meeker  v.  Ashley,  56   Iowa    188,  9  State  v.  Clark.  23  Minn.  422. 


465  vvniAC  aid  §  1040 

teniiinal)le  by  notice. ^^  A  condition  that  the  road  shall  be  built 
lor  use  within  a  specified  time  is  to  be  reasonably  construed, 
however,  and  is  generally  regarded  as  complied  with  when  the 
road  is  built  so  as  to  be  in  as  reasonably  fit  condition  and  as  safe 
and  convenient  for  the  public  use  as  new  roads  usually  are  in 
similar  localities.'"'  So,  it  has  been  held  that,  where  a  tax  is 
voted  in  aid  of  railroad  construction  under  a  notice  providing 
that  the  tax  should  be  paid  on  the  road  being  put  in  operation 
between  two  certain  points,  the  tax  is  earned  when  the  road  is  in 
actual  operation  between  those  points,  regardless  of  the  financial 
ability  or  inability  of  the  company  to  extend  it  further.'-*^ 

§  1040  (851b).  Time  for  completion  of  road  where  not  fixed 
in  contract. — Where  no  time  is  fixed  for  the  completion  of  the 
road  the  law  will  imply  a  reasonable  time  for  the  performance 
of  this  condition. °-  There  are  holdings  that  the  time  may  be 
limited,  in  such  cases,  by  an  amendment  to  the  charter  of  the 
railroad  company  before  tlie  issue  of  the  bonds  recjuiring  con- 
struction within  a  specified  time,^^  or  by  notice  of  the  municipal- 
ity, duly  served,  that  it  will  insist  on  the  completion  of  the  road 
^vithin  a  reasonable  time."'^ 

§  1041  (852).  Conditions — Power  of  municipality  to  prescribe. 
— Where   the    statute   specifically   and   definitely    prescribes   the 

89  People  V.  Claj'ton,  88  111.  45.  freight  over  another  line  controlled 

90  Manchester      &c.      R.      Co.      v.       by  it. 

Keene.  62  N.  H.  81.     See  also  Chi-  oi  Whitney  v.  Chicago  &c.  R.  Co.. 

cago   &c.   R.   Co.  v.  Shea.  67  Iowa  1.33  Iowa  508,  110  N.  W.  912.     And 

728.    25    N.     W.    901;     Giiillory    v.  the  condition   was   held   sufficiently 

.\vo3'elles    R.    Co.,    104    La.    11,    28  complied  with  by  the  erection  of  a 

So.  899.     But  see  Hodgman  v.   St.  permanent  depot  at  the  place  pre- 

Paul    &c.    R.    Co.,    23    INIinn.    153,  scribed    although    ofif   of   the    main 

where  upon  the  issue  as  to  whether  line  and  on  a  spur  track.     See  also 

a   railroad  company  had   fully  con-  Railway  v.  Rich,  33  Iowa  113. 

structed  and  equipped   its  road  for  ^-  Green    v.     Dyersburg,    2     Flip, 

the  carriage  of  freight  by  a  certain  (U.   S.)   477,   Fed.   Cas.   No.   5,   756. 

date  so  as  to  entitle  it  to  aid  bonds,  ^^  Green    v.    Dyersburg,    2    Flip, 

it    was    held    that    the    trial    court  (U.   S.)    477.   Fed.   Cas.  No.  5,  756. 

proper!}^     admitted     evidence     that  ^^  Lynch   v.   Eastern    &c.    R.    Co., 

the    railroad    company    after    that  57  Wis.  430,  15  N.  W.  743. 
date    had    shipped   all   of   its   heavy 


§  1041 


RAILROADS 


466 


terms  or  conditions  upon  which  aid  nia\-  he  .^ranted  to  raih'oad 
companies  it  impHedly  excludes  authority  to  dispense  with  such 
terms  or  conditions  or  to  impose  any  others.  Where,  however, 
there  are  no  specific  i)rovisions  as  to  terms  and  conditions,  a 
(Hfferent  rule  applies.  It  may  be  laid  down  as  a  "general  rule  that 
a  sul)scrij)tion  may  be  made  by  a  municipal  cor])oration  upon 
conditions  annexed  by  the  legislature,  by  the  niunicii)al  officers 
who  are  given  discretion  in  the  matter,  by  the  voters  in  their 
petition  or  vote,  or  by  an  agent  appointed  to  make  the  subscrip- 
tion.'-''' It  is  implied,  it  may  be  said,  to  prevent  misunderstanding, 
that  the  general  power  of  a  public  corporation  to  prescribe  condi- 
tions does  not  authorize  it  to  prescribe  illegal  conditions  or  such 
as  are  antagonistic  to  the  general  rules  of  law.  The  enabling  act 
must  take  its  place  in  the  great  system  of  law  as  part  thereof,  and 
cannot  be  regarded  as  an  isolated  fragment  standing  by  itself  and 
,'ipart  from  other  laws.  It  has  been  held  that  specifications  in 
the  proposition  submitted  to  the  township  by  the  railroad  to  be 


«5  People  V.  Dutcher,  56  111.  144: 
People  V.  Glann,  70  111.  232;  People 
V.  Wayncsville,  88  111.  469;  People 
V.  Holdan,  91  111.  446;  Chicago  &c. 
R.  Co.  V.  Aurora.  99  111.  205:  Rit- 
tinger  v.  Bell.  65  Tiul.  445;  P.rocaw 
V.  Board,  7i  Tnd.  543.  Compare 
T^ouisville  &c.  R.  Co.  v.  Sumner, 
106  Ind.  55.  5  N.  E.  404,  55  Am. 
Rep.  719;  Merrill  v.  Welsher,  50 
Iowa  61;  Bucksport  &c.  R.  Co.  v. 
Brewer,  67  Maine  295;  Baltimore 
&c.  R.  Co.  V.  Pumphrey,  74  Md. 
86,  21  Atl.  559;  State  v.  County 
Court.  51  Mo.  522;  Cooper  v.  Sul- 
livan Co.,  65  Mo.  542;  Virginia  &c. 
R.  Co.  v.  Lyon  Co.,  6  Nev.  68;  Fal- 
coner v.  Buffalo  &c.  R.  Co..  69 
N.  Y.  491;  Port  Clinton  &c.  R.  Co. 
V.  Cleveland  &c.  R.,  13  Ohio  St. 
544.  549;  Justices  of  Campbell  Co. 
V.  Knoxville  &c.  R.  Co.,  6  Coldw. 
(Tenn.)  598;  West  Virginia  &c.  R. 
Co.  v.  Harrison  County  Ct.,  47  W. 


\'a.  273.  Where  an  act  provides 
for  a  town  meetinjj:,  "to  see  what 
sum  the  town  will  vote  to  raise  and 
appropriate  as  a  gratuity  to"  a  rail- 
road, "said  road  to  be  completed 
on  or  before"  a  day  named,  the 
town  is  empowered  to  vote  a  grat- 
uity upon  condition  that  the  road 
be  completed  in  a  reasonable  time, 
but  where  the  town  voted  aid  to  a 
railroad,  provided  that  it  completed 
the  road  before  January  1,  1878, 
but  the  clerk  failed  to  record  the 
provision  as  to  time,  and  the  road 
w^as  completed  in  August.  1878.  an 
amendment  of  the  record  in  Sep- 
tember, 1878,  by  inserting  the  con- 
dition as  to  time  within  which  the 
road  was  recjuircd  to  have  been 
completed,  will  not  be  allowed  to 
defeat  the  railroad's  claim.  Sawyer 
V.  Manchester  &  K.  R.  Co.,  62  N. 
H.  135,  13  Am.  St.  541. 


46^ 


PUBLIC  AID 


1042 


voted  upon  may  amount  to  conditions  precedent  to  the  payment 
cjI  the  subscription.^® 

§  1042   (853).     Change  of  municipality. — The  plenary  power  oi' 

the  legislature  over  municipal  corporations  empowers  it  to 
make  changes  in  the  boundaries  and  organizations  of  such 
corporations,  but  where  i)rivate  contract  rights  have  been  ac- 
quired by  third  persons  such  rights  cannot  be  impaired.  But, 
\\hile  such  rights  cannot  l^e  impaired,  there  may  be  a  change  in 
the  boundaries  of  public  corporations  if  such  rights  are  pro- 
tected. The  division  of  a  county  or  other  municipal  cor])oration 
after  a  subscription  has  been  made  will  not  affect  its  liability  to 
pay  the  stock  taken  or  bonds  issued  in  exchange  therefor.^"     But 


96  Platteville  v.  Galena  &c.  R. 
Co..  43  Wis.  493.  Bonds  were 
voted  by  a  county  to  a  railroad 
company  in  paytnent  of  subscrip- 
tion to  its  capital  stock,  on  the  con- 
dition, among  others,  that  the 
bonds  should  be  delivered  when 
the  road  was  "built  of  standard 
gauge,  and  completed  as  first-class, 
and  in  operation  by  lease  or  other- 
wise." The  court  held  that,  to  en- 
title plaintiff  to  receive  the  bonds 
of  the  county,  its  road,  if  con- 
structed according  to  the  terms  of 
the  contract,  need  not  have  been 
perfect  in  every  respect  at  the  pre- 
scribed date  for  its  completion,  but 
it  should  have  been  completed  and 
in  operation  at  that  date  in  such 
a  manner  that  it  might  be  properly 
and  regularly  used  for  the  purpose 
of  transporting  freight  and  pas- 
sengers. Southern  &c.  R.  Co.  v. 
Towner,  41  Kans.  72,  21  Pac.  221. 
See  as  to  conditions  precedent 
which  must  be  performed  to  save 
bonds  from  being  invalidated  and 
other  conditions  which  do  not  have 
that  effect,  and  as  to  estoppel  where 
bonds   are   held  by  bona   fide   pur- 


chasers. Quinlan  v.  Green  Coun- 
ty, 157  Fed.  33,  19  L.  R.  A.  (N.  S.) 
849,  and  cases  there  reviewed  in 
note. 

97  Columbia  Co.  v.  King,  13  Fla. 
451.  See  also  Glazer  v.  Borough 
of  Flemington,  85  N.  J.  L.  384,  91 
Atl.  1068,  affirming  81  N.  J.  L.  211, 
81  Atl.  163.  It  is  said  in  Hurt  v. 
Hamilton,  25  Kans.  76,  that  if  a 
town  or  county  is  divided  after  aid 
has  been  voted,  and  the  legislature 
provides  that  both  parts  shall  re- 
main liable  for  its  debts  as  before, 
only  the  proportion  of  a  debt  cre- 
ated in  extending  such  aid  may  be 
collected  from  each  part  which  its 
valuation  bears  to  the  whole  valu- 
ation at  the  time  the  aid  was  voted. 
But  a  more  reasonable  and  logical 
rule,  in  case  bonds  have  been  is- 
sued, would  be  that  stated  in  the 
text;  since  the  holder's  right  to 
enforce  payment  can  not  be  de- 
feated nor  apportioned  by  subse- 
quent legislation,  but  is  a  matter 
of  arrangement  between  the  coun- 
ties. Columbia  Co.  v.  King,  13 
Fla.  451. 


jv  1043  KAILROADS  -468 

the  portion  so  detached  will  not  be  relieved  from  liability  by  such 
v.  division,  but  may  be  compelled,  in  a  proper  case,  at  the  suit  of 
the  original  county,  to  contribute  to  such  payment. ^^  And  where, 
after  the  division  of  a  county,  funding  bonds  were  issued  by  the 
original  county  to  take  up  1)onds  issued  before  the  division,  on 
terms  more  favorable  to  the  county  than  those  upon  which  the 
loan  was  first  made,  the  court  held  the  detached  territory  liable 
on  such  funding  l^onds  to  the  same  extent  that  it  had  been  liable 
on  the  railroad  bonds.^''  In  case  of  the  extinction  of  a  municipal- 
ity by  legislative  action  after  it  has  incurred  obligations  in  aid  of 
such  an  enterprise,  they  will  survive  against  the  corporation  into 
^vhich  it  is  merged,  to  the  extent  to  Avhich  it  succeeds  to  the 
propertv  of  the  extinct  corporation.^  In  one  case  a  strip  of 
territory  along  the  side  of  a  township  was  annexed  after  an  elec- 
tion at  which  an  appropriation  was  voted,  and  the  railroad  was 
Iniilt  through  this  strip  instead  of  through  the  townshii)  as  it 
stood  at  the  time  of  the  election  according  to  the  proposition  as 
voted  upon  by  the  electors.  The  right  of  the  company  to  the 
appropriation  was  denied,  since  it  was  plain  that  no  votes  were 
cast  in  favor  of  the  road  as  located,  and  the  court  refused  to 
indulge  the  presumption  that  the  voters  would  have  approved 
of  the  change  of  route. - 

§  1043   (853a).     Effect  of  change  of  name  of  corporation. —  It  is 

the  general  rule  that  a  change  in  the  name  of  a  corporation, 
either  l)y  the  legislature  or  by  the  stockholders  of  the  corporation 
under  legislative  authority,  does  not  affect  the  identity  of  the 
corporation  or  in  any  way  affect  the  rights,  privileges  or  obliga- 
tions previously  acquired  or  incurred  l)y  it.  It  follows  that  taxes 
collected,  or  subscriptions  made  to  aid  in  the  building  of  a  rail- 
road, are  not  invalidated  by  a  change  in  the  name  of  a  railroad 
company.^'     As -observed  in  one  of  the  cases,  "the  mere  change 

!'8  Sedgwick    .Co.     v.     P.ailcy,     11  100  L'.  S.  514.  25  L.  ed.  699. 

Kans.  631.     Contra,   State   v.   Lake  ^  Ahns  v.  Whitney,  43  Tnd.  83. 

City,  25   Minn.  404.  s  Reading  v.  Wcddor,  66  Til.  80; 

8»  ^Marion   Co.   v.   Harvey   Co.,  26  Commonwealth     v.     T'ittshurg,     41 

Kans.  181.  Pa.  St.  278. 

1  Mount    Pleasant    v.    Beckwilli, 


4{y.) 


PUBLIC  AID 


§1044 


(jf  names  docs  not  and  cannot  change  things  or  their  properties, 
nor  does  the  change  of  a-  name  of  a  thing  imply  any  such  change 
of  properties."'* 

§  1044  (854).  Limitations  upon  the  amount. — The  usual 
course  is  to  prescribe  in  the  cnal)ling  act  the  amount  of  aid  that 
may  be  granted,  and  where  the  amount  is  fixed  the  municipality 
has  no  power  to  go  beyond  it.  But  the  amount  is  not  always 
fixed  1)y  the  statute,  nor  is  there  alwa}'s  a  constitutional  limita- 
tion upon  the  power  of  municipalities  to  incur  debts.  Where 
the  discretionary  power  of  fixing  the  amount  is  vested  in  the 
\oters,^  or  in  certain  designated  officers,^  it  should  be  exercised 
by  fixing  the  amount  before  a  subscription  can  lawfully  be  made. 
It  has  been  held  that  a  vote  that  an  amount  not  exceeding  a  cer- 
tain sum  shall  be  subscri])ed  will  not  confer  authority  to  make 
the  subscription.  We  suppose,  however,  that  where  a  discre- 
tionary power  respecting  the  amount  of  aid  that  shall  be  granted 
is  vested  in  the  municipality,  a  failure  to  designate  the  amount 


4  Reading  v.  Wedder,  66  111.  80. 
So  a  municipal  corporation  cannot 
extinguish  its  debts  by  merely 
changing  its  name  or  reorganizing 
under  a  new  charter  with  the  same 
people  and  property.  Wilson  v. 
King's  Lake  Drainage  &c.  Co.,  257 
^lo.  266,  165  S.  W.  735. 

5  Cincinnati  &c.  R.  Co.  v.  Wells, 
39  Ind.  539. 

^  [Mercer  Co.  y.  Pittsburgh  &c.  R. 
Co.,  27  Pa.  St.  389.  An  act  amend- 
ing an  act  incorporating  the  Pitts- 
burgh &  Erie  Railroad  Company, 
provides  that  subscriptions  to  the 
stock  of  said  railroad  company  by 
certain  counties  "shall  be  made  by 
the  county  commissioners  after, 
and  not  before,  the  ainount  of  such 
subscriptions  shall  have  been  des- 
ignated, advised,  and  recommended 
by  the  grand  jury."  Bonds  of 
Mercer  county  given  for  stock  sub- 


scribed for  by  the  commissioners, 
on  the  mere  recommendation  of 
the  grand  jury  that  they  subscribe 
for  an  amount  not  exceeding  $150,- 
000,  were  held  to  be  illegal,  on  the 
ground  that  all  the  discretionary 
power  was  vested  in  the  grand 
jury  by  said  act  and  could  be  ex- 
ercised by  no  one  else.  Frick  v. 
fiercer  Co.,  138  Pa.  St.  523,  21  Atl. 
6,  27  W.  N.  Cas.  352.  Failure  to 
state  the  maximum  amount  pro- 
posed to  be  subscribed  will  not  in- 
validate an  order  directing  the  sub- 
mission to  the  voters  of  the  ques- 
tion of  a  subscription  to  aid  a  rail- 
road, under  a  charter  providing  for 
subscriptions  according  to  the 
forms  prescribed  by  the  V^irginia 
code  of  1873.  Taylor  v.  Board  of 
Supervisors,  86  Va.  506,  10  S.  E. 
433,  13  Va.  L.  J.  802,  29  Am.  & 
Eng.   Corp.  Cas.   187. 


<:  1045  RAILROADS  470 

prior  to  making  the  final  contract  would  not  make  the  proceed- 
ings void  as  against  third  persons  who  had  acquired  rights  in 
good  faith  and  upon  the  belief  that  the  proceedings  were  regular. 
If  the  proceedings  were  void  in  the  proper  sense  of  the  tenu.  ancl 
not  simply  irregular,  then,  as  we  believe,  the  principle  of  estoppel 
would  be  applied  for  the  protection  of  third  persons  who  had  ac- 
([uired  rights  in  good  faith,  but  if  the  proceedings  were  ab- 
solutely void,  then  an  estoppel  could  not  arise.  There  is  difficulty 
in  some  instances  in  determining  when  the  proceedings  are  void 
and  when  only  voidable."  Tin-  fact  that  a  township  or  a  city  is 
indebted  to  the  full  constitutional  amount  will  not  operate  to 
prevent  a  county  or  township,  in  which  it  is  included,  from  also 
voting  aid  within  the  limits  prescribed  for  such  a  political  sub- 
division.^ Where  a  statutory  requirement  is  violated  in  desig- 
nating the  amount,  then  the  proceedings  may  usually  be  regarded 
as  void,  since  the  question  is  one  of  power  to  be  determined  from 
an  examination  of  a  public  statute.  If  the  statute  specifically 
limits  the  amount  and  the  municipality  assumes  to  grant  aid  in 
violation  of  the  statutory  provisions,  there  is  no  foundation  for 
the  proceedings,  for  the  reason  that  it  is  established  law  that  a 
municipality  cannot  aid  in  the  construction  of  a  railroad  except 
by  virtue  of  a  valid  statute  expressly  conferring  upon  it  author- 
ity to  grant  such  aid. 

§  1045  (855).  Valuation  of  property. — It  is  often  provided 
in  the  enabling  acts  that  the  limit  shall  not  exceed  a  designated 
per  centum  upon  the  value  of  property  subject  to  taxation,  and 
it  is  sometimes  difficult  to  determine  the  valuation  intended.  The 
\aluation  must,  of  course,  be  that  referred  to  by  the  statute,  but 
it  is  not  always  easy  to  determine  what  that  valuation  is.  It  has 
been  held  that,  where  the  statute  confers  authority  to  vote  aid  in 
a  sum  not  exceeding  a  certain  per  cent,  of  the  valuation  of  prop- 
erty in  the  munici])ality.  the  valuation  in  force  at  the  time  the 

7  The  genoral   rule   is  tliat  objcc-  vcnod.      Johnsoti    v.    Stark    Co.,    24 

tions,    because    of    formalities    and  111.    75:    Jasper    County    v.    Ballou, 

irregularities    in    the    proceedings,  103  C  S.  745.  26  L.  ed.  422. 

must  be  made  before  the  rights  of  ^  Irwin  v.  I. owe,  89  Ind.  540. 
innocent   third   persons   have   inter- 


471 


PUBLIC  AID 


§1046 


vote  is  taken  will  control,  althouii'h  another  valuation  is  even 
then  in  process  of  completion,  and  takes  effect  before  the  sub- 
scription is  made."  It  is  obvious  that,  unless  the  words  of  the 
statute  clearly  require  a  different  construction,  the  natural  con- 
struction is  that  an  existing  ^■aluation  is  meant  since  it  cannot  be 
presumed  that  the  action  of  the  municipal  voters  or  officers  was 
based  on  a  valuation  not  known  at  the  time  the  action  was  taken. 

§  1046    (856).     Conditions    must    be    performed. — Where    the 

C(uestion  is  not  affected  by  the  doctrine  of  estoppel  the  conditions 
[jrescribed  in  i>"ranting  the  aid  must,  as  a  general  rule,  be  per- 
formed. A  railroad  company,  or  one  claiming  through  it,  there 
being  no  estoppel,  must  perform  the  conditions  prescribed  or  else 
there  can  be  no  effective  claim  to  the  aid.  The  conditions  re- 
lating to  a  vote  of  the  people  of  the  municipality  to  a  preliminary 
petition,  or  the  like,  must,  as  a  rule,  be  substantially  complied 
with  or  the  proceedings  will  not  be  effective.  The  construction 
of  the  road  substantially  upon  the  route  as  chartered  by  the 
legislature  is  generally  a  condition  precedent  to  the  payment  of 
the  subscription. ^°     But  in  all  such  matters  the  statute  governs, 


9  Hurt  V.  Hamilton,  25  Kans.  76. 
See  ]\Iimicipal  Trust  Co.  v.  John- 
son City,  116  Fed.  458. 

10  See  Jacks  v.  Helena,  41  Ark. 
213;  Meeker  v.  Ashley,  56  Iowa 
188,  9  N.  W.  124;  Illinois  Midland 
R.  Co.  V.  Barnett,  85  111.  313;  Ra- 
venswood  &c.  R.  Co.  v.  Ravens- 
wood,  41  W.  Va.  1Z2,  24  S.  E.  597, 
56  Am.  St.  906.  But  see  Quinlan 
V.  Green  County,  157  Fed.  2>Z,  19 
L.  R.  A.  (N.  S.)  849,  affirmed  in 
211  U.  S.  382,  29  Sup.  Ct.  162,  S3 
L.  ed.  335.  For  other  conditions 
generally,  see  Citizens'  Sav.  &c. 
Assn.  V.  Perry  County,  156  U.  S. 
692,  15  Sup.  Ct.  547,  39  L.  ed.  585; 
Casey  v.  People,  132  111.  546,  24 
X.  E.  570:  People  v.  Glann,  70  111. 
232;  Atchison  &c.  R.  Co.  v.  Jeffer- 
son Co.,  21  Kans.  229;  Chicago  &c. 
R.   Co.  V.   Chase  County,  49  Kans. 


399,  30  Pac.  456;  Irwin  v.  Lowe, 
89  Ind.  540;  Bradley-Ramsay  &c. 
Co.  V.  Perkins,  109  La.  317,  Zl  So. 
357;  Coe  v.  Caledonia  &c.  R.  Co., 
27  Minn.  197,  6  N.  W.  621;  Mis- 
souri Pac.  R  Co.  V.  Tygard,  84 
Mo.  263,  54  Am.  Rep.  97.  As  to 
statutory  conditions,  see  Brecken- 
ridge  Co.  v.  ]\IcCracken,  61  Fed. 
191;  Sellers  v.  Beaver,  97  Ind.  Ill; 
Marion  Co.  v.  Center  Tp.,  105  Ind. 
422,  2  N.  E.  368;  Nixon  v.  Camp- 
bell, 106  Ind.  47,  4  N.  E.  296;  Mc- 
Manus  v.  Duluth  &c.  R.  Co.,  51 
Minn.  30,  52  N.  W.  980;  Lamb  v. 
Anderson,  54  Iowa  190,  3  N.  W. 
416.  As  to  effect  of  departure  from 
route  specified  in  charter,  see  Can- 
tillon  V.  Dubuque  &c.  R.  Co.,  78 
Iowa  48,  42  N.  W.  613,  5  L.  R.  A. 
726,  and  note. 


i;  1046 


RAILROADS 


472 


and  rei^ard  must  always  be  had  to  its  provisions.  It  has  been 
held  that  a  tax  voted  by  a  town  in  aid  of  a  railroad  whose  charter 
stated  that  its  object  was  to  construct,  operate,  and  maintain  a 
railroad  from  Dubuque,  in  a  western  and  northwestern  direction 
in  Iowa,  Minnesota,  and  Dakota,  to  a  junction  with  the  Northern 
Pacific,  was  not  invalidated  by  the  fact  that  the  company  sold 
and  merged  its  line  with  that  of  another  company  after  it  had 
completed  fifty  miles  of  road  in  Iowa,  where  the  road  of  such 
consolidated  company  extended  from  Dulnique  to  St.  Paul,  in 
Minnesota,  and  where  the  tax  was  not  conditioned  upon  the  con- 
struction of  the  original  road  as  specified  by  its  charter.^^ 


11  Cantillon    v.    Duhiuiuc    &c.    R. 
Co..  78   Iowa  48,  42  N.  W.  613,  5 
L.   R.   A.   12(y,   and   note;    Lamb   v. 
Anderson,    54   Iowa    190.   3    N.    W. 
416;    Noesen   v.    Port  Washington, 
37  Wis.  168.     See  Plattcville  v.  Ga- 
lena &c.  R.  Co.,  43  Wis.  493.  Where 
the  county  commissioners  were  au- 
thorized to  subscribe  to  the  capital 
stock     of     any     railway     company 
which  might  locate  its  road  through 
the  county,  and  to  issue  its  bonds 
in    payment    thereof,    it    was    held 
that    the    fact    that    the    road    had 
never  been    located    through    or   in 
the    county    was    sufficient   defense 
to  a  suit  upon  bonds  purporting  to 
have  been  issued  in  aid  of  a  rail- 
way   company,    even    though    they 
were   in  the   hands  of  a  bona   fide 
holder.     State  v.   Hancock   Co.,    11 
Ohio     St.     183.       See     also     Green 
County  V.  Shortell,  116  Ky.  108,  75 
S.  W.  251.     But  compare   Quinlan 
V.    Green    County,    157   Fed.   ZZ,   19 
!..    R.   A.    (N.   S.)    849,   affirmed  in 
211   U.   S.   582,  29  Sup.  Ct.   162,  53 
I.,  ed.  335.     In  Indiana  the  statute 
suspends    the    company's    right    to 
aid   voted   by   townships    until    the 
road   is   completed   and    a   train   of 
cars  is  run   over  the   same,     l^.oard 


&c.    V.    Louisville    &c.    R.    Co.,    39 
Ind.    192.     Where   an   interest   cou- 
pon   covers    a    period    before    and 
after    the    completion    and    accept- 
ance of  the  road,  only  so  much  of 
the  interest  thereon  as  was  earned 
after    such    completion    can    be    re- 
covered   under    the    act    providing 
that  no  tax  shall  be  levied  to  pay 
any    interest   which    may    have    ac- 
crued on   railroad  aid  bonds  prior 
1'")    completion    and    acceptance    of 
t'ic  road.     Grannis  v.  Cherokee,  47 
Fed.   427.     Where   the  petition   did 
not      designate     the      time     within 
which  the  road  should  be  complet- 
ed, an  injunction  will  not  lie  against 
the  collection  of  the  tax  before  the 
completion   of  the   road,   since   the 
commissioners    maj'    withhold    the 
money  until  the  road  is  completed. 
Pittsburgh   &c.    R.   Co.  v.   Harden, 
137  Ind.  486.  Zl  N.  E.  324.     A  do- 
nation may  be  made  for  the  com- 
pletion of  a  railroad  already  so  far 
laid    as    to    admit    of   running    cars 
over     it,     by     the     construction     of 
grades,    digging    ditches,    and    fur- 
nishing  and   laying   ties    and    iron. 
Barner  v.  Bayless,  134  Ind.  600,  Zi 
N.  E.  907,  34  N.  E.  502. 


473  PUBLIC  AID  §  1047 

§  1047  (857).  Preliminary  survey. —  In  some  of  the  states  a 
survey  is  required  as  a  eondition  precedent  to  the  exercise  of 
the  power  to  vote  aid.  If  such  a  survey  is  not  made  the  proceed- 
ings Avill  fall  before  a  direct  attack.  It  is  held,  however,  that  a 
popular  election  held  in  pursuance  of  the  provisions  of  such  a 
statute  to  determine  the  question  of  subscription  to  the  stock  is 
not  invalid  for  lack  of  a  final  and  definite  survey  and  location  of 
the  entire  line  of  the  company's  road,  and  that  a  substantial  loca- 
tion, defining-  the  general  direction  and  route,  and  specifying  the 
termini  of  the  road,  with  an  estimate  of  the  cost  of  construction, 
is  sufficient.'-  iMuch,  it  is  obvious,  depends  upon  the  statute 
governing  the  particular  case,  and  where  the  statute  requires  a 
survey  it  must  be  made  as  the  statute  requires.  As  the  power  to 
aid  a  railroad  enterprise  comes  from  the  enabling  act,  the  author- 
ity conferred  by  it  must  be  exercised  in  substantial  conformity  to 
the  letter  and  spirit  of  the  statute ;  and  the  preliminary  conditions 
imposed  by  it  must  be  substantially  performed  in  order  to  sustain 
the  subscription.'^  Where  the  rights  of  third  persons  have  not 
intervened  and  there  is  no  element  of  estoppel,  a  taxpayer  of  the 
municipalit}'  ma}'  have  an  injunction  to  restrain  the  levy  of  a  tax 
in  pursuance  of  such  a  vote  or  subscription,  if  all  the  substantial 
requirements  of  the  statute  have  not  been  met." 

§  1048  (858).  Petition — Requisites  of — Petitioners  —  Qualifi- 
cations of. — 'In  many  of  the  states  a  petition  of  a  designated  num- 
ber of  the  taxpayers  is  made  necessary  to  confer  authority  upon 
the  county  officials  to  extend  aid  or  to  order  an  election  for  the 

^2  Wilson  County  v.  National  statute  have  no  power  to  bind  the 
r.ank,  103  U.  S.  770,  26  L.  ed.  488.  town  bj-  an  act  not  done  in  strict 
This,  however,  was  an  action  to  compliance  with  the  authority  con- 
enforce  pajmient  of  bonds  by  bona  ferred  by  vote  of  the  tax-payers, 
fide  holders,  and  the  rule  might  be  For  ton  v.  Thompson,  71  N.  Y.  513. 
different  in  a  direct  proceeding  to  i*  Peed  v.  Millikan,  79  Ind.  86; 
test  the  validity  of  the  election  be-  Alvis  v.  Whitney,  43  Ind.  83.  See 
fore  the  rights  of  third  parties  had  People  v.  Waynesville,  88  111.  469; 
intervened.  See  Purdy  v.  Lansing.  People  v.  Spencer,  55  N.  Y.  1 ;  Da- 
128  U.  S.  557,  9  Sup.  Ct.  172,  32  viess  Co.  v.  Howard,  13  Bush  (Ky.) 
L.  ed.  531.  101:   Lawson  v.  Schnellen.  33  Wis. 

'3  People  V.  Smith.  45  N.  Y.  772.  288. 
Commissioners  appointed  under  the 


§1048 


RAILROADS 


474 


purpose  of  (leterminiiiL;"  whctluT  aid  shall  l>c  fxtfiuk-d.  TIutc  is 
imicli  diversity  of  opinion  as  to  the  rules  wliieh  j^overn  such  i)eti- 
tions.  Some  of  the  courts  lay  down  xc-ry  strict  rules.''  while 
others,  with  more  reason,  as  it  seems  to  us,  adopt  more  liberal 
rules.'®  It  may  be  said  that  the  authorities  ici'enerally  at'hrm  that 
the  petition  must  conform,  in  all  substantial  respects,  to  the  re- 
quirements of  the  statute.  In  such  a  case  the  requisite  number 
of  signers  must  ])e  ])rocured  before  any  steps  can  legally  be  taken 
toward  granting  the  aid.''  Where  such  a  petition  is  required  it 
has  been  held  that  several  petitions  may  be  circulated  at  once 
and  presented  at  different  times. '^     The  term  "taxpayers"  will  be 


15  Where  a  verification  is  re- 
quired it  should  always  be  made. 
Tt  ha<^  been  held,  pressing  the  doc- 
trine very  far,  that  the  verification 
must  cover  all  tlie  essential  allega- 
tions of  the  petition  or  it  will  be 
held  fatally  defective.  ■  Angel  v. 
Hume,  17  Hun  (N.  Y.)  374.  We 
can  not  believe  that  the  doctrine  of 
the  case  cited  can  be  correct,  if 
sound  in  anj-  case,  where  the  at- 
tack upon  the  proceedings  is  col- 
lateral. Where  the  assault  is  a 
direct  one  and  made  before  rights 
are  acquired  by  third  persons  a 
different  rule  prevails  from  that 
V  hich  obtains  where  the  proceed- 
ings of  the  miniicipality  are  as- 
sailed in  a  collateral  proceeding. 
Loesnitz  v.  Seelinger,  127  Ind.  422. 
26  N.  E.  887:  Jones  v.  Cullen,  142 
Ind.  335,  40  N.  E.  124.  See  upon 
the  general  question,  Eongfellow 
v.  Quimby,  29  Maine  196,  48  Am. 
Dec.  525:  Maxwell  v.  Board,  119 
Ind.  20,  19  N.  E.  617:  Gay  v.  Brad- 
street,  49  Maine  580,  11  Am.  Dec. 
272:  Dwight  v.  Springfield,  4  Gray 
(Mass.)  107;  Parks  v.  Boston,  8 
Pick.  (Mass.)  218.  19  Am.  Dec. 
.322;    Ballard    v.    Thomas,    19    Grat. 


(Va.)  14;  State  v.  Prince,  45  Wis. 
610. 

!•'  Gooden  v.  Police  Jury,  122  La. 
755,  48  So.  196,  203,  citing  text. 
See  also  Wilmington  v.  Railroad 
Comrs.,  116  N.  Car.  563,  21  S.  E. 
205. 

I''  People  V.  Hughitt,  5  Lans.  (N. 
Y.)  89.  Under  the  New  York  stat- 
ute providing  tliat  a  majority  of 
the  tax-payers,  other  than  those 
only  taxed  for  dogs  and  highways, 
•  if  any  municipal  corporation,  may 
petition  the  county  judge  for  the 
issue  of  railroad  aid  bonds  by  their 
itiunicipality,  the  petition  must  aver 
that  its  signers  are  a  majority  of 
tax-payers,  excluding  those  taxed 
for  dogs  and  highways  only,  though 
the  act  itself  defines  the  word  "tax- 
payers" as  used  therein  as  exclud- 
ing that  class.  Mentz  v.  Cook,  108 
N.  Y.  504,  15  N.  E.  541;  Rich  v. 
Mentz  Township,  134  U.  S.  632,  10 
Sup.  Ct.  610,  Zi  L.  ed.  1074;  Strang 
V.  Cook.  47  Hun   (N.  Y.)  46. 

18  People  V.  Hughitt,  5  Lans.  CN. 
Y.)  89.  And  that  the  initials  of  the 
Christian  name  may  be  used  in 
signing.  Good  v.  Burk,  167  Ind. 
462,  11  N.  E.  1080. 


475 


PUBLIC  AID 


§1048 


given  a  lil)eral  construction;  and  it  has  been  held  that  persons 
representing-  property  in  the  payment  of  taxes  should  be  counted, 
even  though  they  do  not  own  the  property.^"  Joint  owners  of 
property  and  partners,  it  has  been  held,  must  be  counted  separ- 
ately.-'' And  non-residents  who  pay  taxes  must  be  counted  like 
other  taxpayers,-^  unless  the  statute  restricts  the  right  of  petition 
to  residents  of  the  municipality.  But  it  has  been  held  that  the 
agent  of  a  taxpayer  is  not  a  proper  party  to  such  a  petition.-- 
Where  there  is  a  direct  attack  upon  the  proceedings  the  petition- 
ers must  be  identified  as  the  taxpayers  of  the  county.  The  fact 
that  the  names  are  the  same  as  those  on  the  assessment  roll  is 
prima  facie  evidence  that  the  persons  are  the  same  as  those  pay- 
ing taxes. -^  It  is  held  that,  where  the  petition  is  required  to  be 
signed  by  "legal  voters."  proof  that  they  are  "citizens"  of  the 
municipality  is  insufficient,-*  but  this  doctrine  can  not,  as  we 
believe,  be  justly  applied  where  there  is  a  collateral  and  not  a 
direct  attack.  It  has  been  held  that  a  town  is  not  bound  by  the 
decision  of  its  assessor  that  a  majority  of  the    taxpayers    have 


19  People  V.  Hulbert,  59  Barb. 
(X.  Y.)  446.  The  petition  for  an 
election  to  authorize  a  township  to 
subscribe  to  the  capital  stock  of  a 
railroad  company  was  in  all  re- 
spects in  conformity  with  the  pro- 
visions of  the  statute,  save  that  it. 
purported  to  be  signed  by  two- 
fifths  of  the  "legal  voters"  of  the 
township,  instead  of  "tax-payers," 
as  required  by  the  statute.  The 
voting  at  the  election  was  general, 
and  a  majority  of  the  votes  being 
for  the  subscription,  the  subscrip- 
tion was  treated  as  valid  by  all 
parties,  and  the  railroad  companjs 
on  the  faith  of  it,  changed  the  lo- 
cation of  the  road  to  conform  to  its 
conditions,  at  an  additional  ex- 
pense, and  constructed  the  road, 
read}-  for  operation.  The  town- 
ship   brought    suit    to    enjoin    the 


issue  of  bonds  in  payment  of  the 
railroad  companj-'s  stock,  as  con- 
templated by  the  subscription,  on 
the  ground  that  the  petition  was 
defective  as  purporting  to  be 
signed  by  "legal  voters"  instead  of 
"tax-payers."  The  railroad  was  al- 
lowed to  show  that  the  petition 
was  signed  by  tax-payers,  as  re- 
quired by  the  statute.  Kansas  City 
&c.  R.  Co.  V.  Rich,  45  Kans.  275, 
25  Pac.  595. 

20  People  V.  Franklin.  5  Lans. 
(N.  Y.)  129;  People  v.  Hughitt,  5 
Lans.   (N.  Y.)  89. 

21  People  V.  Oliver,  1  T.  &  C. 
(N.  Y.)   570. 

22  People  V.  Smith,  45  N.  Y.  772. 

23  People  V.  Smith.  45  N.  Y.  772. 
2*  People    V.    Supervisor    of    Old- 

tMun,  88  111.  202. 


S  1048 


RAILROADS 


476 


signed  the  petition,'-'  but  the  question  must  depend  very  largely 
upon  the  provisi(jns  of  the  statute  involved  in  the  particular  case. 
If  the  officer  is  in\ested  \\  ith  power  to  decide,  then,  as  against  a 
collateral  attack,  his  decision  is  conclusive.  Where  there  is  a 
direct  attack  upon  the  proceedings  they  will  fail  if  the  petition  be 
insufticient.  If,  howcNcr,  facts  sufficient  to  confer  jurisdiction 
over  the  general  subject  are  alleged,  a  collateral  attack  will  not 
1)revail,  although  the  petition  may  be  defective.  Strictly  speak- 
ing, all  of  the  matters  required  by  statute  should  he  fully  set  out 
iri  the  petition,-*^  but  a  failure  to  set  them  out  will  not  always  in- 
validate the  proceedings.  It  has  been  held  essential  that  the 
petition  should  direct  whether  the  money  raised  by  an  issue  oi 
bonds  should  be  invested  in  stock  or  in  bonds  of  the  railroad;-'' 
and  this  ruling  is  correct  where  there  is  a  direct  attack,  but  we 
think  that  it  can  not  be  the  law  where  the  attack  is  collateral.  So 
it  has  been  held  that  the  petition  should  specify  the  amount  to  be 
appropriated,-^  and  that  it  must  designate  with  cert  linty  the  road 


-''  People  V.  Barrett,  18  Ilun  (N. 
Y.)  206.  But  sec  Andes  v.  Ely. 
158  U.  S.  312,  15  Sup.  Ct.  954,  39 
L.  ed.  996;  Cherry  Creek  v.  Beck- 
er. 123  N.  Y.  161. 

-"  See  generally  as  to  the  peti- 
tion, Scipio  V.  Wright,  101  U.  S. 
665,  25  L.  ed.  1037;  Rich  v.  Mentz 
Township,  134  U.  S.  632,  10  Sup. 
Ct.  610,  33  L.  ed.  1074:  Andes  v. 
Ely,  158  U.  S.  312,  15  Sup.  Ct.  954, 
39  L.  ed.  996;  State  v.  Kokomo, 
108  Ind.  74.  18  N.  E.  718:  Evans- 
ville  &c.  R.  Co.  V.  Evansville,  15 
Ind.  395;  Wellsbbrough  v.  New 
York  &c.  R.  Co.,  76  N.  Y.  182: 
State  V.  Tomahawk,  96  Wis.  73,  71 
N.  W.  86. 

-"  People  V.  Van  \'alkenburgli, 
63  Barb.  (N.  Y.)  105.  But  under 
the  Indiana  statute  it  is  held  un- 
necessary to  state  in  the  petition 
whether  the  money  is  to  be  donated 
or  used  for  the  purchase  of  stock. 
Jnssen  v.  Board,  95  Ind.  567;  Petty 


V.  Myers,  49  Ind.  1.  It  is  held  in 
Indiana  that  the  lev}-  of  a  tax  to 
aid  in  the  construction  of  a  rail- 
load  is  not  vitiated  by  any  uncer- 
tainty or  ambiguity  in  the  language 
of  the  petition  for  the  appropria- 
tion, when  it  appears  that  no  one 
was  deceived  thereby,  nor  in  fact 
could  be,  since  the  intention  of  the 
jjetitioners  could  not  be  misappre- 
hended. Jussen  V.  Board  &c.,  95 
Ind.  567.  See  also  Scott  v.  Han- 
sheer,  94  Ind.  1;  Goddard  v.  Stock- 
man, 74  Ind.  400. 

28  Wilson  V.  Board,  68  Ind.  507: 
Detroit  &c.  R.  Co.  v.  Bearss,  39 
Ind.  598.  See  also  Herbert  v.  Grif- 
fith, 99  S.  Car.  1,  82  S.  E.  986.  But 
see  State  v.  Knowles,  117  La.  129, 
41  So.  439.  For  petition  held  sufifi- 
cient  in  this  regard,  see  Gooden  v. 
Police  Jury,  122  La.  755,  48  So. 
196,  203.  204.  See  also  Thomas  v. 
Blakely,  141   Ga.  488,  81   S.  E.  218. 


477  PUBLIC  AID  §  1049 

to  wliich   the   aid   shall   be   given,    where    the    inunicipaHty    is 
authorized  to  aid  either  of  two  or  more  roads. -^ 

§  1049  (859).  Notice  of  election.— Where,  as  is  usually  the 
case,  notice  of  an  election  is  required  by  the  enabling  act,  the  no- 
tice required  must  be  given. ^°  Here,  again,  it  is  necessary  to  di- 
rect attention  to  the  doctrine  of  estoppel  and  to  the  difference  be- 
tween a  direct  and  a  collateral  attack.  The  doctrine  of  estoppel 
may  often  so  operate  as  to  preclude  taxpayers  from  taking  ad- 
vantage of  defects  in  a  notice,  and  defects  may  be  available  in  a 
direct  attack  which  would  be  unavailing  if  the  attack  were  a 
collateral  one.'^'^  Formal  defects  in  a  notice  or  defects  that  are 
not  of  any  materiality  ought  not  to  be  held  to  render  the  election 
ineffective.  In  A\'isconsin  it  is  held  that  the  requirement  that 
notices  of  an  election  to  determine  whether  aid  shall  be  granted 
shall  be  posted  by  the  town  clerk  or  supervisors  need  not  be  lit- 
erally complied  with  ;  but  it  is  sufficient  if  others  post  the  notices 
for  them."-  Other  cases  hold  that  a  ^  notice  of  such  an  election 
will  be  held  sufficient  if  it  sets  forth  with  reasonable  certainty 
the  matters  to  be  acted  upon.'^ 

-"  ^lonadnock    R.    Co.    v.    Peter-  cers,   such  as   the  board   of   counts- 
borough.  49  N.  H.  281.  commissioners,     board     of     super- 

^°  See  general!}'-  as  to  the  notice,  visors  or  the  like  is  conclusive  as 

AlcClure   v.   Oxford   Tp.,   94   U.   S.  against   a   collateral   assault   where 

429,   24    L.   ed.    129;    Knox    County  there    is    some    notice,    although    it 

v.  New  York' Ninth  Nat.  Bank,  147  may  be    defective.      Hilton  v.   ]\Ia- 

U.  S.  91,  13  Sup.  Ct.  267,  2,7  L.  ed.  son.    92    Ind.    157;    Paris    v.    Rey- 

93:  Williams  v.  Roberts.  88  111.  11;  nolds,    70    Ind.    359;    Reynolds    v. 

Yarish  v.  Cedar  Rapids  &c.  R.  Co.,  Paris,  80  Ind.  14. 
72  Iowa   556,  34  N.  W.  417;  Dem-  32  phjiipg  v.  Albany,  28  Wis.  340; 

aree   v.    Johnson,    150    Ind.   419,  49  Lawson   v.   Milwaukee  &c.  R.   Co., 

N.  P.  1062.     As  to  when  there  is  a  30    Wis.    597.      See    also     City    of 

presumption   of  proper   notice,   see  Venice  v.    Lawrence,  24   Cal.   App. 

Knox  County  v.  New  York  Ninth  350,    141    Pac.    406;    Briggs    v.    Ra- 

Nat.    Bank,    147   U.    S.   91,    13    Sup.  leigh,    166    N.    Car.    149,    81    S.    E. 

Ct.  267,  2,7   L.  ed.  93;  Wilmington  1084. 

&c.  R.  Co.  V.  Onslow  County,  116  ^^  Belfast  &c.   R.    Co.  v.   Brooks, 

N.  Car.  563,  21  S.  E.  205;  State  v.  60   Maine   568,   where   the   meeting 

Lime,  23  Alinn.  521.  was  called  "to  see  if  the  town  will 

"'1  It  is  held  by  some  of  the  courts  loan   its    credit   to   aid   in   the    con- 
that   the   decision   of   the   local   ofifi-  struction"  of  the   railroad.     An  or- 


§  ior)0 


HAILKOADS 


478 


ij  1050  (859a;.  Notice  of  election — Strictness  with  reference 
thereto. —  Tlie  Supreme  Court  of  Illinois  has  stated  the  rule  under 
this  head  thus:  "where  a  niunicijiality  is  empowered  to  subscribe 
to  the  capital  stock  of  a  railroad  company  and  issue  its  bonds  in 
])aynient  of  the  subscription,  but  it  is  also  required  that  there 
,->hall, first  be  an  aftirmative  vote  of  a  majority  of  the  electors  of 
the  municipality  to  that  effect,  no  power  exists  to  make  the  sub- 
scription and  issue  the  bonds  until  after  such  vote  shall  have 
been  obtained  at  an  election  held  for  that  purpose,  called  by 
the  authority  prescribed  by  law,  and  upon  such  notice  of  the 
time  and  place  of  holding  the  election  as  the  law  shall  direct"; 
and  that  whoever  deals  in  municipal  bonds  is  charg-eable  with 
knowledge  whether  these  precedent  conditions  to  the  existence 
of  the  power  of  making  the  subscription  and  issuing  the  bonds 
have  been  complied  with.^*  Thus,  where  a  statute  required  a 
certain  number  of  notices  to  be  posted  for  a  specified  time,  it 
was  held  that  this  requirement  must  be  complied  with  in  order 
to  render  the  subscription  and  bonds  issued  in  payment  therefor 
valid   and   binding  on    the   municipality.'''''    So   it  has   been   held 


der  of  the  county  court  submitting 
to  the  voters  of  the  county  a  prop- 
osition to  subscribe  for  stock  in 
aid  of  a  railroad,  under  the  laws  of 
Missouri  in  force  March  4,  1867, 
was  not  defective  because  it  failed 
to  specify  the  name  of  the  corpo- 
ration, where  it  had  described  the 
proposed  route  with  requisite  cer- 
tainty. Ninth  Nat.  Bank  v.  Knox 
County.  2)7  Fed.  75.  Under  the 
general  law  of  Iowa,  rccjuiring  that 
the  notice  of  a  railroad  aid  tax  to 
be  voted  shall  specify  the  line  of 
railroad  to  be  aided,  it  was  held 
that  a  notice  naming  the  railroad, 
;Mid  giving  location  of  line  in  di- 
rection and  terminal  points,  meets 
the  requirements  of  the  statute. 
Yarish  v.  Cedar  Rapids  &c.  R.  Co., 
72  Iowa  556.  34  N.  W.  417;  Burges 
V.  Mabin,  70  Iowa  633,  27  N.  W. 
464. 


-4  Williams  v.  Roberts,  88  111.  11. 
.Sec  also  Wells  v.  Ponponpoc  Co., 
102  U.  S.  625,  26  L.  ed.  122:  Lin- 
coln V.  Iron  Co.,  103  U.  S.  412,  26 
L.  ed.  518:  Packard  v.  Board  &c., 
2  Colo.  338;  People  v.  Logan,  63 
111.  384;  Middleport  v.  Aetna  Ins. 
Co.,  82  111.  562;  Stebbins  v.  Ferry 
Co.,  167  111.  567,  47  N.  E.  1048; 
Demaree  v.  Johnson,  150  Ind.  419, 
49  N.  E.  1062;  Yarish  v.  Cedar 
Rapids  &c.  R.  Co.,  72  Iowa  556, 
34  N.  W.  417;  Jones  v.  Ilulburt,  13 
Nebr.  125,  13  N.  W.  5;  Justices  v. 
Knoxville  &c.  R.  Co.,  6  Coldw. 
(Tenn.)   598. 

3'->  Harding  v.  Rockford  &c.  R, 
Co.,  65  111.  90.  See  also  McClure 
v.  Oxford  Tp.,  94  U.  S.  429,  24  L. 
ed.  129;  Windsor  v.  Hallett,  97  111. 
204;  Sauerhering  v.  Iron  Ridge  &c. 
R.  Co.,  25  Wis.  447;  Philips  v.  Al- 
bany, 28  Wis.  340. 


479 


PUBLIC   AID 


§  1051 


that  the  notice  must  show  the  particular  railroad  to  the  capital 
stock  of  Avhich  the  subscription  was  to  be  made/''**  Aid  bonds  are 
generally  held  iuNalid  where  the  insufficienc}'  of  the  notice  oi  the 
election  appears  on  the  face  of  the  bonds. ^^ 

§  1051  (860).  Influencing  voters. — Some  of  the  courts  hold 
that  oral  misrepresentations  made  to  voters  to  induce  them  to 
vote  for  furnishing  aid  will  not  aflfect  the  validity  of  the  tax"^ 
if  voted  without  conditions,  although  such  misrepresentations 
are  made  by  the  agents  of  the  company,''^  but  there  is  conflict 
among  the  authorities. ^^  So  it  has  been  held  that  the  fact  that  the 
officers  of  the  municipality  were  induced  by  means  of  false  and 
fraudulent  promises  to  submit  the  question  to  a  popular  vote  will 


36  Ferris  v.  Reynolds.  70  Ind.  359. 

37  McClure  v.  Oxford  Tp..  94  U. 
S.  429,  24  L.  ed.  129;  George  v. 
Oxford,  16  Kans.  72. 

38  Cedar  Rapids  &c.  R.  Co.  v. 
Boone  Co.,  34  Iowa  45;  Platteville 
v.  Galena  &c.  R.  Co.,  43  Wis.  493. 

39  Illinois  Midland  R.  Co.  v.  Bar- 
nett,  85  111.  313.  where  the  proposed 
route  was  misrepresented.  State  v. 
Lake  City,  25  Minn.  404,  where  the 
alleged  misrepresentations  related 
to  the  location  of  car  and  machine 
shops,  etc, 

^0  Many  who  signed  a  petition 
for  the  calling  of  an  election  to 
vote  for  the  issue  of  bonds  by  the 
township  in  aid  of  a  railroad,  as 
authorized  by  the  laws  of  Nebras- 
ka, were  induced  to  sign  the  peti- 
tion by  representations  on  behalf 
of  the  railroad  that  it  would  lo- 
cate a  depot  on  a  certain  section. 
After  the  bonds  were  authorized 
the  depot  was  located  on  another 
section  and  the  aggrieved  petition- 
ers were  granted  an  injunction  re- 
straining   the    issue    of   the    bonds, 


on  account  of  the  false  represen- 
tations. In  this  case  two  agents 
of  the  company  were  engaged  in 
the  common  purpose  of  soliciting 
the  freeholders  of  a  town  to  sign 
a  petition  for  an  election  to  vote 
bonds  in  aid  of  the  railroad.  One 
made  promises  and  inducements  to 
the  freeholders,  and  shortly  after- 
ward the  other  secured  their  signa- 
tures to  the  petition.  The  court 
held  that  such  promises  and  in- 
ducements were  a  part  of  the  res 
gestae.  Wullenwaber  v.  Dunigan, 
33  Nebr.  477.  47  N.  W.  420.  See 
also  People  v.  San  Francisco,  27 
Cal.  655;  People  v.  Logan  Co.,  63 
111.  374;  Bish  v.  Stout.  77  Ind.  255: 
Demaree  v.  Johnson,  150  Ind.  419. 
49  N.  E.  1062;  Chicago  &c.  R.  Co. 
V.  Shea,  67  Iowa  628,  25  N.  W.  901; 
Chicago  &c.  R.  Co.  v.  Chase  Co.. 
43  Kans.  760,  23  Pac.  1064;  Ken- 
tucky &c.  R.  Co.  V.  Bourbon  Co.. 
85  Ky.  98,  2  S.  W.  687;  Wooley  v. 
Louisville  &c.  R.  Co.,  93  Ky.  223, 
19  S.  W.  595;  Goforth  v.  Ruther- 
ford &c.  Co.,  96  N.  Car.  535,  2  S.  E. 
361. 


^  1052 


RAILROADS 


480 


not  l)e  sufficient  grounds  for  setting  aside  the  proceedings.*^  It 
h  eems  to  us  that,  where  there  is  no  ground  of  estoppel,  and  the 
vote  in  fa\or  of  the  aid  has  been  procured  by  the  fraud  c^l  the 
beneficiary  company,  it  should  be  set  aside  upon  opportune  and 
appropriate  a]:)plication  to  the  courts,  or,  at  least,  that  such  fraud 
may  be  shown  as  a  defense  to  an  action  by  the  company,  or  an 
injunction  granted  in  a  proper  case.  But,  of  course,  to  warrant 
this  conclusion,  there  must  be  fraufl  in  all  that  the  term  implies 
on  the  i)art  of  the  beneficiary. 

§  1052   (861).     Vote  dees  not  of  itself  constitute  a  contract. — 

.\  \ ote  in  favor  of  granting  aid,  when  a  vote  is  required  by  the 
enabling  act.  is  the  foundation  of  the  power  to  contract.  It 
authorizes  the  municipality  to  enter  into  a  contract,  but  is  not, 
of  itself,  a  contract.  In  order  that  there  may  be  an  efifective 
contract  there  must  be  appropriate  action  upon  the  vote  by  the 
municipality.  Such  a  vote  does  not  constitute  a  subscription, 
and  the  power  to  sul^scribe  may  be  taken  away  by  the  legislature 
after  the  vote  is  taken  and  before  a  binding  subscription  is 
made,*-  or  agreed  to  be  made.*'*  But  after  the  agreement  to  sub- 
scribe has  been  fvillv  entered  into  it  constitutes  a  contract  which 


41  State  V.  Lake  City,  25  :\Iinn. 
404. 

■'^  Aspinwall  v.  Daviess  County, 
22  How.  (U.  S.)  364,  16  L.  cd.  296; 
Concord  v.  Portsmouth  Savings 
Bank,  92  U.  S.  625,  23  L.  cd.  628; 
Cumberland  &c.  R.  Co.  v.  Wash- 
ington Co.,  10  Bush  (Ky.)  564; 
State  V.  Garroutte,  67  AIo.  445;  List 
V.  Wheeling,  7  W.  Va.  501.  Thus 
where  a  railroad  was  entitled  to 
tlie  aid  voted  only  on  condition 
that  the  road  was  completed  with- 
in a  specified  time  "from  the  date 
of  the  subscription."  it  was  held 
that  tlie  subscription  was  consum- 
mated when  the  mayor  signed  the 
subscription  as  directed  by  a  reso- 
lution  of  the   council,   and   not  at 


the  time  of  the  passage  of  tlie  reso- 
lution. Red  River  Furnace  Co.  v. 
Tennessee  Cent.  R.  Co.,  113  Tenn. 
607,  87  S.  W.  1016.  Under  the  In- 
diana statute  of  1869,  the  simple 
voting  of  aid  by  a  township  is  not 
a  subscription  to  the  stock  of  a 
railroad  company,  but  the  sub- 
scription can  be  perfected  only  by 
the  county  board,  and  until  the 
subscription  is  so  made  no  liability 
attaches.  Hamilton  Co.  v.  State, 
lis  Ind.  70,  17  N.  E.  855. 

•'■■'■  Concord  v.  Portsmouth  Sav. 
Bank,  92  U.  S.  625,  23  L.  ed.  628. 
In  Iowa  it  is  held  that  if  money 
be  expended  before  the  repeal  of  a 
statute,  upon  the  faith  of  a  tax 
provided  for  by  it,  the  repeal  does 


481  i>li;lic  aid  §  105:i 

cannot  be  impaired  by  tbe  laws  of  the  state. ^*  Where  the  statute 
requires  soniethini>-  to  l)e  done  by  the  officers  after  the  vote  of 
the  directors,  wherein  such  officers  are  allowed  any  discretion, 
the  preliminary  vote  confers  no  rights  upon  the  company  to 
which  the  aid  is  voted,  until  the  officers  have  acted  in  making 
the  subscription.''''' 

§  1053  (862).  Aid  authorized  by  popular  vote — Duty  of  local 
officers. — \\'herc  the  statute  re(|uires  that  aid  be  granted  by  pop- 
ular vote,  and  the  voters  are  empowered  to  prescribe  conditions 
and  do  prescribe  conditions,  the  local  officers  must  carry  out  the 
will  of  the  voters.  In  such  case  the  administrative  officers  ap- 
pointed to  carry  the  vote  into  effect  can  not  make  any  change 
in  the  conditions  upon  which  the  subscription  is  voted.**'  It  is 
the  duty  of  such  officers  to  obey  the  expressed  will  of  the  voters, 
and  if  they  disobey  it  their  proceedings  will  not  be  effective  ex- 
cept where  the  doctrine  of  estoppel  applies.  Leaving  out  of 
consideration  the  principle  of  estoppel,  it  may  be  said  that  the 
conditions  prescribed  by  the  voters,  where  they  are  in  accordance 
with  the  statute,  constitute,  in  a  great  degree,  the  measure  of 
power.  Local  officers  cannot,  without  statutory  authority,  or- 
ganize taxing  districts,  and  a  vote  by  an  arbitrarily  organized 
district,  and  acts  done  in  pursuance  thereof,  are  not  valid.  It  has 
been  held  that  such  a  proceeding  cannot  be  validated  by  a  sub- 
sequent enactment  of  the  legislature,  since  such  acts  could  not 
be  said  to  be  done  by  the  representatives  of  the  people  affected 

not   invalidate   the   tax   and   it    may  voted   aid    only    upon    a    strict   per- 

be  collected.     Surges  v.  ]Mabin,  70  formance   of  the   conditions.      Bro- 

lowa  633.  27  N.  W.  464;  Barthel  v.  caw    v.    Gibson    Co.,    72>    Ind.    543; 

Meader,    72    Towa    125,    2)3    N.    W.  Memphis  &c.  R.  Co.  v.  Thompson, 

446.  24  Kans.    170;   Chicago  &c.   R.   Co. 

**  Cases  cited,  supra.  v.    Aurora,    99    111.    205;    People    v. 

^-  Wadsworth  v.  St.  Croix  Co.,  4  Hitchcock.  2  T.  &  C.  (N.  Y.  S.) 
P>d.  378;  People  v.  Pueblo  Co..  2  134.  See  also  AlcCrecken  v.  Greens- 
Colo.  360;  Cumberland  &c.  R.  Co.  boro  &c.  R.  Co.,  168  N.  Car.  62, 
v.  Barren  Co.,   10  Bush   (Ky.)  604.  84  S.  E.  30. 

And    so    where    the    vote    is    for    a  '"'People   v.   Waynesville,  88   111. 

subscription     upon     condition,    the  469.     See  also  State  v.  Daviess  Co., 

railroad  company  has  a  right  to  the  64  Mo.  30. 


§  1053 


KAILKdADS 


482 


by  the  tax.'^  It  may.  however,  be  doubted  whether  the  broad 
doctrine  of  the  case  cited  can  be  sustained  since  the  {general  rule 
is  that  what  the  legislature  can  authorize  it  may  validate,*^  but 
it  is  also  to  be  kept  in  mind  that  acts  which  are  absolutely  void 
cannot  be  wilidated  by  sul)se(|nent  legislation.'"'  Where  commis- 
sioners are  appointed,  under  authority  of  the  enabling  act,  to 
make  a  subscription  for  a  municipality,  they  are  the  agents  of 
the  corporation  to  the  extent  of  making  the  subscription,  and 
it  may  adopt  or  reject  their  acts  done  outside  the  limits  of  their 
juithority.  If  they  annex  to  the  subscription  conditions  beyond 
what  are  contained  in  the  instrument  of  assent  by  which  they 
received  their  appointment  and  authority,  their  act  in  so  doing 
is  not  void,  but  such  conditions  are  binding  unless  repudiated 
by  the  municipality.^"  Such  commissioners  cannot  bind  the  town 
by  a  waiver  of  any  of  the  conditions  imposed,  or  by  an  agree- 
ment that  other  terms  and  conditions  shall  be  substituted.^^  And 


47  Williams  v.  Roberts.  88  111.  11. 

•»8  Unity  V.  Burrage,  103  U.  S. 
447.  26  L.  ed.  405;  Pelt  v.  Payne, 
60  Ark.  637,  30  S.  W.  426;  Bennett 
V.  Fisher,  26  Iowa  497;  Boyce  v. 
Sinclair,  3  Bush  (Ky.)  261;  Allen 
V.  Archer,  49  Maine  346;  Shaw  v. 
Norfolk  R.  Co.,  5  Gray  (Mass.) 
162;  Kunkle  v.  Franklin,  13  Minn. 
127,  97  Am.  Dec.  226;  State  v.  Gut- 
tenberg,  38  N.  J.  L.  419;  Brewster 
V.  Syracuse,  19  N.  Y.  116;  Com- 
monwealth V.  Marshall,  69  Pa.  St. 
328;  May  v.  Holdridge,  23  Wis.  93. 

49  People  V.  Lynch,  51  Cal.  15,  21 
Am.  Rep.  677;  Thames  &c.  Co.  v. 
Lathrop,  7  Conn.  550;  Johnson  v. 
Board,  107  Ind.  15,  8  N.  E.  1;  Ab- 
bott V.  Lindenbower,  42  Mo.  162; 
Maxwell  v.  Goetschius,  40  N.  J.  L. 
383,  29  Am.  Rep.  242;  Andrews  v. 
Eeane,  15  R.  I.  451:  Kimball  v. 
Rosendale,  42  Wis.  407.  24  Am. 
Rep.  421.  See  Hasbrouck  v.  Mil- 
waukee, 13  Wis.  Z7,  80  Am.  Dec. 
718,   and    note;    Pryor    v.    T^owiiey. 


50  Cal.  388,  19  Am.  Rep.  656;  Yeat- 
man  v.  Day,  79  Ky.  186;  State  v. 
Doherty,  60  Maine  504;  Roche  v. 
Waters,  72  Md.  264,  18  Atl.  866,  7 
L.  R.  A.  533. 

•■50  Danville  v.  Montpelier  &c.  R. 
Co.,  43  Vt.  144.  Where  a  petition 
of  tax-payers,  relating  to  an  issue 
of  railroad  aid  bonds,  provides  that 
a  ccrtani  quantity  shall  be  issi'.ed 
when  the  road  is  located  through 
the  town,  the  commissioners  ap- 
pointed in  pursuance  of  the  peti- 
tion are  thereby  authorized  to  post- 
pone their  issue  to  a  later  stage  in 
the  progress  of  the  work,  by  con- 
tract with  the  company.  Cherry 
Creek  v.  Becker,  2  N.  Y.  S.  514. 

■"'1  Falconer  v.  Buffalo  &c.  R.  Co., 
69  N.  Y.  491.  Nor  can  they  bind 
the  town  by  any  act  not  done  in 
compliance  with  the  authority  con- 
forrcd  by  the  vote  of  the  inhabit- 
ants. Horton  v.  Thompson,  71  N. 
^■.  513. 


483  PUBLIC  AID  §  1054 

-where  a  sul>scrii)tic)n.  al)S()lute  in  form,  was  made  by  commis- 
sioners appointed  by  a  town  to  make  the  subscription  upon 
certain  conditions,  and  it  appeared  at  the  hearing  of  an  applica- 
tion for  a  peremptory  writ  of  mandamus  to  compel  the  delivery 
of  bonds  by  the  town,  that  the  subscription  was  made  under  the 
belief,  induced  in  part  l>y  the  representations  of  the  railroad 
company's  officers,  that  the  tOAvn  could  not  be  compelled  to 
deliver  the  l)onds  until  an  aj^rcement  as  to  the  performance  of 
the  conditions  had  been  made,  and  that  the  conditions  had  not 
l)een  performed  by  the  relator,  the  w-rit  w'as  denied.^- 

§  1054  (863).  Contract  granting  aid — Subscription — Enforce- 
ment.— Where  the  statute  conferring  power  to  grant  aid  has 
been  complied  Avith,  and  the  railroad  company  has  fully  complied 
with  the  terms  and  conditions  of  the  statute  and  agreement,  a 
contract  exists  which  cannot  be  annulled  except,  of  course,  for 
sufficient  legal  or  equitable  cause.  Thus,  it  has  been  held  that 
authority  to  make  a  subscription  to  be  paid  by  the  issue  of  muni- 
cipal bonds  only  after  the  road  is  open  for  traffic  will  enable  a 
towm  to  make  a'  binding  subscription  from  which  it  cannot  be 
released  without  the  consent  of  the  railroad  company,  and  that 
valid  bonds  may  be  issued  after  the  completion  of  the  road  al- 
though the  statute  authorizing  the  subscription  has,  in  the  mean- 
time, been  repealed. ^^  It  may  be  laid  down  as  a  general  rule  that, 
where  the  statute  has  been  pursued  in  all  its  requirements,  and 
the  aid  regularly  voted,  and  the  railroad  company  has  complied 
with  the  conditions  imposed,  the  corporation  or  its  creditors  may 
have  a  writ  of  mandamus  to  compel  the  issue  of  the  bonds  by 
officers  whose  only  duties  are  ministerial,  and  who  are  given  no 

52  People  V.  Hitchcock,  2  Thomp.  regular,  and  the  company  has,  on 
&  C.  (N.  Y.)  134.  the    faith    of    the    vote,    expended 

53  Concord  v.  Portsmouth  Sav.  money  in  constructing  its  line  in 
Bank,  92  U.  S.  625,  23  L.  ed.  628;  the  town  which  voted  the  tax.  Can- 
Livingston  County  v.  First  Nat.  tillon  v.  Dubuque  &c.  R.  Co.,  78 
Bank,  128  U.  S.  102,  126,  9  Sup.  Ct.  Iowa  48,  42  N.  W.  613,  5  L.  R.  A. 
18.  32  L.  ed.  367.  The  repeal  of  726,  and  note.  See  also  Powell  v. 
the  law  under  which  a  tax  was  Brunswick  Co.,  88  Va.  707,  14  S.  E. 
voted    will    not    invalidate    the    tax  543. 

where   the   proceedings   have   been 


S' 


ior)4 


K  AII.KOADS 


48-4 


discretion  in  the  matter.''  If  no  conditions  are  imposed,  the 
officers  ma\'  he  compelled  to  make  the  suhscription  as  soon  as 
it  is  fully  authorized  hy  a  vote  and  the  rights  of  the  beneficiary 
become  vested."'^    But  until  there  is  an  effective  contract  there 


^*  United  States  v.  Clarke  Coun- 
ty, 96  U.  S.  211,  24  L.  ed.  628; 
Muscatine  v.  Mississippi  &c.  R. 
Co.,  1  Dill.  (U.  S.)  536:  Selma  &c. 
R.  Co.,  Ex  parte,  45  Ala.  696.  6 
.A.m.  Rep.  722;  Brodie  v.  McCabe, 
33  Ark.  690;  Napa  Valley  R.  Co. 
V.  Napa  Co.,  30  Cal.  435;  Chicago 
&c.  R.  Co.  V.  St.  Anne,  101  111.  151: 
Mt.  Vernon  v.  Hovey.  52  Ind.  563; 
Cumberland  &c.  R.  Co.  v.  Wash- 
ington Co.,  10  Bush  (Ky.)  564; 
Rowland  v.  Eldeidge,  43  N.  Y.  457; 
Raleigh  &c.  R.  Co.  v.  Jenkins,  68 
N.  Car.  502;  Cincinnati  &c.  R.  Co. 
V.  Clinton  Co..  1  Oliio  St.  77: 
Louisville  &c.  R.  Co.  v.  County 
Court.  1  Sneed  (Tonn.)  637,  62  Am. 
Dec.  424.  Under  the  Kansas  act  of 
1885.  relating  to  municipal  aids  to 
railroads,  ]iro\i(ling  tliat  townslnips 
shall  issue  no  more  than  $15,000 
and  five  per  cent,  on  its  assessed 
value  for  such  purpose,  a  subscrip- 
tion to  the  amount  limited,  duly 
made  and  accepted  l)y  the  com- 
pany, is  a  contract  binding  on  the 
township,  and  the  conditions  being 
performed,  the  company  is  entitled 
to  the  township  bonds  to  the  ex- 
clusion of  another  road,  to  whose 
stock  the  town  has  afterwards  sub- 
scribed, though  the  latter  perform 
its  conditions  first.  Chicago  &c.  R. 
Co.  v.  Board  &c..  38  Kans.  597.  16 
Pac.  828.  In  case  of  a  subscription 
to  the  stock  of  a  railroad  company 
by  the  county  board,  the  certificate 
of  stock  thus  subscribed  may  be 
(ienianded    as    a    condition    of    the 


payment  of  the  money,  and  where 
the  property  of  such  company  is 
sold  on  foreclosure,  and  bought  in 
b}'  a  new  company  having  no 
power  to  issue  stock  r)f  the  old 
com])any,  sucli  new  company  can 
not,  l)y  mandamus,  compel  the  levy 
of  a  tax  for  the  purpose  of  paying 
them  the  amount  voted  to  be  paid 
for  stock  in  the  original  company. 
Board  of  Commissioners  v.  State, 
115  Ind.  64,  70,  4  N.  R.  589.  7  N.  E. 
855.  If  one  whose  land  has  been 
taken  for  use  in  the  construction 
of  a  railroad  without  compensation 
so  assents  to  the  entry  of  the  rail- 
road as  to  waive  his  right  to  dis- 
possess it.  the  omission  to  make 
.such  compensation  can  not  be 
urged  as  a  defense  to  an  action  by 
a  railroad  to  recover  money  voted 
by  a  city  to  the  railroad  company 
to  be  paid  on  completion  of  the 
road.  Manchester  &c.  R.  Co.  v. 
Keene,  62  N.  H.  81. 

55  People  V.  Cass  Co.,  77  III.  438; 
People  V.  Logan  Co.,  63  111.  374. 
The  suin-emc  court  of  Kansas  has 
held  that  the  vote  of  the  people  of 
a  county  to  subscribe  for  the  stock 
of  a  railroad  company  and  to  issue 
its  bonds,  does  not  create  a  con- 
tract between  the  county  and  the 
company,  even  though  such  vote 
was  upon  conditions  which  the 
company'  subsequently  performed: 
and  the  court  refused  a  mandamus 
to  compel  the  subscrciption.  Land 
Grant  &c.  R.  Co.  v.  Davis  Co.,  6 
Kans.  256. 


485 


PUBLIC   AID 


§  1054 


is  no  rig-ht  to  a  iiiandanms.  The  gencM-al  rule  is  that  the  sub- 
scription will  be  helfl  to  have  been  made  as  of  the  date  when  it 
became  the  duty  of  the  officers  to  make  it.  There  is  a  sufficient 
subscription  to  entitle  the  railroad  company  to  all  the  rig-hts 
which  a  manual  sul^scription  on  its  books  would  confer,  when- 
ever the  corporation,  in  the  mode  prescribed  by  the  statute, 
directs  its  officers  to  subscribe  for  a  certain  amount  of  its  stock, 
and  there  is  either  an  actual  or  constructive  acceptance  on  its 
part.-'^*'  A  manual  subscription  is  not  necessary  on  their  part, 
however,  but  the  agreement  to  take  stock  may  be  made  binding 
by  a  resolution  or  vote  of  the  municipal  authorities  or  officers 
charged  with  discretion  in  the  matter,  if  designed  to  have  that 
effect,  and  passed  for  the  purpose  of  completing  the  agreement.^' 


St!  Nugent  V.  Supervisors.  19  Wall. 
(U.  S.)  241,  21  T..  ed.  83:  State  v. 
Jennings,  48  Wis.  549.  As  to  what 
constitutes  an  effective  contract, 
see  Nugent  v.  Supervisors,  19  Wall. 
(U.  S.)  241,  21  L.  ed.  83;  Clarke 
Co.  v.  Paris  &c.  Turnpike  Co.,  11 
B.  ?*[on.  (Ky.)  143;  Shelby  Co.  Ct. 
v.  Cumberland  &c.  R.  Co.,  8  Bush. 
(Ky.)  209;  Welch  v.  Post,  99  111. 
471;  Clay  County  v.  Society  for 
Savings,  104  U.  S.  579,  26  L.  ed. 
856.  The  mere  vote  by  the  inhab- 
itants of  a  municipality  to  the  ef- 
fect that  bonds  shall  be  issued  does 
not  make  the  contract  to  issue 
them  a  binding  one.  State  v.  Lan- 
caster Co.,  6  Nebr.  214;  Harshman 
V.  Bates  County,  92  U.  S.  569,  23 
L.  ed.  747;  Chesapeake  &c.  R.  Co. 
v.  Barren  Co.,  10  Bush  (Ky.)  604; 
Bound  V.  Wisconsin  R.  Co.,  45  Wis. 
543;  Jeffries  v.  Lawrence,  42  Iowa 
498;  Land  Grant  R.  Co.  v.  Davis 
Co.,  6  Kans.  256. 

5-  Cass  County  v.  Giilett.  100  U. 
S.  585,  25  L.  ed.  585;  Illinois  Mid- 
land R.  Co.  v.  Barnett.  85  111.  313; 
Tustices    Countv    Ct.    v.    Paris    &c. 


Tpk.  Co.,  11  B.  Mon.  (Ky.)  143. 
See  also  Bates  County  v.  Winters, 
112  U.  S.  325,  5  Sup.  Ct.  157,  28 
L.  ed.  744;  State  v.  Delaware  Co.. 
92  Ind.  499;  Nelson  v.  Haywood 
County,  87  Tenn.  781,  11  S.  W. 
885,  4  L.  R.  A.  648.  Where  the 
order  is  that  a  subscription  be 
made  with  conditions  and  terms 
?nne.xed.  and  it  is  not  of  itself 
final  and  complete,.such  order  must 
be  fully  obeyed  to  render  the  sub- 
scription binding.  Bates  County  v. 
Winters,  97  U.  S.  83,  24  L.  ed.  933. 
Where  the  law  requires  stock  to  be 
paid  for  at  the  time  it  is  subscribed, 
the  railroad  company  has  no  right 
to  the  voted  aid  until  the  stock  is 
subscribed  and  the  money  paid. 
And  it  can  not  by  mandate  compel 
the  levy  of  a  tax  voted  by  a  mu- 
nicipality to  pay  for  stock  which 
the  municipality  proposes  to  take. 
Board  &c.  v.  State,  115  Ind.  64,  4 
N.  E.  859,  7  N.  E.  855;  Board  &c. 
V.  Louisville  &c.  R.  Co.,  39  Ind. 
192.  All  the  steps  which  precede 
the  taking  of  stock,  or  the  making 
of  a  donation  bv  a  countv  in  such 


§  1055  KAILKOADS  486 

Ihf  hurdcn  of  ])r()()t  is  upon  a  railroad  company  asking"  the  cn- 
ffjrceiiUMil  of  the  issuance  of  honds,  to  show  that  the  Ixmds  are 
authorized  to  ])e  issued  1)\'  a  xote  of  the  peoj^le  had  pursuant  to 
laws  existing-  at  the  time  the  company  was  entitled  thereto.^* 

§  1055  (864).  Power  of  municipal  officers  where  the  statute 
requires  submission  to  popular  vote. — Municipal  officers,  as  is 
well  known,  have  only  such  powers  as  the  statute  confers  upon 
them,  and  munici])alities  can  only  grant  aid  when  expressly  au- 
thorized by  statute,  so  that  it  follows  that,  where  a  vote  is  re- 
quired, there  is  no  power  to  enter  into  a  contract  until  the  vote 
prescribed  has  been  taken.  It  is  correctly  held  that  a  contract 
with  reference  to  the  giving  of  aid  made  in  advance  of  a  popular 
vote  will  not  be  regarded  as  valid,  even  though  it  is  made  to 
procure  such  Note,  and  the  vote  is  afterward  obtained. ^^  The 
vote  is  the  foundation  of  the  power,  and  until  it  has  been  taken 
it  cannot  be  justly  said  that  the  municipality  had  any  power  to 
contract. 

§  1056  (865).  Decision  of  local  officers  as  to  jurisdictional 
facts. — Some  of  the  cases  hold  that  a  municipality  is  not  bound 
by  the  decision  of  its  officers  as  to  jurisdictional  facts,  unless  the 
rights  of  innocent  third  parties  have  so  intervened  as  to  estop 
it  from  disputing  the  correctness  of  such  decision,  and  that  a 
court  of  chancery  may  investigate  the  election  and  other  pre- 
liminary acts  conferring  the  alleged  right  to  extend  aid.^°    But 

a   case,  are  between  tlic   people  of  Co.,  1  Baxt.  (Tenn.)  60.     See  Hor- 

the    county    and    its    officers    only,  ton  v.  Thompson,  71  N.  Y.  513.  An 

and    only   a    voter    can    maintain   a  entry  and  order  made  by  the  board 

suit  for  mandate  for  this  purpose.  of    county    commissioners    to     the 

Board  of  Commissioners  v.  Louis-  effect  that  a  subscription  in  aid  of 

ville  &c.  R.  Co.,  39  Ind.  192;  Caffyn  railroads    submitted    to    the    sense 

v.  State,  91  Ind.  324.  of    the    "qualified    voters"    of    the 

58  Chicago  &c.  R.  Co.  v.  Mai-  county  liad  been  carried  by  a  ma- 
lory.  101  111.  583.  jority  of  such  voters,  while  it  can 

59  People  v.  Cass  Co.,  11  III.  438.  not  be  attacked  collaterally  does 
But  see  Chicago  &c.  R.  Co.  v.  not  so  adjudicate  the  question  of 
Ozark,  46  Kans.  415.  the  legality  of  the  election  that  it 

60  Winston   v.   Tennessee    &c.    R.  can    not   be   contested    by   a    direct 


487 


PUBLIC   AID 


§  1056 


there  is  conflict  upon  this  .d'eneral  question,  and  we  are  of  the 
oi:)inion  that,  where  the  attack  is  collateral,  the  decision  is  con- 
clusive, except,  perhaps,  where  no  action  constituting  a  change 
of  position  has  1)een  taken  by  the  railroad  company,  and  no 
third   persons  have   acquired    rights."^    As  between   the  munici- 


procoeding  for  that  purpose.  Nor 
do  the  facts  that  the  county  com- 
missioners have  subscribed  for 
shares  of  the  capital  stock  of  the 
railroads,  and  that  the  latter  have 
made  engagements  and  contracts 
based  upon  that  subscription,  pre- 
vent the  election  being  contested 
and  its  validity  determined  by  such 
a  proceeding.  Goforth  v.  Ruther- 
ford R.  Const.  Co.,  96  N.  Car.  535. 
2  S.  E.  361;  McDowell  v.  Ruther- 
ford R.  Const.  Co.,  96  N.  Car.  514. 
2  S.  E.  351.  The  bonds  in  excess 
of  the  amount  which  a  township 
was  authorized  to  issue  were  ob- 
tained from  the  state  treasurer  on  a 
false  certificate  by  the  township 
trustee  that  the  conditions  on  which 
they  were  issued  had  been  com- 
plied with.  The  railway  company 
was  cognizant  of  the  fraud  and  re- 
ceipted to  the  treasurer  for  the 
bonds,  but  never  had  actual  pos- 
session of  them,  though  it  assented 
to  their  delivery  to  the  contractor 
by  the  township  trustee  in  payment 
for  construction  work.  It  was  held 
that  this  did  not  constitute  a  nego- 
tiation of  the  bonds  to  an  innocent 
purchaser;  and,  as  the  conditions 
on  which  they  were  issued  had 
not  been  complied  with,  the  con- 
sideration had  failed,  and  the  town- 
ship was  entitled  to  a  decree  for 
their  surrender  and  cancellation. 
Wilson  v.  Union  Sav.  Assn.,  42 
Fed.  421.     The  acts  of  a  Kentucky 


county  court,  in  ascertaining  the 
result  of  an  election  upon  the  ques- 
tion whether  the  county  shall  sub- 
scribe to  the  stock  of  the  Kentucky 
Union  Railway  Company,  under 
Kentucky  act  of  March  10,  1854, 
and  in  subscribing  the  stock,  are 
ministerial,  and  not  judicial,  and 
the  tax-payers  are  not  confined  to 
the  remedy  by  appeal,  but  maj^ 
maintain  an  action  in  the  district 
court  to  declare  the  subscription 
void,  and  to  enjoin  the  collection 
of  the  tax  to  pay  it.  on  the  ground 
of  the  illegality  of  the  election. 
Holt.  J.,  dissenting.  Kentucky 
Union  R.  Co.  v.  Bourbon  Co.,  85 
Ky.  98,  2  S.  W.  687.  From  this 
doctrine  we  dissent. 

61  Knox  County,  Indiana,  v.  As- 
pinwall,  21  How.  (U.  S.)  539.  16  L. 
ed.  208;  Coloma  v.  Eaves,  92  U.  S. 
484.  23  L.  ed.  579;  Martin  v.  Mott. 
12  Wheat.  (U.  S.)  19.  6  L.  ed.  537; 
Douglas  County  v.  Bolles,  94  U.  S. 
104.  24  L.  ed.  46;  Venice  v.  Mur- 
dock.  92  U.  S.  494,  23  L.  ed.  583; 
Bissell  V.  Jeffersonville.  24  How. 
(U.  S.)  287,  16  L.  ed.  664;  Bank  of 
U.  S.  V.  Dandridge,  12  Wheat.  (U. 
S.)  64,  70,  6  L.  ed.  552;  Knox  Coun- 
ty V.  New  York  Ninth  Nat.  Bank, 
147  U.  S.  91,  13  Sup.  Ct.  267,  37  L. 
ed.  93:  Landford  v.  Dunklin.  71 
Ala.  594;  Goodwin  v.  Sims,  86  Ala. 
102.  5  So.  587,  11  Am.  St.  21; 
Spaulding  v.  North  &c.  Assn..  87 
Cal.  40,  24  Pac.  600,  25   Pac.  918; 


?  1056 


RAILROADS 


488 


])aiit\-  and  innocent  third  persons,  the  decision  of  the  board  of 
officers  who  are  a])])ointed  to  determine  whether  the  conditions 
precedent  to  the  makinij:  of  a  subscription  have  been  observed  is 
final  and  conclusive  on  the  nuinicipalit}-.''-"  It  has  been  held  that, 
where  a  petition  is  necessary,  it  must  show  that  it  is  signed  by 
the  required  number  of  the  class  authorized  to  present  such  a 
petition,  or  it  will  fail   to  confer  jurisdiction.*^^    We  do  not  be- 


Henline  v.  People.  81  111.  269;  Chi- 
cago &c.  Co.  V.  Chamberlain,  84 
111.  333:  Tucker  v.  Sellers,  130  Ind. 
514.  517,  30  N.  E.  531;  Demaree  v. 
Bridges.  30  Ind.  App.  131,  65  N. 
E.  601;  Ryan  v.  Varga.  37  Iowa,  78; 
Koehler  v.  Hill,  60  Iowa  543,  14  N. 
W.  738,  15  N.  W.  609;  Ela  v.  Smith, 
5  Gray  (Mass.)  121,  66  Am.  Dec. 
356;  Betts  v.  Bagley,  12  Pick. 
(Mass.)  572;  State  v.  Weatherby, 
45  Mo.  17;  State  v.  Nelson.  21  Nebr. 
572,  32  N.  W.  589;  Camden  v.  Mul- 
ford,  26  N.  T.  L.  49;  Vanderheyden 
V.  Young,  11  Johns.  (N.  Y.)  150; 
Porter  v.  Purdy,  29  N.  Y.  106.  86 
Am.  Dec.  283;  Roderigas  v.  East 
River  &c.,  76  N.  Y.,  316,  32  Am. 
Rep.  309;  Cherry  Creek  v.  Becker. 
123  N.  Y.  161,  25  N.  E.  369;  Brit- 
tain  V.  Kinnaird.  1  Brod.  &  Bing. 
432.  See  authorities  cited  Elliott 
Gen.  Prac.  §  260,  notes.  See  Citi- 
zens' Sav.  &c.  Assn.  v.  Perry  Coun- 
ty, 156  U.  S.  692,  15  Sup.  Ct.  547, 
39  L.  ed.  585. 

•5-  Knox  County,  Indiana,  v.  As- 
pinwall,  21  How.  (U.  S.)  539.  544, 
16  L.  ed.  208;  Bissell  v.  Jeflferson- 
ville,  24  How.  (U.  S.)  287,  16  L.  ed. 
664;  Coloma  v.  Eaves,  92  U.  S.  484, 
23  L.  ed.  579.  On  a  question  as  to 
the  validity  of  certain  bonds  issued 
by  a  county  to  a  railway  company, 
it  was  claimed  that  the  issue  was 
not  authorized  by  two-thirds  of  the 


qualified  voters,  as  required  by 
statute,  and  that  such  fact  would 
appear  from  an  inspection  of  the 
registration  lists,  although  the 
board  of  supervisors,  in  the  per- 
formance of  their  duties,  had  de- 
clared that  two-thirds  of  the  voters 
had  voted  for  the  measure.  The 
court  held  that  a  bona  fide  pur- 
chaser was  not  required  to  go  be- 
hind such  returns,  and  one  -who 
purchased  for  value,  without  ac- 
tual notice  of  any  wrong,  was  en- 
titled to  recover.  Madison  County 
v.  Brown,  67  Miss.  684,  7  So.  516. 
But  see  where  officers  had  no  au- 
thority to  determine  the  question 
of  performance  of  conditions  pre- 
cedent. Inhabitants  of  Harmony 
V.  Freeman,  212  Fed.  4. 

63  Wilson  V.  Caneadea,  15  Hun 
(N.  Y.)  218;  Angel  v.  Hume,  17 
Hun  (N.  Y.)  374.  See  Williams  v. 
Roberts,  88  Til.  11.  Where  under 
the  Kansas  statutes  an  election  is 
ordered  in  a  county  for  the  pur- 
pose of  authorizing  a  subscription 
to  the  capital  stock  of  a  railroad 
company,  and  an  issue  of  the  bonds 
of  the  county  in  payment  for  such 
stock,  the  election  is  ordered  upon 
a  petition  presented  to  the  county 
board,  which  does  not  contain  the 
requisite  number  of  names,  but 
wliicli  the  county  board  declares 
to    be    sufficient,    and    the    election 


489 


PUBLIC  AID 


§  1057 


Heve,  however,  that  this  can  be  the  correct  doctrine  in  cases 
where  the  local  officers  arc  empowered  to  determine  jurisdic- 
tional facts. ''^ 

§  1057  (866),  Acceptance  of  aid. — The  general  rule  is  that, 
where  an  act  is  beneficial  to  a  party,  acceptance  on  his  part  may 
be  presumed.  Idiis  principle  applies  to  cases  where  aid  is 
granted  to  railroad  companies.  As  a  rule  no  formal  acceptance 
of  the  subscription  is  necessary  on  the  part  of  the  company.  II 
it  complies  with  the  terms  upon  which  a  sul)scription  is  voted 
by  the  municipality  an  acceptance  will  be  presumed.""' 

§  1058  (867).  Ratification  of  subscription. — Where  there  is 
an  entire  absence  i)i  power  to  subscribe  to  the  stock  of  a  railroad 
company,  the  municipal  corporation  assuming  to  make  the  sub- 
scription cannot  validate  it  by  rubsequent  ratification.  Possibly 
a  statute  might  authorize  a  valid  ratification,  but  even  this  is 
doubtful.  It  setms  clear,  at  all  events,  that  where  there  is  no 
such  statute,  and  where  the  municipality  had  no  authority  to 
make  the  subscription,  it  cannot  ratify  a  subscription  so  as  to 
give  it  any  validity.'^'' 


is  held,  returns  canvassed,  and  the 
result  declared  in  favor  of  subscrib- 
ing for  the  stock  and  issuing  the 
bonds,  and  the  clerk  is  ordered  by 
the  board  to  make  the  subscrip- 
tion, and  does  so,  the  election  can 
not  stand  but  must  be  deemed  to 
be  void  because  of  want  of  a  suffi- 
cient petition.  Chicago  &c.  R.  Co. 
v.  Board  of  Comrs.,  43  Kans.  760, 
23  Pac.  1064. 

6*  Evansville  &c.  R.  Co.  v.  Ev- 
ansville.  15  Ind.  395.  See  authori- 
ties cited  in  second  preceding  note. 

s'i  State  v.  Lime,  23  Minn.  521 ; 
State  V.  Hastings,  24  Minn.  78; 
Augusta  V.  Maysville  «&c.  R.  Co., 
97  Ky.  145,  30  S.  W.  1. 

^^  Treadway  v.  Schnaul^er.  1  Dak. 
236;    Ryan    v.    Eyncli.    68    111.    160. 


If  a  municipal  corporation  votes 
to  subscribe  for  stock  of  a  railroad 
before  its  own  charter  goes  into 
effect,  the  vote  is  a  nullity,  and  no 
ratification  by  its  officers  after  the 
charter  takes  effect  can  give  it  va- 
lidity. Clark  V.  Janesville,  13  Wis. 
414,  10  Wis.  136;  Berliner  v.  Wa- 
terloo. 14  Wis.  378;  Winchester 
c'tc.  Co.  V.  Clarke  Co.,  3  Mete. 
(Ky.)  140:  Rubey  v.  Shain,  54  Mo. 
207.  But  see  Daviess  Countj'  v. 
Huidckoper,  98  U.  S.  98,  25  L.  ed. 
112.  where  bonds  were  held  valid 
although  authorized  bj^  a  popular 
vote  before  the  organization  was 
completed.  Where  bonds  were 
not  payable  annually  as  required 
bj'  city  charter  it  was  held  that  the 
invaliditv     of    the     issue    was     not 


1059 


RAILROADS 


490 


§  1059  (868).  Stock  subscribed  by  municipality — Legislative 
control  of. —  The  leg'islative  power  over  the  property  of  a  public 
or  municipal  corporation  is,  as  we  have  seen,  very  broad  and 
comprehensive.  The  rule  that  property  held  by  a  municipal  cor- 
poration is  under  legislative  control  applies  to  stock  subscribed 
by  it  in  aid  of  a  railroad  company.  The  fact  that  such  stock  is 
already  in  the  hands  of  the  municipality  will  not  prevent  the 
legislature  from  transferring  it  to  the  taxpayers,  at  least  in  the 
case  of  imperfectly  organized  municijxil  corporations,  such  as 
counties  and  townships."^  The  legislative  discretion,  where  dis- 
cretion exists,  is  not  sul)ject  to  judicial  surveillance,  for  the  only 
question  for  the  courts  in  such  cases  is  power  or  no  power. 
Under  the  general  power  which  it  possesses,  the  legislature  may 
direct  that  the  stock  so  taken  by  a  municipality  shall  be  divided 
amongst  the  taxpayers  from  whom  the  money  with  which  it  was 
purchased  was  collected,  without  laying  the  statute  open  to  the 


cured  by  the  approval  of  the  voters. 
City  of  Geneva  v.  Fenwich,  159 
App.  Div.  621,  145  N.  Y.  S.  884. 

^^  Tippecanoe  County  v.  Lucas, 
93  U.  S.  108,  23  L.  ed.  822;  Lucas 
v.  Board  of  Commissioners,  44  Ind. 
524.  In  New  York  the  taxes  col- 
lected from  the  railroad  must  be 
paid  to  the  county  treasurer  to 
form  a  sinking  fund  for  the  pay- 
ment of  the  bonds  issued  to  aid  it. 
Laws  N.  Y.  1869,  c.  907,  as  amend- 
ed by  Laws  1871,  c.  283,  and  c.  925. 
This  act  is  constitutional.  Clark, 
In  re,  v.  Sheldon,  106  N.  Y.  104,  12 
N.  E.  341;  Vinton  v.  Board  of  Su- 
pervisors, 50  Hun  600,  2  N.  Y.  S. 
367.  It  applies,  not  only  in  the 
case  of  railroads  constructed  under 
the  act  of  1869,  but  to  all  towns 
bonded  in  aid  of  railroads  con- 
structed in  or  through  them.  Clark, 
In  re,  v.  Sheldon,  106  N.  Y.  104,  12 
N.    E.   341.     Taxes  collected  by  a 


city  from  a  railroad  company,  to 
aid  which  it  had  issued  bonds,  were 
paid  over  to  the  county  treasurer 
and  b}'  him  mingled  with  the  coun- 
ty moneys,  and  never  invested,  but 
paid  over  by  him  to  his  successor. 
The  court  held  that  the  successor 
was  authorized,  under  the  statute, 
to  invest  them  for  the  benefit  of 
the  city.  Spaulding  v.  Arnold,  6 
N.  Y.  S.  336.  The  provisions  of 
the  North  Carolina  statute,  by 
which  the  county  taxes,  levied  on 
property  and  franchises  of  a  rail- 
road in  a  certain  township,  in  aid 
of  the  construction  of  which  rail- 
road the  township  has  voted  its 
bonds,  are  to  be  applied  to  pay 
interest  on  such  bonds,  not  inter- 
fering with  the  levy  of  taxes,  are 
not  unconstitutional  and  only  di- 
rect the  application  of  county  rev- 
enue. Brown  v.  Commissioners, 
100  N.  Car.  92,  5  S.  E.  178. 


491 


PUBLIC  AID 


§1060 


objection  that  it  compels  persons  to  become  stockholders  in  a 
private  enterprise.®^ 

§  1060  (869).  Rights  and  liabilities  of  municipal  corporations 
as  stockholders. —  It  is  held  that  where  a  municipal  c<>rp<n-ation, 
under  leg'islativc  authority,  suljscribes  for  stock  without  paying 
for  it  in  full,  it  stands  in  the  same  relation  to  the  company  and 
its  creditors  that  any  other  subscriber  does  who  owes  for  an 
unpaid  subscription.*^^  But.  of  course,  much  depends  upon  the 
provisions  of  the  statute  which  authorizes  the  municipality  to 
subscribe,  since  the  legislature  has  power  to  prescribe  the  rights 
and  liabilities  of  the  public  corporation.     In  general,  however, 


68  By  an  act  passed  March  15, 
1851,  the  legislature  of  Kentucky 
incorporated  the  Shelby  Railroad 
Company,  and  authorized  the  coun- 
ty of  Shelby  to  subscribe  for  stock, 
and  to  levy  taxes  to  pay  therefor, 
each  person  paying  such  tax  to  be- 
come entitled  to  his  pro  rata  share 
of  the  stock.  By  an  amendment 
of  February  3,  1869,  a  specified  por- 
tion of  Shelby  county  was  author- 
ized to  subscribe  for  stock,  issue 
bonds  in  payment  thereof,  and  levy 
taxes,  with  the  provision  that  stock 
for  which  certificates  had  been  is- 
sued to  tax-payers  should  be  voted 
by  tJie  individuals  holding  the  same. 
By  act  March  11,  1870,  the  charter 
was  again  amended,  so  as  to  pro- 
vide that  any  county,  or  part  of  a 
county,  which  had  delivered  bonds 
in  payment  of  stock,  should  be  en- 
titled to  representation,  and  to  vote 
the  amount  of  such  stock  through 
the  county  judge  and  justices  of  the 
peace.  It  was  held  that  taxes  paid 
and  used  merely  to  discharge  the 
interest  on  the  bonds  did  not  en- 
title the  tax-payers  to  stock,  and 
the  corporation   itself  was  entitled 


to  vote  the  stock  represented  by 
the  amount  of  bonds  still  outstand- 
ing. Hancock  v.  Louisville  &c.  R. 
Co.,  145  U.  S.  409,  12  Sup.  Ct.  960, 
36  L.  ed.  755;  Shelby  R.  Co.  v. 
Louisville  &c.  R.  Co.,  145  U.  S.  409, 
12  Sup.  Ct.  969,  36  L.  ed.  755.  Tax- 
payers do  not  acquire  an  equitable 
lien  upon  the  property  of  a  rail- 
road company,  in  the  hands  of  a 
purchaser  after  a  foreclosure  sale 
subject  to  equitable  liens,  by  reason 
of  payments  made  by  them  upon 
a  subscription  of  the  county  to  the 
capital  stock  of  such  company,  and 
the  refusal  of  the  company  to  is- 
sue stock  for  them  therefor,  wheth- 
er such  payments  entitle  them  to 
stock  or  not.  The  fact  that  the  pay- 
ments were  made  to  one  of  the 
contractors  for  building  the  road 
makes  no  difference.  Spurlock  v. 
•Missouri  Pac.  R.  Co.,  90  Mo.  199, 
2  S.  W.  219. 

^3  Morgan  County  v.  Allen,  103 
U.  S.  498,  26  L.  ed.  498;  Morgan 
County  V.  Thomas,  76  111.  120.  See 
also  French  v.  Teschemaker,  24 
Cal.  518. 


.^:  lotii 


KAILKOADS 


492 


it  takes  its  stock  with  all  the  incidents  which  attach  to  the  posi- 
tion of  a  stockholder.'"  Thus  it  may  be  held  liable  for  labor  and 
material  furnished  to  the  company  under  a  statute  making  stock- 
holders liable  therefor,"^  unless  the  statute  authorizing  the  sub- 
scription expressly  provides  otherwise, 

§  1061  (870).  Defenses  to  municipal  subscriptions. — Taxpay- 
ers may  defend  against  subscriptions  upon  the  ground  that  there 
has  been  a  failure  to  comply  with  the  requirements  of  the  statute, 
and  so,  in  some  cases,  may  the  munici|)alily.  It  may  be  said 
that  the  general  rule  is  that  the  same  defenses  to  the  payment  of 
subscriptions,  made  upon  condition,  are  open  to  municipalities 
ihat  mav  be  inter]:)osed  by  others  making  conditicmal  sul^scrip- 
tions.  It  is  true,  however,  as  elsewhere  indicated,  that  the  mu- 
nicipality and  the  taxpayers  may  be  estopped  by  their  conduct 
to  defend  against  the  sn1:>scriptions."- 


'^  Shipley  v.  Terre  Haute,  74  Ind. 
297.  See  Murray  v.  Charleston,  96 
U.  S.  432,  24  L.  ed.  760:  National 
I'.ank  V.  Case,  99  U.  S.  628,  25  L. 
cd.  448:  Cairo  v.  Zane,  149  U.  S. 
122,  13  Sup.  Ct.  803,  Zl  L.  ed.  673; 
Hancock  v.  Louisville  &c.  R.  Co.. 
145  U.  S.  409,  12  Sup.  Ct.  969,  Z(^ 
L.  ed.  755:  Missouri  River  &c.  R. 
Co.  V.  Miami  Co..  12  Kans.  482: 
Kreiger  v.  Shelby  R.  Co.,  84  Ky. 
66. 

''  Shipley  v.  Terre  Haute,  74  Ind. 
297. 

'-  See  Arkansas  So.  R.  Co.  v. 
Wilson  (La.  Ann.),  42  So.  976.  A 
township  subscribed  certain  war- 
rants in  aid  of  a  railroad,  which 
were  to  1)C  issued  when  the  com- 
pany should  have  built  and  put  in 
operation,  "with  c;irs  running  there- 
on, by  lease  or  otherwise,  its  said 
railroad,  between  two  designated 
cities."  The  railroad  company  built 
its    road    from    one    to    within    111 


feet  of  the  city  limits  of  the  other, 
at  which  i)oint  it  intersected  an- 
other road,  and  by  running  its  cars 
over  the  road  to  its  depot  from 
this  intersection,  it  continuously 
operated  the  road  between  the  two 
cities.  The  court  held  that  this 
was  a  substantial  compliance  with 
tlie  conditions  of  the  subscription, 
and  that  mandamus  wo,uld  lie  to 
compel  the  issue  of  the  warrants. 
Chicago  &c.  R.  Co.  v.  Makepeace, 
44  Kans.  676,  24  Pac.  1104.  Where 
a  county  subscribes  under  an  act 
authorizing  counties  to  subscribe  to 
the  construction  of  a  railroad,  such 
county,  and  the  citizens  thereof, 
must  be  taken  to  have  acted  with 
reference  to  the  fact  that  the  char- 
ter was  liable  to  be  amended  as 
occasion  sliould  require.  Powell  v. 
Supervisors  Brunswick  Co.,  88  Va. 
707,  14  S.  E.  543.  Amendments  to 
the  charter,  which  have  not  been 
acted    upon    by    the    compan3%    do 


41)8 


PUBLIC   AID 


1062 


§  1062  (871).  Estoppel  of  taxpayers. — Taxpayers  may,  by  si- 
lence and  ac{|uiesence,  estop  themsehes  from  successfully  ob- 
jecting- tliat  the  proceedings  have  not  been  conducted  in  con- 
formity to  the  stautute.  If  objections  are  seasonably  and 
appropriately  made  the}-  A\ill  often  avail  where  they  would  be 
unavailing-  if  made  after  rights  have  been  acquired  by  the  rail- 
road company  or  third  persons.  It  may  be  safely  said  that  the 
general  rule  is  that  if  the  taxpayers  stand  by  without  objection 
while  considerable  sums  of  money  are  expended  in  the  construc- 
tion of  the  road,  the  courts  will  hold  them  estopped  to  aver  that 
there    Avere    irregularities    in    the    proceedings.^^    This    doctrine 


not  release  the  enmity  froin  its 
subscription.  Taylor  v.  Board,  86 
Va.  506.  10  S.  E.  433.  See  also 
Kleise  v.  Gahisha,  78  Iowa  310,  43 
N.  W.  217;  Murfreesboro  R.  Co. 
V.  Hertford  Co.,  108  N.  Car.  56,  12 
S.  E.  952;  Baltimore  &c.  R.  Co.  v. 
Pumphrey,  74  Md.  86,  21  Atl.  559. 

73Dows  v.  Chicago.  11  Wall.  (U. 
S.)  108,  20  L.  ed.  65;  Moulton  v. 
Evansville,  25  Fed.  382:  New 
Haven  v.  Fair  Haven  &c.  R.  Co., 
38  Conn.  422,  9  Am.  Rep.  399; 
Menard  v.  Hood,  68  111.  121;  Mmi- 
cey  V.  Joest.  74  Ind.  409;  Ricketts 
V.  Spraker,  11  Ind.  371;  Jones  v. 
Cullen,  142  Ind.  335,  40  N.  E.  124; 
Kellog  V.  Ely,  15  Ohio  St.  64;  Roch- 
dale Co.  V.  King,  16  Beav.  630; 
Johnson  v.  Kessler,  76  Iowa  411, 
41  N.  W.  57.  See  also  Page  v. 
Oneida  Irr.  Dist..  26  Idaho  108,  14i 
Pac.  238.  After  the  collection  and 
payment  into  the  county  treasury 
of  taxes  voted  by  a  township  in  aid 
of  a  railway,  the  county  can  not 
set  up  the  defense  that  the  railwa}^ 
company  had  sold  and  disposed  of 
its  property  and  franchises  before 
the  taxes  became  due.  Alerrill  v. 
Marshall  Qo.,  74  Iowa  24,  36  N.  W. 


11'^.  Where  a  township  voted 
bonds  to  aid  in  the  construction  of 
a  railroad,  made  a  subscription  to 
the  capital  stock,  and  received  and 
retains  the  certificates  of  stock  is- 
sued to  it;  the  proceedings  having 
l)een  regular  and  duly  authorized, 
and  the  railroad  was  constructed 
through  the  township  in  strict  com- 
pliance with  the  terms  of  the  sub- 
scription, and  is  being  regularly 
operated,  the  township  is  estopped 
in  an  action  of  mandamus  to  com- 
pel the  issue  and  delivery  of  the 
bonds  voted,  from  asserting  that 
the  petition  presented  to  the  board 
of  county  commissioners,  request- 
ing an  election  to  be  called  at 
which  to  vote  the  bonds,  was  not 
signed  by  two-fifths  of  the  resident 
tax-payers  of  the  township,  where 
the  boaird  of  county  commissioners 
had  found  and  determined  at  the 
time  of  its  presentation  that  it  was 
so  signed,  and  was  legal  in  all  other 
respects.  Hutchinson  &c.  R.  Co. 
V.  Board  of  Comrs.  48  Kans.  70, 
28  Pac.  1078,  15  L.  R.  A.  401,  30 
Am.  St.  273;  Chicago  &c.  R.  Co.  v. 
Board  of  Comrs.  49  Kans.  399,  30 
Pac.   456. 


1063 


RA1LR0.U)S 


494 


cannot  apjily.  however,  where  there  is  an  entire  absence  of 
power,  but  it  does  apply  where  power  exists,  although  there  may 
be  many  material  errors  and  irregularities.'* 

§  1063  (872).  Remedies  of  taxpayers. — The  validity  of  a 
municii)al  subscription  or  donation,  or  the  issue  (jf  bonds  there- 
under, may  in  some  jurisdictions  1)e  tested  in  many  cases  by 
certiorari,  bill  of  re\icw,  or  writ  of  error. '°  ]')Ut  the  remedy  most 
often  resorted  to  by  taxpayers  to  prevent  illeg-al  municipal  aid. 
or  the  unlawful  levy  of  a  tax  to  pa}'  the  same,  is  that  by  way  of 
injunction.  As  a  general  rule,  any  one  or  more  taxpayers  of  the 
municipality  may  institute  a  suit  in  behalf  of  all  to  enjoin  the 
unauthorized  levy  of  a  tax  or  the  illegal  issue  or  payment  of 
l^onds.'*'  So.  the  i)ayment  of  bonds  or  a  subscription  may  be 
enjoined  by  the  taxi)ayers.  in  a  proper  case,  where  the  company 


'•*  Sinnett  v.  Moles,  38  Iowa  25 
(election  invalidated  by  fraud). 

■^^  Anderson  Co.  v.  Houston  &c. 
R.  Co.,  52  Tex.  228.  See  as  to  ac- 
tion of  board  of  commissioners  in 
regard  to  cancelling  aid  voted  be- 
ing final  unless  appealed  from,  and 
the  effect  of  dismissing  an  appeal. 
State  v.  Burgett,  151  bid.  94,  51 
N.  E.  139. 

^■8  New  Orleans  &c.  R.  Co.  v. 
Dunn,  51  Ala.  128;  Campbell  v. 
Paris  &c.  R.  Co..  71  111.  611;  Rutz 
V.  Calhoun,  100  111.  392;  Bittinger 
V.  Bell,  65  Ind.  45;  Hill  v.  Probst, 
120  Ind.  528,  22  N.  E.  644;  Alvis 
V.  Whitney,  43  Ind.  83;  Nefzger  v. 
Davenport  &c.  R.  Co.,  36  Iowa  642; 
State  V.  Hager,  91  Mo.  452:  New- 
meyer  v.  Missouri  &c.  R.  Co.,  52 
Mo.  81.  14  Am.  Rep.  394;  Winston 
V.  Tennessee  &c.  R.  Co.,  1  Baxt. 
(Tcnn.)  60;  Redd  v.  Henry  Co.,  31 
Grat.  (Va.)  695;  Lynchburg  &c.  R. 
Co.  v.  Dameron,  95  Va.  547,  28  S. 
E.  951.     See  also  Morris  v.  Merrill, 


44  Ncbr.  423,  62  N.  W.  865;  Brooks 
V.  McLean,  95  Nebr.  16,  144  N.  W. 
1067;  Gregg  v.  Sanford,  65  Fed. 
151;  Flack  v.  Hughes,  67  111.  384; 
Finney  v.  Lamb,  54  Ind.  1;  Bron- 
cnberg  v.  Board,  41  Ind.  502;  Cat- 
tell  V.  Lowry,  45  Iowa  478;  Blunt 
V.  Carpenter,  68  Iowa  265,  26  N.  W. 
438;  Kentucky  &c.  R.  Co.  v.  Bour- 
bon County,  85  Ky.  98,  2  S.  W.  687; 
Mctzger  v.  Attica  &c.  R.  Co.,  79 
N.  Y.  171;  Graves  v.  IMoore  Co. 
Comrs.,  135  N.  Car.  49,  47  S.  E. 
134.  McDougal  v.  Racine  County, 
156  Wis.  6GZ,  146  N.  W.  794;  note 
to  Pierce  v.  Hagans,  79  Ohio  St.  9, 
in  Z6  L.  R.  A.  (N.  S.)  1.  It  has  been 
held  that  an  allegation  that  the 
railroad  company  did  not  "legally" 
commence  work  was  not  equivalent 
to  an  averment  that  the  company 
failed  to  commence  work  upon  its 
road  within  two  years  from  the 
levying  of  the  tax.  Sellers  v. 
Beaver,  97  Ind.   111. 


495 


PUBLIC  AID 


§1063 


has  not  performed  the  conditions  upon  which  the  subscription 
was  made  or  the  bonds  issuedJ^  But  it  has  been  held  that  in- 
junction will  not  lie  until  after  a  forfeiture  has  been  declared.^* 
Where  the  amount  of  taxes  that  may  be  voted  and  levied  in  aid 
of  a  railroad  company  is  limited  by  law,  no  authority  exists  to 
submit  to  the  electors  the  question  of  voting  aid  in  excess  of  that 
amount,  and  taxes  levied  under  such  a  vote  may  ])e  enjoined. '^^ 
But,  as  a  general  rule,  injunction  will  not  lie  at  the  suit  of  tax- 
payers to  prevent  an  election  under  legislative  authority  to  en- 
able the  citizens  of  the  municipality  to  vote  to  levy  or  not  to  levy 
a  tax  upon  themselves  in  aid  of  a  railroad.^"  And  mere  irregular- 
ities, which  do  not  prejudice  any  substantial  rights,  will  not  be 
sufficient  ground  for  an  injunction. ^^  So,  it  has  been  held  that 
after  a  tax  has  been  voted  and  levied,  the  sufficiency  of  the  peti- 
tion or  the  result  of  the  vote  as  declared  by  the  canvassing  board 
cannot  be  collaterally  assailed  or  inquired  into  in  a  suit  by  the 
taxpayers  to  enjoin  the  collection  of  the  taxes. ^-   This  is,  indeed. 


'"Wagner  v.  Meety,  69  Mo.  150. 
See  also  Midland  v.  County  Board, 
37  Nebr.  582,  56  N.  W.  317;  Chicago 
&c.  R.  Co.  V.  Marseilles,  84  111.  145; 
Peed  V.  Millikan,  79  Ind.  86;  Lamb 
v.  Anderson,  54  Iowa  190.  But  it 
is  held  that  insolvency  of  the  com- 
pany does  not  necessarily  render  a 
tax  previously  levied  invalid.  Wil- 
son V.  Hamilton  Co.,  68  Ind.  508. 

"8  Nixon  V.  Campbell,  106  Ind. 
47,  4  N.  E.  296,  7  N.  E.  258;  Pitts- 
burg &c.  R.  Co.  V.  Harden,  137 
Ind.  486,  Zl  N.  E.  324.  See  also 
Demaree  v.  Bridges,  30  Ind.  App. 
131.  65  N.  E.  601. 

"9  Burlington  &c.  R.  Co.  v.  Clay 
Co.,  13  Nebr.  367.  See  also  Hedges 
V.  Dixon  Co.,  150  U.  S.  182,  14  Sup. 
Ct.  71;  Bradford  v.  San  Francisco, 
112  Cal.  537,  44  Pac.  912;  State  v. 
Woodside,  254  Mo.  580,  163  S.  W. 
845.  and  note  in  36  L.  R.  A.  (N. 
S.)  9. 


50  Roudanez  v.  New  Orleans,  29 
La.   Ann.   271. 

51  Ricketts  v.  Spraker,  11  Ind. 
371;  Lafayette  &c.  R.  Co.  v.  Geiger, 
34  Ind.  185;  Demaree  v.  Johnson, 
150  Ind.  419,  49  N.  E.  1062,  50  N. 
E.  376;  Milwaukee  &c.  R.  Co.  v. 
Kossuth  Co.,  41  Iowa  57;  Louis- 
ville &c.  R.  Co.  V.  Davidson  Co.,  1 
Sneed  (Tenn.)  dZl ,  (iZ  Am.  Dec. 
424;  Texas  &c.  R.  Co.  v.  Harrison 
Co..  54  Tex.  119.  See  also  Chicago 
&c.  R.  Co  V.  Grant,  Clerk  &c.,  55 
Kans.  386,  40  Pac.  654;  Robinson  v. 
Wilmington.  65  Fed.  856:  Whitney 
V.  Chicago  &c.  R.  Co.,  133  Iowa 
508,  110  N.  W.  912.  Note  in  36  L. 
R.  A.  (N.  S.)  25.  Compare,  how- 
ever, Montgomery  Co.  Comrs.  v. 
Henderson,  122  Md.  533,  89  Atl. 
858. 

s- Ryan  v.  Varga,  Zl  Iowa  78; 
Dwyer  v.  Hackworth,  57  Tex.  245. 


^  1064 


RAILROADS 


49G 


the  g'cneral  rule.^^  As  in  other  cases  in  which  nn  injunction  is 
soug'ht,  the  plaintiff  should  act  ])romptly,  and  show  the  necessary 
grounds  for  the  interposition  of  a  court  of  equity.^*  If  a  taxpayer 
delays  action  until  after  the  tax  has  been  collected  and  the  money 
paid  over  to  the  bondholders  of  the  railroad  company,  when  he 
might  have  obtained  an  injunction  restraining  the  collection  of 
the  tax  by  acting  in  time,  he  cannot  recover  the  amount  of  the 
tax  paid  by  himself  from  the  treasurer  of  the  municipality,''''  but 
there  are  cases  in  which  the  payment  of  the  tax  to  the  company 
may  be  restrained  even  after  it  has  been  collected.*''  After  bonds 
ha\e  been  issued  and  a  tax  levied  to  jiay  them,  a  taxpayer  can  en- 
join its  collection  in  a  suit  against  the  municipality  and  its  treas- 
urer only  upon  grounds  constituting  a  good  defense  on  the  part 
of  the  city  to  the  payment  of  the  bonds  in  the  hands  of  the  pres- 
ent holders. ^^ 

§  1064  (873).  Remedies  of  municipalities. — The  rights  and 
remedies  of  a  municipal  corporation  which  has  subscribed  for 
stock  in  aid  of  a  railroad  are,  in  the  main,  the  same  as  those  of 


S3  Jones  V.  Cullen,  142  Ind.  335, 
40  N.  E.  124,  and  numerous  author- 
ities there  cited;  Board  v.  Hall,  70 
Tnd.  469;  Pittsburg  &c.  R.  Co.  v. 
Harden,  137  Tnd.  486,  37  N.  E.  324; 
Bell  V.  Maish.  137  Ind.  226,  36  N.  E. 
358.  1118:  Demaree  v.  Bridges,  30 
Ind.  App.  131,  65  N.  E.  601;  Citi- 
zens' Sav.  &  L.  Assn.  v.  Perry- 
County,  156  U.  S.  692.  15  Sup.  Ct. 
547,  39  L.  cd.  585.  But  see  Ken- 
tucky Union  Ry.  Co.  v.  Bourbon 
Co.,  85  Ky.  98;  People  v.  Spencer, 
55  N.  Y.  1;  McPike  v.  Pen,  51  Mo. 
63;  DeForth  v.  Wisconsin  &c.  R. 
Co.,  52  Wis.  320,  9  N.  W.  17,  38 
Am.  Rep.  Ill,  5  Am.  &  Eng.  R. 
Cas.  28;  Harding  v.  Rockford  &c. 
R.  Co.,  65  111.  90.  See  also  as  to 
appeal  and  not  mandamus  being 
the  proper  remedy  of  petitioners 
where  a  board  refuses  for  want  of 
authority  to  call  an  election.    State 


v.   Board    of    Comrs.,    175    Ind.   400, 
94  N.  E.  716. 

8*  ]\Ioulton  V.  Evansville,  25  Fed. 
382,  10  Am.  &  Eng.  Ency.  of  Law, 
802,  857,  et  seq.;  Menard  v.  Hood. 
68  III.  121;  Vickery  v.  Blair,  134 
Ind.  554,  32  N.  E.  880;  Jones  v. 
Cullen,  142  Ind.  335,  40  N.  E.  124; 
Trustees  &c.  School  Dist.  v.  Gar- 
vey,  80  Ky.  159;  Chamberlain  v. 
Lyndeborough,  64  N.  H.  563,  14 
Atl.  865;  ante,  §  1062.  See  also 
Schmitz  V.  Zeli,  91  :\Iinn.  290,  97 
N.  W.  1049;  Parker  v.  Concord.  71 
N.  H.  468,  52  Atl.  1095. 

"•''  Butler  V.  Fayette  County,  46 
Iowa  326.  See  also  Babcock  v. 
Fond  du  Lac,  58  Wis.  230,  16  N.  W. 
625  (distinguished  in  McGowan  v. 
Paul,  141  Wis.  388,  123  N.  W.  253). 

86  Missouri  &c.  R.  Co.  v.  Miami 
Co..  12  Kans.  230. 

*"  Wilkinson   v.   Peru,   61    Ind.   1. 


497 


ITHrilC    AID 


§1064 


,'in  iiuHvidual  subscriber.**  As  a  oreneral  rule,  any  act  of  the 
railroad  company  that  would  release  an  individual  subscriber 
will  release  the  municipality  as  between  it  and  the  company,  and, 
in  a  proper  case,  a  ])ill  will  lie  for  the  rescission  of  the  subscrip- 
tion."^^  So,  the  municipality  may,  in  a  proper  case,  o])tain  an 
injunction  restraining  the  company  from  violating  conditions 
upon  \\hich  the  subscription  was  made,''^''  or  a  rescission  of  a 
fraudulent  contract  into  which  it  has  entered. °^  The  municipal- 
ity may  enforce  the  delivery  of  the  stock  in  the  same  manner, 
and.  as  a  rule,  under  the  same  circumstances  as  an  individual 
sul)scri]:)er.''-  A  provision  in  the  enabling  act  that  the  citizens 
who  pay  the  tax  shall  receive  from  the  municipality,  with  its 
consent,  the  stock  delivered  to  it  by  the  railroad  company  has 
been  held  not  to  invalidate  the  tax  or  relieve  the  municipality  of 
the  obligation  to  pay  its  subscription.^'^  Where  bonds  have  been 
issued  fraudulently  or  without  authority  of  law,  the  municipality 
may  maintain  a  suit  to  have  them  declared  void  and  canceled  by 
making  the  [bondholders  parties.^*     As  we  shall  hereafter  show, 


ss  It  occupies,  in  general,  the 
same  position  as  any  other  sub- 
scriber— no  better  and  no  worse. 
Pittsburg  &c.  R.  Co.  v.  Allegheny 
Co.,  79  Pa.  St.  210;  INIorgan  County 
V.  Allen,  103  U.  S.  498,  26  L.  ed. 
498;  Murray  v.  Charleston,  96  U.  S. 
432,  24  L.  ed.  760;  Morgan  County 
V.  Thomas,  1()  111.  120;  State  v.  Hol- 
laday,  72  Mo.  499;  Shipley  v.  Terre 
Haute,  74  Ind.  297;  Noesen  v.  Port 
Washington,  Zl  Wis.  168.  Part  of 
a  county  may  be  considered  as  a 
municipality  for  the  pupose  of  own- 
ing and  voting  stock  in  a  railroad 
company.  Hancock  v.  Louisville 
&c.  R.  Co..  145  U.  S.  409,  12  Sup. 
Ct.  969,  Z(i  L.  ed.  755. 

s"  Crawford  Co.  v.  Pittsburg  &c. 
R.  Co.,  32  Pa.  St.  141;  Lawrence 
Co.  V.  Northwestern  R.  Co.,  32  Pa. 
St.  144;  Lawrence  County's  Appeal, 
67  Pa.  St.  87. 

°o  Platteville  v.  Galena  &c.  R.  Co., 


43  Wis.   493.     See   also   Perkins   v. 
Port  Washington,  Z1  Wis.  177. 

91  People  v.  Logan  Co..  63  111. 
374. 

92  Wapello  V.  Burlington  &c.  R. 
Co.,  44  Iowa  585. 

93  Talbot  v.  Dent,  9  B.  Mon. 
(Ky.)  526;  Slack  v.  Maysville  &c. 
R.  Co.,  13  B.  Mon.  (Ky.)  1. 

9*Waverly  v.  Auditor,  100  111. 
354;  Paola  &c.  R.  Co.  v.  Anderson 
Co.,  16  Kans.  302;  Comrs.  of  An- 
derson Co.  V.  Paola  &c.  R.  Co.,  20 
Kans.  534.  See  Brooklyn  v.  In- 
surance Co.,  99  U.  S.  362,  25  L.  ed. 
416;  Roberts  v.  Bolles,  101  U.  S. 
119,  25  L.  ed.  880;  Springport  v. 
Teutonia  &c.  Bank,  75  N.  Y.  397; 
Chester  &c.  R.  Co.  v.  Caldwell  Co.. 
11  N.  Car.  486.  An  action  may  also 
lie  to  correct  errors  in  the  bonds 
and  make  them  conform  to  the 
vote  authorizing  their  issue.  Esse.x 
V.  Day,  52  Conn.  483. 


?  1065 


RAILROADS 


498 


:i  nuuiicipalil}-  which  has  aulhorily  lo  issue  negotial)le  bonds  may 
be  estopped  from  questioning  their  validity  in  the  hands  of  bona 
fide  purchasers ;  but  it  has  been  held  that  it  is  not  estopped  from 
enjoining  the  officers  of  a  railroad  company  from  disposing  of 
bonds  irregularly  issued  by  the  mere  fact  that  it  has  accepted  the 
stock,  and  levied  a  tax  to  pay  the  interest  upon  the  bonds.®^  It 
has  also  been  held  that  an  officer  of  a  railroad  company,  who, 
with  full  knowledge  that  the  bonds  ha\e  become  invalid  because 
the  company  has  ceased  to  exist,  negotiates  them  to  innocent 
purchasers,  is  liable  to  the  municipality  for  what  it  is  compelled 
to  pay  such  purchasers,""  and  a  county  may  have  the  assistance 
of  a  court  of  equity  to  restrain  its  treasurer  from  wrongfully  ap- 
fjlying  funds  in  his  hands  to  the  payment  of  void  bonds. ^^ 

§  1065  (874).  Remedies  of  railroad  companies. — Where  all 
the  j)reliminary  steps  requisite  to  the  valid  issue  of  bonds  or  the 
collection  of  the  money  voted  in  aid  of  a  railroad  company  have 
been  taken,  and  nothing  remains  but  the  ministerial  duty  to  issue 
the  bonds,  levy  the  taxes,  or  make  the  collection,  the  company, 
having  performed  all  necessary  conditions  on  its  part,  may  com- 
pel the  performance  of  such  duty  by  mandamus."®     It  has  been 


°''  ^ladisoii  Co.  v.  Paxton,  57 
:\liss.  701. 

96  Farnham  v.  Benedict,  107  N.  Y. 
159,  13  N.  E.  784.  So  where  the 
company  unlawfully  and  fraudu- 
lentl}^  negotiates  the  bonds.  Plain- 
view  v.  Winona  &c.  R.  Co.,  36 
Minn.  505,  517,  32  N.  W.  745. 

97  Missouri  River  &c.  R.  Co.  v. 
]\Iiami  Co.,  12  Kans.  230.  See  also 
?\Iidland  v.  County  Board,  2il  Nebr. 
582,  56  N.  W.  317. 

98  Cherokee  Count}'  v.  \\'i]son, 
109  U.  S.  621,  3  Sup.  Ct.  352.  27 
T..  ed.  1054;  United  States  v.  Clark 
County,  96  U.  S.  211,  24  L.  ed.  628; 
California  &c.  R.  Co.  v.  Butte  Co., 
18  Cal.  671;  Napa  Valley  R.  Co.  v. 
Napa  Co..  30  Cal.  435;  Columbia 
Co.  v.   King,  13  Fla.  451;   Chicago 


&c.  R.  Co.  V.  St.  Anne,  101  III.  151; 
People  V.  Gctzendaner,  137  111.  234, 
34  N.  E.  297;  Jager  v.  Doherty,  61 
Ind.  528;  .Xugusta  v.  Maysville  &c. 
R.  Co.,  97  Ky.  145,  30  S.  W.  1; 
Duncan  v.  Mayor,  8  Bush  (Ky.) 
98;  People  v.  Allen,  52  N.  Y.  538; 
People  v.  Batchellor,  53  N.  Y.  128, 
13  Am.  Rep.  480;  Raleigh  &c.  R. 
Co.  v.  Jenkins,  68  N.  Car.  502; 
Commonwealth  v.  Pittsburgh,  34 
Pa.  St.  496;  Louisville  &c.  R.  Co. 
v.  Davidson  Co.,  1  Sneed  (Tenn.) 
637,  62  Am.  Dec.  424.  Mandamus 
will  lie  to  compel  the  proper  offi- 
cers to  promulgate  the  result  of  an 
election  to  determine  whether  a 
ta.x  shall  be  levied  in  aid  of  a  rail- 
road. State  V.  Monroe,  46  La.  Ann. 
1276.  15  So.  625. 


4i)9 


PIBLIC  AID 


§  1065 


held,  however,  that,  unless  the  law  makes  it  the  duty  of  the 
municipality  or  its  proper  officers  to  make  the  subscription  or 
issue  bonds,^^  so  that  they  have  no  discretion  in  the  matter,  the 
mere  fact  that  an  election  has  resulted  in  favor  of  making-  such 
subscription  or  issuing  the  bonds  creates  no  contract  with  the 
company,  and  mandamus  will  not  lie.^  But  when  the  subscrip- 
tion has  once  been  legally  made,  mandamus  will  lie,  upon  tender 
of  the  stock,  to  compel  the  municipality  to  issue  bonds-  or  take 
steps  to  raise  the  money  to  pay  the  subscription  in  accordance 
with  the  statute.^  If,  however,  the  aid  is  unauthorized,'  or 
necessary  conditions  have  not  been  complied  with,^  the  writ  will 
be  refused.  But  mere  delay  on  the  part  of  the  railroad  company 
in  enforcing  its  rights,  where  no  one  is  injured  thereby,  has  been 
held  insufficient  to  prevent  it  from  afterwards  enforcing  them  by 
mandamus.^     It  has  been  held  that,  where  a  perpetual  injunction 


99  People  V.  Dutcher,  56  111.  144; 
People  V.  Logan  Co.,  63  111.  374: 
People  V.  Holden,  91  111.  446. 

1  Land  Grant  R.  &c.  Co.  v.  Da- 
vis Co.,  6  Kans.  256;  State  v.  Ros- 
coe,  25  Minn.  445;  People  v.  Fort 
Edward,  70  N.  Y.  28.  See  also 
Chicago  &c.  R.  Co.  v.  St.  Anne, 
101  111.  151;  Crawford  Co.  v.  Louis- 
ville &c.  R.  Co.,  39  Ind.  192;  Chi- 
cago &c.  R.  Co.  v.  Olmstead,  46 
Iowa  316;  Cumberland  &c.  R.  Co. 
v.  Barren  Co.,  10  Bush  (Ky.)  604; 
State  v.  Garoutte,  67  Mo.  445;  State 
v.  Board,  166  Ind.  162,  76  N.  E. 
986. 

~  Selma  &c.  R.  Co.,  Ex  parte,  45 
Ala.  696,  6  Am.  Rep.  722.  Atchi- 
son &c.  R.  Co.  v.  Jefferson  Co.,  12 
Kans.  127;  State  v.  Lake  Citj%  25 
Minn.  404;  State  v.  Jennings,  48 
Wis.  549. 

3  Clark  Co.  v.  Paris  &c.  Co.,  11 
B.  Mon.  (Ky.)  143;  Osage  Valley 
&c.  R.  Co.  v.  Morgan  Co.,  53  Mo. 
156;  Cincinnati  &c.  R.  Co.  v.  Clin- 
ton  Co.,   1    Ohio   St.   n.     See  also 


Fowler    v.    Oakdale,    158    Ky.    603, 
166  S.  W.  195. 

*  Norton  v.  Dyersburg,  127  U.  S. 
160,  8  Sup.  Ct.  1111,  32  L.  ed.  85; 
State  v.  Highland,  25  Minn.  355; 
State  V.  Minneapolis,  32  Minn.  501, 
21  N.  W.  722;  State  v.  Tappan,  29 
Wis.  664,  9  Am.  Rep.  622.  See 
also  Clay  County  v.  McAleer,  115 
U.  S.  616,  6  Sup.  Ct.  199,  29  L.  ed. 
482;  United  States  v.  Macon  Coun- 
ty, 99  U.  S.  582,  25  L.  ed.  331;  Su- 
pervisors V.  United  States,  18  Wall. 
(U.  S.)  71,  21  L.  ed.  771;  Browns- 
ville V.  Loague,  129  U.  S.  493,  9 
Sup.  Ct.  327,  Z2  L.  ed.  780;  People 
v.  Logan  Co.,  dZ  111.  374;  State  v. 
Rainey,  74  Mo.  229. 

5  People  v.  Waynesville,  88  111. 
469;  People  v.  Holden,  91  111.  446; 
People  V.  Glann,  70  HI.  232;  Essex 
Co.  R.  Co.  V.  Luneuburgh,  49  Vt. 
143.  See  Casady  v.  Lawry,  49  Iowa 
523. 

6  State  V.  Jennings,  48  Wis.  549, 
4  N.  W.  641.  See  also  r^Ierrill  v. 
Marshall  Co.,  74  Iowa  24,  36  N.  W. 


^  lUGli  HAILKOADS  500 

has  been  granted  prohibiting  the  officers  from  making  a  subscrip- 
tion, mandamus  will  not  afterwards  lie  at  the  suit  of  the  railroad 
company  to  compel  them  to  do  so,'  and  so,  on  the  other  hand,  it 
has  been  held  that,  if  a  mandamus  has  first  been  awarded,  in- 
junction will  not  lie  to  prevent  them  from  doing  what  they  have 
been  ordered  to  do  l^y  the  mandate  of  the  court.**  The  mere 
])endency  of  quo  warranto  proceedings  against  the  company  or 
the  individuals  composing  it  is  not,  however,  a  good  defense  to 
mandamus  proceedings  instituted  by  the  company  to  compel  the 
munici])ality  to  issue  its  bonds  in  a  proper  case."  Other  rem- 
edies may  doubtless  be  resorted  to  in  some  cases,  but  mandamus 
ii:  usually  the  most  desirable  remedy,  and  is  frequently  the  only 
remedy  of  the  railroad  company.^" 

§  1066   (874a).     Remedies   of   railroad   companies — Continued. 

]n  a  proceeding  to  enforce  a  tax  in  aid  of  a  railroad,  it  has  been 

held  sufficient  to  aver  as  a  fact  that  the  railroad  company  has 
been  permanently  Icjcated  in  the  townshi])  without  alleging  that 
this  fact  has  been  judicially  determined. i'  It  has  also  been  held 
that  a  proper  record  of  the  county  board  appropriating  money 
U>  aid  a  railroad  company,  and  showing  all  the  facts  necessary  to 
give  jurisdiction,  is  sufficient  evidence  of  the  appropriation  and 
the  corporate  existence  of  the  railroad  company  seeking  the 
relief,^-  and  can  not  be  collaterally  attacked. ^^  But  this  might 
not  be  true  in  all  jurisdictions  and  under  all  statutes.      It  is  clear, 

778;    .Mcrnll    v.    Welshcr,    50   Iowa  140  Jiul.  95.  38  N.   E.  170,  39  N.  E. 

f,l  500,  witli  which  compare,  however, 

•  Ohio    &c.    K.    Co.    v.    Commis-  State    v.    Board,    162    Ind.    580,    68 

sioners,  7  Ohio   St.  278.  •  See   also  N.   E.  295,  70  N.  E.  373,  984. 
I'leming,  Ex  parte,  4  Hill   (N.  Y.)  '■>  Oroville   Szc.    R.   Co.  v.    Plumas 

581:   State  v.   Board,   162    Ind.   580,  Co..  37   Cal.  354. 
68    N.    E.    295.    70    N.    E.   373,   984.  ^"  See  Smith  v.  Bourbon  County, 

But  compare   Knox  County  v.  As-  127  U.   S.   105,  8  Sup.   Ct.   1034,  32 

pinwall.   24    How.    (U.    S.)    376.    16  L.    ed.    73.   22    .\m.    &    Eng.    Corp. 

L.  ed.  735.  Cas.  74,  78. 

•^Cumberland      &c.      R.      Co.     v.  "  Caffyn  v.   State.  91    Ind.  324. 

Judge.  10  Bush  (Ky.)  564.     But  see  ^-^  Caffyn    v.    State,    91    Ind.    324. 

Brownsville   v.    Loague.    129   U.    S.  See    also    Nixon    v.    Campbell,    106 

493,  9  Sup.  Ct.  327,  32  L.  ed.  780;.  Ind.  47,  4  N.  E.  296,  7  N.  E.  258. 
McKinney  v.  Frankfort  &c.  R.  Co.,  ^■'  Board  v.  Montgomery,  106  Ind. 


;)U1  iM  iibic  All)  §  1066 

liowc'N cr.  tlial,  in  ;i  jx'tition  for  niandanuis  to  enforce  the  levy  of 
,-'  railroad  lax.  il  is  not  necessary  to  state  every  detail  of  the 
election  ;  and  in  a  recent  case  in  Louisiana  it  is  held  that  all  that 
is  necessary  is  to  give  the  requisite  particulars  serving  as  a  basis 
for  the  mandamus,  as  that,  on  a  certain  day,  the  authorities  ol 
the  defendant  town  held  an  election  to  take  the  sense  of  the 
taxpayers  of  the  town  touching  the  imposition  of  a  tax  of  so 
manx-  mills  for  so  many  years  in  aid  of  the  construction  of  the 
plaintiff  railroad,  and  that  the  result  of  the  election  was  dulv 
ascertained  and  proclaimed  by  the  authorities  of  the  town,  and 
was  faAorable  to  the  tax,  and  that  the  railroad  has  been  duly 
completed  according  to  agreement,  and  the  tax  earned.^*  The 
fact  that  a  township  is  not  made  a  defendant  in  a  suit  to  enjoin  a 
board  of  county  commissioners  and  county  officers  from  enforc- 
ing a  railroad  aid  tax  voted  by  the  township,  in  Indiana,  does  not 
render  the  injtmction  decree  void  as  to  those  who  were  made 
]>arties  and  duly  served  with  process,  and  mandamus  wdll  not  lie 
to  compel  the  board  to  order  the  collection  of  the  tax  where 
such  board  had  already  been  enjoined  from  so  doing  and  the 
personnel  of  the  board  has  since  changed. ^^ 

517.  6  N.  E.  915.  See  also  Jones  lire  railroad.  A  private  individual 
V.  Cnllen,  142  Tnd.  335,  40  N.  E.  may  be  the  beneficiary  of  such  a 
124.  tax  as  well  as  a  corporation,  where 
!•*  Arkansas  So.  R.  Co.  v.  Wilson,  lie  becomes  so  by  assignment;  and 
118  La.  395,  42  So.  976.  It  is  also  it  is  no  concern  of  the  town,  or  of 
Iield  in  this  case  that  "the  assign-  the  taxpayers,  whether  such  assign- 
ment by  the  railroad  company  to  ment  has  been  with  or  without 
private   individuals   of  the   right   to  consideration." 

the   avails    of   such   a   tax   will   not  i''  State    v.    Board,    162    Ind.    580, 

operate  an  abandonment  of  the  tax,  68  N.  E.  295,  70  N.  E.  373,  984.   See 

where  the  right  to  assign  the   tax  also   State  v.   Board,    166  Ind.   162, 

has  been  unconditionally  granted  to  76  N.  E.  986. 


CHAPTER  XXXV. 


.MUNICIPAL  AID  BOXDS 


Sec.  Sec. 

1070.  Power   to   issue  aid   bonds.  1087. 

1071.  Legislative    authority    requi- 

site. 1088. 

1072.  Constitutional       ciuestions  — 

Completed  road.  1089. 

1073.  Governmental        subdivisions       1090. 

may  be  authorized  to  issue 
bonds. 

1074.  Execution    of    the    power    to       1091. 

issue  aid  bonds  —  Gener- 
ally. .  1092. 

1075.  Execution    of   the    power    to       1093. 

issue   aid   bonds  —  Implied       1094. 
powers. 

1076.  Formal  execution  of  bonds.         1095. 

1077.  Execution    of    bonds — Deliv- 

ery. 1096. 

1078.  Nature      of      municipal      aid 

bonds.  1097. 

1079.  Proceedings  of  municipal  of- 

ficers must  conforni  to  the       1098. 
statute. 

1080.  Want  of  power— Definition.         1099. 

1081.  Conflict  of  authority. 

1082.  Consolidation  does   not  take       1100. 

away  right  to  bonds. 

1083.  Purchasers    of    aid    bonds —       1101. 

Duty  to  ascertain  that 
power  to  issue  bonds  ex- 
ists. 1102. 

1084.  Bonds    issued    in    excess    of 

the     limits     prescribed     by 

the  constitution.  1103. 

1085.  Limitation  of  amount — Con- 

struction  of   statute. 

1086.  Bonds  in  excess  of  the  limit       1104. 

prescribed  by  statute. 


I5onds  running  beyond  time 
prescribed. 

Bonds  payable  out  of  a  spe- 
cific fund. 

Performance  of  conditions. 

Right  of  railroad  company 
to  money  or  bonds  on 
stock   subscription. 

Ratification  of  bonds  irreg- 
ularly issued. 

Ratification  of  invalid  bonds. 

When  bonds  are  void. 

Form  of  bonds  —  To  whom 
payable. 

Form  of  bonds  —  Lack  of 
seal. 

Bona  fide  holders  of  aid 
bonds. 

Estoppel  by  recitals  in  bonds 
— General  doctrine. 

Estoppel  by  recitals  in  bonds 
— Illustrative  cases. 

Recitals  in  bonds  not  always 
conclusive. 

Official  certificates — Conclu- 
siveness of. 

Recitals  in  bonds  to  consti- 
tute an  estoppel  must  be 
of  facts. 

No  estoppel  where  the  offi- 
cer ordering  bonds  to  is- 
sue had  no  jurisdiction. 

Estoppel  otherwise  than  by 
recital  —  Illustrative  in- 
stances. 

Estoppel  by  retention  of 
stock. 


502 


503 


MUNICIPAL  AID  HONDS 


§1070 


Sec. 

1105.  Recitals   in   bonds^Effect   of 

against   bondholders. 

1 106.  Refunding — Substitution. 

1107.  Discretionary      powers      and 

peremptory  duty. 

1108.  Registration. 

1109.  Rights   of   bona    fide   holders 

not  affected  by  sale  of 
bonds  at  a  less  sum  than 
tliat  prescribed  by  statute. 

1110.  .Subrogation  of  holder  of  in- 

valid bonds. 

1111.  Liability    of    municipality    to 

purchaser  of  invalid  bonds. 

1112.  Right   of   municipality   to   re- 


cover money  paid  because 
of  wrongful  acts  of  the 
railroad  company. 

1113.  Defenses  to  aid  bonds. 

1114.  P.ondholders    not    bound    by 

proceedings  to  which  they 
are  not  parties. 

1115.  Following  state  decisions. 

1 1 16.  Jurisdiction  of  federal  courts. 

1117.  Compelling      the      issue      of 

bonds. 

1118.  Remedies  of  bondholders. 

1119.  Remedies    of   bondholders  — 

Compelling  levy  of  tax. 

1120.  Miscellaneous. 


§  1070  (875).  Power  to  issue  aid  bonds. — The  power  of  a 
municipality  to  aid  a  railroad  company,  as  we  have  elsewhere 
shown,  is  not  an  ordinary  or  implied  corporate  power,  but  exists 
only  in  cases  where  it  is  clearly  granted  by  statute.^  The  whole 
subject  of  granting  aid  is  a  statutory  one,  and  it  is  always 
necessary  to  look  to  the  statute  to  ascertain  the  nature  and  ex- 
tent of  the  power.-     The  rule  which  is,  as  we  believe,  supported 


lAnte,  §§  1011,   1015. 

-  See  United  States  v.  Clark 
County,  96  U.  S.  211,  24  L.  ed.  628; 
United  States  v.  Macon  County,  99 
U.  S.  582,  25  L.  ed.  331 ;  Columbus 
V.  Dennison,  69  Fed.  58:  Hutchin- 
son V.  Self,  153  111.  542.  39  N.  E. 
27;  State  v.  Macon  Co.,  41  Mo.  453; 
State  V.  Shortridge,  56  Mo.  126.  It 
has  been  held  that  general  author- 
ity to  subscribe  to  the  stock  of  a 
railroad  company  or  to  make  a  do- 
nation of  money  to  aid  in  the  con- 
struction of  its  road,  carries  with 
it  by  necessary  implication  the 
power  to  borrow  money  for  that 
purpose,  and  to  issue  bonds  and 
sell  them  as  a  means  to  that  end. 
Seybert   v.    Pittsburg,    1    Wall.    (U. 


S.)  272,  17  L.  ed.  553;  United 
States  V.  New  Orleans,  98  U.  S. 
381,  25  L.  ed.  225;  United  States  v. 
Macon  County,  99  U.  S.  582.  25  L. 
ed.  331;  Hancock  v.  Chicot  Co.,  32 
Ark.  575;  Thompson  v.  Peru,  29 
Ind.  305;  Nichol  v.  Nashville.  9 
Humph.  (Tenn.)  252.  Authority 
''to  obtain  money  on  loan  on  the 
faith  and  credit  of  the  city  for  the 
purpose  of  contributing  to  works 
of  internal  improvement,"  was  held 
to  confer  upon  the  city  the  power 
to  guarantee  payment  of  the  bonds 
of  a  railroad  company.  Savannah 
v.  Kelly,  108  U.  S.  184,  2  Sup.  Ct. 
468.  27  L.  ed.  696.  And  it  was  held 
that  an  act  which  authorized  a 
town  to  subscribe  for  shares  in  the 


^  1070 


RAILROADS 


504 


by  i)rinciple,  and  sanctioned  by  authority,  is  that  there  is  no 
power  to  issue  bonds  to  aid  a  railroad  company  unless  the  power 
is  clearly  conferred  by  statute/'  A  municipal  corporation  is  in 
no  sense  a  business  or  trading  corporation,  but  is  a  governmental 
instrumentality,  so  that  the  true  and  just  view  is,  that  it  has  no 
power  to  issue  bonds  to  aid  in  the  construction  of  a  railroad,  un- 
less the  power  is  expressly,  or  at  least  by  necessary  implication, 
conferred  by  statute.*  The  ])()wer  to  issue  negotial)le  bonds  is  a 
high  and  important  one,  and  there  is  strong  reason  for  holding 
that,  unless  expressly  conferred,  it  does  not  exist.  Some  of  the 
cases  take  a  different  view  of  the  general  question.  Imt.  in  our 
c<pinion,  they  are  not  well  decided.     Authority  to  issue  bonds  to 


capital  stock  of  a  railroad  com- 
pany, and  to  raise  by  loans  or 
taxes  the  money  required  to  paj- 
llie  installments  of  the  subscrip- 
tion, conferred  on  the  town  by  im- 
plication the  power  to  issue  bonds. 
Commonwealth  v.  Williamstown, 
156  Mass.  70,  30  N.  E.  472.  But  it 
has  also  been  held  that  power  to 
levy  a  tax,  and  make  a  donation  to 
a  railroad,  or  purchase  its  stock, 
confers  no  authority  to  issue  bonds 
in  anticipation  of  the  tax.  j\Iiddle- 
port  V.  Aetna  Life  Ins.  Co.,  82  111. 
562:  Lippincott  v.  Pana,  92  111.  24; 
Concord  v.  Robinson,  121  U.  S. 
165.  7  Sup.  Ct.  937,  30  L.  ed.  885: 
Wells  V.  Supervisors.  102  U.  S. 
625.  26  L.  cd.  122:  Kat.^enbergor 
V.  Aberdeen,  121  U.  S.  172.  7  §up. 
Ct.  947,  30  T'.  ed.  911:  Kelley  v. 
Milan,  127  U.  S.  139.  8  Sup.  Ct. 
1101,  Zl  L.  cd.  11  \  Leavenworth 
&c.  R.  Co.  V.  Commissioners  of 
Douglas  Co.,  18  Kans.  169;  Daviess 
Co.  V.  Howard,  13  Bush  (Ky.)  101; 
"Wellsborough  v.  New  York  &c.  R. 
Co..  76  N.  Y.  182;  Winston  v.  Ten- 
nessee &c.  R.  Co.,  1  Baxt.  (Tenn.) 
60. 


3  .\nte.  §   1026. 

*Ante,  §  1026.  The  rule  that  is 
best  sustained  by  authority  is  thus 
stated  by  the  supreme  court  of  the 
L'nited  States:  "It  is  well-settled 
that  a  municipal  corporation,  in 
order  to  exercise  the  power  of  be- 
coming a  stockholder  in  a  railroad 
corporation,  must  have  such  power 
expressly  conferred  upon  it  by  a 
grant  from  the  legislature;  and  that 
even  the  power  to  subscribe  for 
such  stock  does  not  carry  with  it 
the  power  to  issue  negotiable  bonds 
in  payment  for  the  subscription, 
unless  the  power  to  issue  such 
bonds  is  expressly  or  by  necessary 
implication  conferred  by  statute." 
Kelley  v.  Milan,  127  U.  S.  139,  8 
Sup.  Ct.  1101,  32  L.  cd.  n.  citing 
Pulaski  V.  Gilmore,  21  Fed.  870: 
Marsh  v.  Fulton  County,  10  Wall. 
(U.  S.)  676,  19  L.  ed.  1040:  Wells 
v.  Supervisors,  102  U.  S.  625,  26 
L.  ed.  122;  Ottawa  v.  Carey,  108 
U.  S.  110,  2  Sup.  Ct.  361,  27  L.  ed. 
669;  Daviess  County  v.  Dickinson, 
117  U.  S.  657,  6  Sup.  Ct.  897.  29 
L.  ed.  1026:  Tax  Payers  v.  Ten- 
nessee    Central     R.     Co.,     11     Lea 


505 


MUNICIPAL  AID  I5<)XDS 


§  1071 


i<k\  in  the  construction  of  ;i  railroad  may,  however,  give  power  to 
make  the  bonds  negotiable,  being  such  as  are  usually  issued  in 
such  cases.'' 

§  1071  (876).  Legislative  authority  requisite. — There  is  no 
])ower,  as  elsewhere  demonstrated,  to  issue  bonds  to  aid  a  rail- 
load  conipaii}'  except  where  it  is  conferred  by  express  statute.^ 
Thus,  a  mere  voluntary  vote  of  the  people  of  a  city  under  a  cit}' 
ordinance,  and  without  any  authority  from  the  legislature,  will 
not  confer  any  rights  upon  the  city  to  extend  aid  to  a  railroad.' 
Authority  to  issue  bonds  to  pay  debts  or  to  borrow  money  for 


(Tcim.)  329.  See  also  Swanson  v. 
Ottnmwa.  131  Iowa  540,  106  N.  W. 
9,  5  I..  R.  A.  (N.  S.)  860;  B»rovvn 
V.  Newburyport,  209  Mas.s.  259,  95 
N.  E.  504:  Weil  v.  Newbern,  126 
Tenn.  223,  148  S.  W.  680,  Ann.  Cas. 
1913N.  25,  and  other  authorities 
cited  in  note:  Elliott  Const.,  §  616. 
The  grant  of  power  to  a  mnnici- 
])ality  to  subscribe  for  stock  in  a 
railroad  does  not  imply  the  power 
to  issue  bonds  therefor.  Norton  v. 
l^yersburg,  127  U.  S.  160.  8  Sup. 
Ct.  nil.  32  L.  ed.  85:  Hill  v.  Mem- 
phis. 134  U.  S.  198,  10  Sup.  Ct.  562, 
^^  L.  ed.  887.  Under  a  Kansas 
statute  which  provides  that  no 
bonds  except  for  the  erection  and 
furnishing  of  school  houses  shall 
be  voted  for  and  issued  by  any 
county  or  township  within  one  year 
after  the  organization  of  such  new 
county,  a  newK-  organized  county 
can  not  legally  vote  for  and  issue 
bonds  in  aid  of  a  railroad  company 
W'ithin  one  year  after  the  county 
has  been  organized.  State  v.  Has- 
kell Co.,  40  Kans.  65,  9  Pac.  362. 

•''  Jefferson  v.  Jennings  B.  &c.  Co., 
35  Tex.  Civ.  .^pp.  74,  79  S.  W.  876. 
-And  it  is  held  in  this  case  that  they 
niav  be  issued  to  a  \'cuder  of  land 


to  be  used  as  a  railroad  depot. 

'••Ante,  §§  1013,  1026;  Young  v. 
Clarendon  Tp.,  132  U.  S.  340,  10 
Sup.  Ct.  107,  33  L.  ed.  356:  Kelley 
v.  Milan,  127  U.  S.  139,  8  Sup.  Ct. 
110,  32  L.  ed.  77;  Concord  v.  Rob- 
inson, 121  U.  S.  165,  7  Sup.  Ct.  937, 
30  L.  ed.  885;  Norton  v.  Dyers- 
burg.  127  U.  S.  160,  8  Sup.  Ct.  1111, 
32  L.  ed.  85:  Daviess  Count}-  v. 
Dickinson,  117  U.  S.  657,  6  Sup. 
Ct.  897,  29  L.  ed.  1026;  Hill  v. 
Memphis.  134  U.  S.  198,  10  Sup.  Ct. 
562,  33  L.  ed.  887;  Wells  v.  Super- 
visors. 102  U.  S.  625,  26  L.  ed.  122. 
See  Savannah  v.  Kelly,  108  U.  S. 
184,  2  Sup.  Ct.  468,  27  L.  ed.  696: 
Ottawa  V.  Carey,  108  U.  S.  110,  12 
Sup.  Ct.  861,  27  L.  ed.  669;  People 
V.  Coon,  25  Cal.  635;  Lafayette  v. 
Cox,  5  Ind.  38;  Jefifries  v.  Law- 
rence, 42  Iowa  498;  Clay  v.  Nich- 
olas County,  4  Bush  (Ky.^  154; 
Pennsylvania  R.  Co.  v.  Philadel- 
phia, 47  Pa.  St.  189;  Milan  v.  Ten- 
nessee &c.  R.  Co.,  11  Lea  (Tenn.) 
329:  Justices  v.  Knoxville  &c.  R. 
Co.,  6  Coldw.  (Tenn.)  598:  Fisk  v. 
Kenosha,  26  Wis.  23. 

"  Quincy  &c.  R.  Co.  v.  Morris, 
84  111.  410. 


S  1072 


U  AILUOADS 


506 


municipal  purposes  does  not  confer  power  to  issue  bonds  as  a 
donation  to  a  railroad.^  It  may  be  said  generally  that,  if  no 
power  to  issue  the  bonds  existed  at  the  time  they  were  issued, 
they  are  void  in  whatever  or  whosesoever  hands  they  may  be.® 
But  a  general  statute,  granting  authority  to  cities  to  issue  such 
bonds,  applies,  and  gives  autluM-it}'  to  cities  incorporated  there- 
after as  well  as  before. ^"^ 

§  1072   (877).     Constitutional     questions — Completed     road. — 

The  decisions  which  support  the  doctrine  that  a  municipal 
cor])oration  may  be  empowered  to  aid  in  the  construction  of  a 


8  Ryan  v.  Lyncli,  68  III.  160.  A 
city  was  duly  authorized,  by  a  pop- 
ular vote,  to  subscribe  $100,000  to 
the  stock  of  a  railroad  company, 
and  to  issue  its  bonds  to  an  equal 
amount  in  payment  therefor.  After- 
ward the  city  council  passed  a  res- 
olution binding  the  city  to  sell  to 
the  company  all  this  stock  for 
$5,000,  to  be  paid  by  a  return  of 
its  bonds  to  that  amount.  The 
bonds  were  issued,  and  by  direc- 
tion of  the  council  placed  in  escrow, 
to  be  delivered  to  the  company 
upon  the  performance  of  certain 
conditions,  the  depositary  being- 
authorized  and  directed,  upon  re- 
ceipt of  the  stock,  to  sell  the  same 
to  the  railroad  company  for  $5,000 
of  the  city  bonds.  There  was  noth- 
ing to  show  that  the  railroad  com- 
pany had  agreed  to  purchase  the 
stock,  hut,  after  the  stock  and 
bonds  were  duly  exchanged,  the 
stock  was  sold  in  the  manner  pro- 
posed. The  court  held  that  this 
transaction  did  not  convert  tlic 
"subscription,"  which  was  author- 
ized by  the  statute,  into  an  un- 
authorized donation  of  $95,000,  and. 
if  any  wrong  was  done  by  the 
council    in    thus    disposing    of    the 


stock,  it  did  not  vitiate  the  bonds 
in  the  hands  of  a  bona  fide  pur- 
chaser. Cairo  v.  Zane,  149  U.  S. 
122,  13  Sup.  Ct.  803,  11  L.  ed.  673. 
See  ante,  §  1028. 

^  Anthony  v.  Jasper  County,  101 
U.  S.  693,  25  L.  ed.  1005;  McClure 
V.  Oxford,  94  U.  S.  429,  24  L.  ed. 
129;  Elmwood  v.  Marcy,  92  U.  S. 
289,  23  L.  ed.  710;  Thomas  v.  Rich- 
mond, 12  Wall.  (U.  S.)  349,  20  L. 
ed.  453;  Marsh  v.  Fulton  Co.,  10 
Wall.  (U.  S.)  676,  19  L.  ed.  1040; 
Hancock  v.  Chicot  Co.,  Z2  Ark. 
575;  Williams  v.  Roberts,  88  111. 
11:  Lippincott  v.  Pana,  92  111.  24; 
Delaware  Co.  v.  McClintock,  51 
Ind.  325;  Williamson  v.  Keokuk, 
44  Iowa  88;  Missouri  River  &c.  R. 
Co.  V.  Miami  Co.,  12  Kans.  230; 
Woodrufif  V.  Okolona,  57  Miss.  806; 
Steines  v.  Franklin  Co.,  48  Mo. 
167,  8  Am.  Rep.  87;  Hamlin  v. 
IMeadville,  6  Nebr.  227;  Weismer  v. 
Douglas,  64  N.  Y.  91,  21  Am.  Rep. 
586;  State  v.  Union,  15  Ohio  St. 
437;  Hopple  v.  Hippie,  33  Ohio  St. 
116;  Rurhop  v.  Milwaukee,  21  Wis. 
257. 

1"  Schmitz  V.  Zeh,  91  Minn.  290, 
97  N.  W.  1049. 


)07 


MUNICIPAL  AID  BONDS 


§1073 


railroad  proceed  upon  the  theory  that  the  road  will  be  a  benefit 
to  the  local  community.  It  is  doubtful  Avhether  the  principle  can 
apply  where  the  road  has  been  completed  and  all  the  benefit  that 
can  accrue  has  been  secured."  But  a  railroad  is  not  regarded  as 
complete  unless  equipped  with  depots  and  side-tracks  and  hence 
a  municipality  authorized  to  aid  in  the  construction  of  a  railroad 
may  vote  bonds  to  aid  in  the  construction  of  these  accessories 
though  the  railroad  proper  is  built  and  in  operation. ^^  It  is,  at 
all  events,  quite  clear  that  bonds  cannot  be  issued  to  an  insolvent 
company  which  has  completed  its  road  in  order  to  enable  it  to 
pay  claims  of  creditors,  since  that  would  be  to  authorize  the  levy 
of  a  tax  for  a  private  purpose,  and  this  the  constitution  will  not 
permit. ^^ 

§  1073  (878).  Governmental  subdivisions  may  be  authorized 
to  issue  bonds. — The  power  of  the  legislature  over  the  subject  of 
taxation  is  very  broad  and  comprehensive,  and  it  may  organize 
taxing  districts.  Upon  the  same  principle  it  may,  where  there  is 
no  constitutional  interdiction,  provide  for  the  formation  of  dis- 
tricts for  the  purpose  of  aiding  railroad  companies.  Thus  it  has 
been  held  that  "magisterial  precincts"  may  be  authorized  to  sub- 
scribe to  the  stock  of  railroad  companies  and  to  issue  bonds  to 
pay  such  subscriptions.^* 


11  Baltimore  &c.  R.  Co.  v.  Spring, 
80  ^Id.  510,  31  Atl.  208,  27  L.  R.  A. 
12.  But  compare  Napa  Valley  R. 
Co.  V.  Napa  County,  30  Cal.  435. 
In  Water  &c.  Co.  v.  Hutchinson 
Interurban  R.  Co.,  74  Kans.  661,  87 
Pac.  883,  it  was  held  that  the  stat- 
ute should  be  strictly  construed  and 
that  it  did  not  authorize  aid  bonds 
for  a  company  whose  entire  line 
was  within  the  city. 

12  Rock  Creek  v.  Strong,  96  U.  S. 
271.  24  L.  ed.  815. 

13  Baltimore  &c.  R.  Co.  v.  Spring, 
80  Md.  510,  31  Atl.  208,  27  L.  R.  A. 
72.  The  decision  in  the  case  re- 
ferred to  asserts,  as  we  believe,  a 


just  conclusion,  but  we  are  inclined 
to  think  some  of  the  statements  of 
the  opinion  go  too  far.  It  seems 
to  us  that  the  court  trenches  some- 
what upon  the  rule  that  where  a 
question  is  a  legislative  one  the  de- 
cision of  the  legislature  is  conclu- 
sive. There  is  reason  for  affirming 
that  the  legislature  has  power  to 
decide  what  railroad  companies 
may  receive  aid,  and  if  the  power 
exists  it  is  not  subject  to  judicial 
surveillance   or  control. 

1*  Breckinridge  Co.  v.  AlcCrack- 
cn,  61  Fed.  191,  194,  citing  Lexing- 
ton V.  McQuillan,  9  Dana  (Ky.) 
513,  35  Am.  Dec.  159;  County  Judge 


c:  1074 


RAIl.RUADS 


508 


§  1074  (879).  Execution  of  the  power  to  issue  aid  bonds — 
Generally. —  In  our  oj^inion  ihc  true  rule  is  that  the  power  to  issue 
railroad  aid  bonds  must  l>e  as  strictly  pursued  as  any  part  of  the 
power  to  extend  aid  to  a  railroad  enterprise,^''  and  in  cases  where 
the  statute  has  not  ]>een  substantially  followed  in  making  the 
stibscription  or  in  issuing  l)onds,  such  bonds  will  be  invalid.^** 
AVe  do  not  mean  to  say  that  there  may  not  be  cases  where  the 
statutory  provisions  are  so  clearly  directory  that  a  failure  to 
comply  with  them  may  be  justly  regarded  as  unimportant,  nor 
do  we  mean  to  say  that  there  may  not  be  instances  where  a  devia- 
tion from  a  mandatory  provision  may  be  so  plainly  immaterial 
as  to  be  justly  held  not  to  affect  the  validity  of  the  bonds,  but  we 
do  mean  to  say  that  such  cases  and  instances  form  exceptions  to 


V.  Shelby  R.  Co.,  5  Bush  (Ky.)  225; 
Kreiger  v.  Shelby  R.  Co.,  84  Ky. 
66;  Carter  County  v.  Sinton,  120 
U.  S.  517,  7  Sup.  Ct.  650,  30  L.  ed. 
701;  Hancock  v.  Louisville  &c.  R. 
Co..  145  U.  S.  409,  12  Sup.  Ct.  969, 
36  L.  ed.  755.  See  also  Cunning- 
ham V.  Kee  Shan,  110  Ark.  99,  161 
S.  W.  170.  But  as  a  rule  it  is  only 
governmental  corporations  that  can 
be  authorized  to  grant  aid  to  rail- 
road companies.  Ante,  §  1034. 
Rut  see  Wilson  v.  Sanitary  Dist., 
133  Til.  443,  27  N.  E.  203:  Kennebec 
Water  Dist.  v.  Watervillc,  96 
Maine  234,  52  Atl.  774. 

1'  Cairo  &c.  R.  Co.  v.  Sparta.  77 
111.  505:  Kokomo  v.  State.  57  Iiul. 
152.  163;  Madison  v.  Smith,  83  Ind. 
502:  Wheatland  v.  Taylor,  29  Hun 
(N.  Y.)  70.  It  is  not  necessary 
that  the  commissioners  to  sell  the 
bonds  should  act  personally  in  sell- 
ing them  and  investing  the  pro- 
ceeds, but  they  may  do  so  through 
the  medium  of  a  broker.  Rrownell 
^.  Greenwich,  114  N.  Y.  518,  22  N. 
E.  24.  4  L.  R.  A.  685.  and  note. 
Where    the   act   authorizing  a   city 


to  issue  bonds  is  silent  as  to  the 
kind  of  currency  in  which  such  ne- 
gotiable bunds  shall  be  paid,  the 
city  has  power  to  make  them  pay- 
able "in  gold  coin  of  the  United 
States  of  the  present  standard 
weight  and  fineness."  Judson  v. 
Bessemer,  87  Ala.  240.  6  So.  267, 
4  L.  R.  A.  742.  See  also  Moore  v. 
Walla  Walla,  60  Fed.  961:  Parson 
v.  Comrs.,  97  Ky.  119.  30  S.  W.  17; 
Winston  v.  Ft.  Worth  (Tex.  Civ. 
App.),  47  S.  W.  740;  Packard  v. 
Kittitas  County,  15  Wash.  88,  55 
.^.m.  St.  875.  Rut  compare  Wood- 
ruff V.  State.  66  Miss.  298,  6  So. 
235;  Burnett  v.  Maloney,  97  Tenn. 
697,  37  S.  W.  689,  34  L.  R.  A.  541; 
D'Esterre  v.  New  York,  104  Fed. 
605  (failure  to  comply  with  mere 
directory  provision  as  to  form  does 
not  vitiate). 

i«  Williams  v.  Roberts,  88  111.11; 
People  V.  Santa  Anna,  67  111.  57; 
Sinnett  v.  Moles,  38  Iowa  25;  Peo- 
ple V.  Smith,  45  N.  Y.  772;  People 
v.  Hurlburt.  46  N.  Y.  110:  Horton 
V.  Thomi^son.   71   N.  Y.  513. 


509  MrXICIPAL,  AID  HOXDS  §  1075 

the  general  rule,  for,  as  we  believe,  the  general  rule  is  that  the 
provisions  of  such  statutes  are  mandatory  unless  the  context 
clearly  shows  the  contrary,  and  must  be  substantially  pursued. 
We  may  add,  to  prevent  misunderstanding,  that  we  are  here  con- 
sidering the  question  entirely  independent  of  the  doctrine  of 
estoppel. 

§1075  (880).  Execution  of  the  power  to  issue  aid  bonds — Im- 
plied powers. — It  is  very  seldom  that  the  enabling  act  goes  into 
detail,  for  in  almost  all  cases  power  to  issue  bonds  is  granted  in 
general  terms.  It  is  sometimes  provided  that  bonds  shall  run 
for  a  designated  length  of  time,  or  shall  be  o'f  a  particular  tenure, 
and,  Avhere  this  is  so,  and  there  is  no  effective  estoppel,  a  material 
departure  from  the  statute  may  be  cause  for  refusing"  to  enforce 
the  bonds.  But  as  a  general  rule,  the  power  is  a  general  one, 
and  matters  of  detail  are  left  to  the  municipality,  and,  where  this 
is  so,  there  are,  necessarily,  implied  powers  conferred  upon  the 
municipality.  Such  a  g'eneral  power  will,  as  a  rule,  authorize 
the  bonds  to  be  made  payable  at  any  place  within  or  without  the 
state. ^"    So,  too,  such  a  general  power  will  authorize  the  munici- 

i''  Meyer  v.  Muscatine,  1  Wall.  not  inA-alidate  the  bonds,  although 
(U.  S.)  384,  17  L.  ed.  564;  Evans-  the  provision  will  be  void.  Sher- 
ville  &c.  R.  Co.  v.  Evansville,  IS  lock  v.  Winnetka,  68  111.  530.  Nor 
Ind.  395,  412;  Maddox  v.  Graham,  will  it  affect  their  negotiable  char- 
2  Mete.  (Ky.)  56;  Skinker  v.  But-  acter.  Enfield  v.  Jordan,  119  U.S. 
ler  Co.,  112  Mo.  332,  20  S.  W.  613:  680.  7  Sup.  Ct.  358,  30  L.  ed.  523. 
Kunz  V.  School  Dist.,  11  S.  Dak.  Municipal  bonds  in  the  absence  of 
578,  79  N.  W.  844;  Austin  v.  Gulf  any  provisions  as  to  the  place  of 
&c.  R.  Co.,  45  Tex.  236.  It  is  held  payment,  are  payable  at  the  treas- 
in  Illinois,  under  the  provisions  of  ury  of  the  municipality.  Friend  v. 
an  act  which  authorizes  the  inter-  Pittsburgh,  131  Pa.  305.  18  Atl. 
est  on  such  bonds  to  be  made  pay-  1060,  6  L.  R.  A.  636,  17  Am.  St. 
able  at  anj^  place  which  the  count}'  811;  Skinker  v.  Butler  Co.,  112  Mo. 
court  may  direct,  that  the  principal  332.  20  S.  W.  613.  The  fact  that 
be  made  payable  only  at  the  office  the  act  authorized  the  bonds  to  be 
of  the  treasurer.  Prettyman  v.  issued,  bearing  interest  at  the  legal 
Tazewell  Co.,  19  111.  406,  71  Am.  rate  where  they  were  payable. 
Dec.  230;  Pekin  v.  Reynolds.  31  which  is  in  another  state,  where 
111.  529,  83  Am.  Dec.  244.  But  it  the  legal  rate  is  larger  than  in  Ten- 
is  held  that  a  provision  making  nessee,  did  not  render  them  void 
them  pa3-able  at  another  place  will  fi>r  usury.    Nelson  v.  Haj'wood  Co., 


1076 


RAILROADS 


r)io 


pality  to  (leterniine  the  form  and  tenure  of  the  bonds,  provided 
the  municipality  does  not.  in  executing-  the  l)()nds,  go  l^eyond  the 
general  power  conferred  upon  it.  And  where  this  power  exists 
and  is  exercised,  and  bonds  payable  at  a  particular  place  are 
issued  and  sold,  neither  the  legislature  nor  the  municipality  can 
change  the  place  of  payment  without  the  consent  of  the  holders 
of  the  bonds. ^* 

§  1076  (881.)  Formal  execution  of  bonds. — So  far  as  concerns 
the  mere  formal  parts  of  bonds,  the  courts  are  very  liberal  in  up- 
holding the  rights  of  bona  fide  holders,  and  will  not  allow  those 
rights  to  be  defeated  because  of  formal  defects.  Thus,  in  one 
case  the  municipality  was  enjoined  from  setting  up  the  defense 
that  the  corporate  seal  was  not  affixed  to  the  bonds. ^^  Bonds 
should  be  executed  by  the  proper  officers  of  the  municipality, 
however,  and,  if  there  is  no  estoppel,  bonds  executed  by  other 
representatives  are  not  enforceable.-"     It  is  held  that  where  the 


3  Pick.  (Tenn.)  781.  Where  the 
statute  fixes  the  rate  of  interest 
that  the  bonds  shall  "bear,  the  mu- 
nicipal officers  can  not  contract  to 
pay  a  greater  rate.  English  v. 
Smock,  34  Ind.  115,  7  Am.  Rep.  215. 
IS  Dillingham  v.  Hook,  32  Kans. 
185,  4  Pac.  166. 

19  Bernards  Tp.  v.  Stebbins,  109 
U.  S.  341,  3  Sup.  Ct.  252,  27  L.  ed. 
956.  See  also  D'Esterre  v.  New 
York,  104  Fed.  605;  Smythe  v.  New 
Providence,  158  Fed.  213;  Catron 
v.  Lafayette  County,  106  ]\Io.  659, 
17  S.  W.  577. 

20  Walnut  V.  Wade,  103  U.  S. 
683,  26  L.  ed.  526;  Coler  v.  Cle- 
burne, 131  U.  S.  162,  9  Sup.  Ct. 
720,  33  L.  ed.  146;  Edwards  v. 
Bates  County,  117  Fed.  526;  Doug- 
las V.  Niantic  &c.  Bank,  97  111.  228; 
People  V.  Smith,  45  N.  Y.  772;  Dan- 
ville V.   Montpelier   &c.   R.   Co.,  43 


Vt.  144.  See  First  National  Bank 
V.  Arlington,  16  Blatchf.  (U.  S.) 
57;  Wetumpka  v.  Winter,  29  Ala. 
651;  Potter  v.  Lamhart,  44  Fla.  647, 
33  So.  251;  Mercer  Co.  v.  Pitts- 
burgh &c.  R.  Co.,  27  Pa.  St.  389; 
Bank  of  Statesville  v.  Statesville, 
84  N.  Car.  169.  As  to  what  officers 
may  execute.  Kankakee  County  v. 
Aetna  Life  Ins.  Co.,  106  U.  S.  668, 
2  Sup.  Ct.  80,  27  L.  ed.  309.  As  to 
bona  fide  holders,  it  is  sufficient  if 
bonds  are  signed  by  officers  de 
facto.  Ralls  County  v.  Douglass, 
105  U.  S.  728,  26  L.  ed.  957.  See 
Middleton  v.  Mullica  Tp.,  112  U.  S. 
433.  5  Sup.  Ct.  198,  28  L.  ed.  785; 
Weyauwega  v.  Ayling,  99  U.  S. 
112,  25  L.  ed.  470;  Waite  v.  Santa 
Cruz,  89  Fed.  619;  Sauerhering  v. 
Iron  Ridge  &c.  R.  Co.,  25  Wis. 
447. 


511  MUNICIPAL  AID  BOXDS  §1077 

statute  specifically  provides  what  the  denomination  of  the  bonds 
shall  be  it  must  be  obeyed.-^ 

§  1077  (881a).  Execution  of  bonds — Delivery. — A  valid  deliv- 
ery of  a  bond  is  essential  to  its  existence.  Although  drawn  and 
signed,  so  long  as  it  is  undelivered,  it  is  a  nullity  ;  uot  only  does  it 
take  effect  only  l)y  delivery,  but  also  only  on  delivery.-'-  A  pre- 
mature delivery  may  be  enjoined,  and  this  is  a  proper  remedy 
where  the  bonds  are  not  to  be  delivered  until  the  railroad  is  com- 
pleted and  it  is  proposed  to  issue  and  sell  the  bonds  in  advance  of 
the  proper  time  for  delivery,  though  the  funds  realized  are  to  be 
held  by  the  municipality  until  the  conditions  are  complied  with 
by  the  railroad  company.-^  But,  in  a  case  where  a  town  had 
ample  authority  for  issuing  its  bonds  to  a  railroad  company,  and 
the  bonds  were  executed  in  proper  form  and  made  payable  to  the 
proper  company,  but  were  not  delivered  to  such  company  but  to 
an  officer  of  a  new  company,  and  there  was  nothing  pertaining  to 
them  or  that  could  have  been  ascertained  from  the  record  in- 
dicating this  misdelivery,  it  was  held  that  they  could  be  enforced 
in  the  hands  of  an  innocent  purchaser.-'* 

§  1078  (882).  Nature  of  municipal  aid  bonds. — It  is  competent 
for  the  legislature  to  provide  that  aid  bonds  shall  not  be  nego- 
tiable. This  it  may  do  by  directly  declaring  that  they  shall  not 
be  negotiable,  or  by  clearly  making  them  payable  out  of  specific- 
fund  and  no  other. -"^  Ordinarily,  municipal  bonds  issued  in  aid 
of  a  railroad  are  commercial  paper,  and  bona  fide  holders  for 

-1  Greene  Co.  v.  Daniel,  102  U.S.  X.  J.    L.  249;   Hoag  v.   Greenwich, 

187.    26    L.    ed.    99;    Livingston    v.  133  N.  Y.  152,  30  N.  E.  842. 

School  Dist.,  9  S.  Dak.  345,  69  N.  '"  Young  v.  Clarendon,  132  U.  S. 

W.  15:  Milan  V.  Tennessee  Cent.  R.  ^"^O-  ^^  Sup.  Ct.  107,  33  L.  ed.  356; 

/-       ,1   T         /T^         V    ,on      o  ^  Portsmouth    Sav.    Bank   v.   Ashley, 

Co.,  11  Lea  (Tenn.)  329.     So  as  to  ^,   ^^.  ,     ^^^    ^^  ^^    „,    ^,    ^^    ,  •" 

'         .  ,.  .  91  Mich.  670,  52  N.  W.  74.  30  Am. 

tm.e   of  payment.      Davis  v.   \  uba  g^    ^^       g^^^^^,^^  ^    ^^  3^  ^ 

Co.,   75    Cal.   452.    13    Pac.   874,    17  Va.  781,  8  S.  E.  552. 
Pac.  533:  Alpena   Co.  v.  Simmons,  23  Neale   v.    Co.    Court   of  Wood 

104  Mich.  305,  62  N.  W.  292.     See  Co.,  43  W.  Va.  90,  27  S.  E.  370. 
also  Rochester  v.  Quintard,  136  N.  24  Prajrie  v.  Lloyd,  97  111.  179. 

Y.  221,  32  N.  E.  760.     But  compare  23  Blackman  v.  Lehman,  63   Ala. 

Singer    Mfg.    Co.   v.    Elizabeth,   42  547,  35  Am.  Rep.  57. 


i;  1078 


KAILKOADS 


512 


Aalue  take  tlu-in  freed  from  all  equities  of  \\hich  they  do  not  have 
notice.-"  Being  commercial  paper,  they  are  not  within  the  rule 
of  lis  pendens.-"  But.  of  course,  where  there  is  actual  notice  to 
the  purchaser,  he  is  not  protected  as  a  bona  fide  holder  of  com- 
mercial paper.  It  has  been  held  that,  even  where  a  subscription 
to  the  ca])ital  stock  cannot  legally  be  made  until  after  the  railroad 
cor])oration  is  organized,  bonds  may  be  valid  in  the  hands  of  bona 
fide  holders,-*  and  it  is  also  held  that  the  fact  that  the  popular 
vote  authorizing  the  subscription  was  taken  before  the  organiza- 


26  Mercer  Co.  v.  Hacket,  1  Wall. 
(U.  S.)  83,  17  L.  ed.  548;  Cass 
County  V.  Gillett,  100  U.  S.  585,  25 
L.  ed.  585:  Cromwell  v.  Sac  Coun- 
ty, 94  U.  S.  351,  24  L.  ed.  195,  96 
U.  S.  51,  24  L.  cd.  681:  Tucker  v. 
New  Hampshire  Sav.  Bank,  58  N. 
H.  83.  42  Am.  Rep.  580;  State  v. 
Union,  8  Ohio  St.  394;  Board  v. 
Texas  &c.  R.  Co.,  46  Tex.  316; 
Arents  v.  Commonwealth,  18  Grat. 
(\'a.)  750.  See  general!}'  Lindsey 
V.  Rottaken,  32  Ark.  619;  Society 
&c.  V.  Xew  [.ondon,  29  Conn.  174; 
Aurora  v.  West,  22  Ind.  88,  85  Am. 
Dec.  413:  Clapp  v.  Cedar  Co.,  5 
Jowa  15,  68  Am.  Dec.  678,  and  note: 
Consolidated  Association  &c.  v. 
Avegno,  28  La.  Ann.  552;  Hanni- 
bal &c.  R.  Co.  v.  Marion  Co.,  36 
Mo.  294;  Barrett  v.  Schuyler  Co., 
44  Mo.  197:  Elizabeth  v.  Force,  29 
N.  J.  Eq.  587.  It  will  be  presumed, 
in  the  absence  of  proof,  that  mem- 
bers of  a  railroad  commission  not 
present  at  a  meeting  at  which 
bonds  were  ordered  to  be  issued 
had  notice  that  the  meeting  was  to 
be  held  in  accordance  with  the 
statute,  authorizing  a  majority  to 
act  at  any  meeting  of  Avhich  all  had 
notice.  Hill  v.  Peekskill  Sav.  Bank, 
46  Hun  (N.  Y.)  180.  Though  all 
the  bonds  were  dated  on  the  same 


day,  and  payable  twenty  years  from 
date,  while  the  amendatory  act 
provided  that  but  ten  per  cent,  of 
tlicm  should  mature  during  any 
one  year,  they  would  not  be  invalid 
as  to  plaintiff,  who  was  not  shown 
to  li.ive  knowledge  of  the  irregu- 
larity, or  that  any  other  bonds  were 
issued  besides  those  he  purchased. 
Hrownoll  v.  Greenwich,  114  N.  Y. 
518,  2Z  N.  E.  24,  4  L.  R.  A.  685, 
and  note.  The  fact  that  a  vote  of 
the  peo])le  of  a  town  for  the  issu- 
ing of  railroad  aid  bonds,  pursu- 
ant to  lawful  authority,  was  upon 
tlie  condition  that  the  road  build 
its  shops  in  the  town,  will  not  in- 
Aalidate  tlie  bonds,  the  purpose  for 
which  they  were  issued  not  being 
changed  bj'  such  condition.  Casey 
V.  People,  132  111.  546,  24  X.  E.  570. 

-'  Warren  County  v.  Marcy,  97 
U.  S.  96,  24  L.  ed.  977:  Cass  Coun- 
ty v.  Gillett,  100  U.  S.  585,  25  L.  ed. 
585:  Winston  v.  Westfeldt,  22  Ala. 
760,  58  Am.  Dec.  278:  Tucker  v. 
New  Hampshire  Sav.  Bank,  58  N. 
H.  83.  42  Am.  Rep.  580;  Leitch  v. 
Wells.  48  N.  Y.  586:  Stone  v.  El- 
liott, 11  Ohio  St.  252:  Kieffer  v. 
Ehler,  18  Pa.  St.  388:  Board  v. 
Texas  &c.   R.   Co..  46  Tex.  316. 

28  Rubev  V.  Shain.  54  Mo.  207. 


513 


MUNICIPAL  AID  BONDS 


1079 


tion  was  completed  \\\U  in»l  l)c  a  defense  to  an  action  by  an  in- 
nocent holder  npon  bonds  issued  after  its  completion. ^^ 

§  1079  (883).  Proceedings  of  municipal  officers  must  conform 
to  the  statute. — AMiere  there  is  no  estoppel  the  rule  is  that  the 
officers  of  the  munici])ality  must  in  all  material  respects  obey  the 
requirements  of  the  enabling  act.^°  Thus  the  provisions  of  the  act 
in  respect  to  elections,  petitions,  and  the  like,  must  be  complied 
with,  but  unimportant  deviations  from  the  act  Avill  not  invalidate 
the  bonds. ^^  But  it  is  to  be  kept  in  mind  that  where,  as  is  gen- 
erally true,  third  persons  have  purchased  the  bonds,  the  question 
as  to  whether  there  has  been  a  compliance  with  the  provisions 
of  the  statute  is  seldom  of  practical  importance,  since  the  doc- 
trine of  estoppel  often  cuts  of¥  inquiry. 

§  1080  (884).  Want  of  power — Definition. — Confusion  has 
arisen  from  a  failure  to  discriminate  between  a  want  of  power 
and  an  irregular  or  defective  exercise  of  power.  In  considering 
the  doctrine  of  ultra  vires  we  pointed  out  the  distinction  between 


-9  Daviess  County  v.  Huidekoper, 
98  U.  S.  98,  25  L.  ed.  112.  Where 
there  is  an  entire  absence  of  power 
to  issue  bonds  recitals  therein  will 
not  estop  the  municipality.  Han- 
cock v.  Chicot  Co.,  32  Ark.  575; 
Anthony  v.  Jasper  Co.,  4  Dill.  (U. 
S.)   136. 

30  Ante,  §   1046. 

31  Ante,  §§  1048,  1049.  As  to 
elections,  see  Claybrook  v.  Board, 
114  N.  Car.  453,  19  S.  E.  593;  Samp- 
son v.  People,  141  111.  17.  30  N.  E. 
781;  Hill  v.  Memphis,  134  U.  S. 
198,  10  Sup.  Ct.  562.  33  L.  ed.  887; 
Norton  v.  Brownville,  129  U.  S. 
479,  9  Sup.  Ct.  322.  32  L.  ed.  774. 
As  to  specifying  place  of  hearing 
petition,  .Andes  v.  El5%  158  U.  S. 
312.  15  Sup.  Ct.  954,  39  L.  ed.  996. 
Presumptions  as  to  notice  of  elec- 
tions,  Knox   County  v.   New   York 


Ninth  Nat.  Bank,  147  U.  S.  91,  13 
Sup.  Ct.  267,  37  L.  ed.  93;  citing 
United  States  Bank  v.  Dandridge, 
12  Wheat.  (U.  S.)  64,  70,  6  L.  ed. 
552.  See  generally  Dallas  County 
v.  AIcKenzie,  110  U.  S.  686,  4  Sup. 
Ct.  184,  28  L.  ed.  285;  Oregon  v. 
Jennings,  119  U.  S.  74,  7  Sup.  Ct. 
124,  30  L.  ed.  323;  Carroll  County 
V.  Smith.  Ill  U.  S.  556,  4  Sup.  Ct. 
539.  28  L.  ed.  517;  Gilson  v.  Day- 
ton, 123  U.  S.  59,  8  Sup.  Ct.  66,  31 
E.  ed.  74;  Grenada  County  v.  Brog- 
den,  112  U.  S.  261,  5  Sup.  Ct.  125, 
28  L.  ed.  704;  German  Ins.  Co.  v. 
Manning,  95  Fed.  597;  Bolles  v. 
Perry  Co.,  92  Fed,  479;  Mason  v. 
Shawneetown,  77  111.  533;  Jackson- 
ville &c.  R.  Co.  v.  Virden,  104  111. 
339;  Elyria  Gas  &c.  Co.  v.  Elyria, 
57  Ohio  St.  374,  49  N.  E.  335. 


^  1081  RAILROADS  'AA 

,'i  want  of  power  and  a  defective  or  irreg'ular  exercise  of  power 
conferred  by  statute.  It  is  difficult  to  precisely  define  the  mean- 
ing of  the  term  "want  of  power,"  as  used  in  relation  to  the  rights 
of  bona  fide  holders  of  municipal  bonds.  Judge  Dillon,  whose 
learning  and  ability  always  command  respect,  says  that  the  term 
means  "the  want  of  legislative  power,  under  any  circumstances 
or  conditions  to  do  the  particular  act  in  question."  ^-  This  defini- 
tion is,  perhaps,  as  good  as  can  be  framed,  ])ut  it  is,  we  venture  to 
say  with  great  deference,  somewhat  broader  than  the  decisions 
warrant.  It  is  unquestionably  true,  however,  that  there  are 
cases  holding  that  there  is  a  "want  of  power,"  although  there  is 
a  general  statute  conferring  authority.  The  definition  we  have 
quoted  will  not  always  apply,  nor  can  any  general  definition  be 
formulated  upon  which  it  will  be  safe  to  act  in  all  cases. 

§  1081  (885).  Conflict  of  authority. — Upon  the  question  as  to 
what  shall  be  deemed  "want  of  authority"  there  is  much  conflict 
of  opinion.  There  is,  it  is  evident,  a  failure  on  the  part  of  some 
of  the  courts  to  discriminate  between  an  entire  absence  of  power 
and  a  defective  exercise  of  a  power  conferred  by  statute.  The 
decisions  of  many  of  the  state  courts  are  not  in  harmony  with 
those  of  the  United  States  courts  above  cited,  for  the  reason  that 
a  failure  to  observe  the  precedent  conditions  imposed,  which  the 
latter  hold  to  be  a  defective  exercise  of  an  existing  power,  is,  in 
many  cases,  held  by  the  former  to  prevent  such  power  from  vest- 
ing in  the  municipality  or  its  officers.'''^  Some  oi  the  decisions 
referred  to  in  the  note  confuse  the  want  of  power  with  a  defective 
exercise  of  power,  and  the  courts  have  fallen  into  error. 

32  Dillon   Munic.    Corp.   (5th  ed.)  v.    People,    132    111.    574,    the   court. 

§  951.  in    an    opinion    holding   that   bonds 

•''3  Hancock  v.  Chicot  Co.,  32  Ark.  i.ssued  by  authority  of  an  election 
575;  Marshall  County  v.  Cook,  38  held  without  proper  notice  are  void 
111.  44,  87  Am.  Dec.  282;  Aurora  v.  even  in  the  hands  of  innocent  pur- 
West,  22  Ind.  88,  85  Am.  Dec.  413;  chasers,  says:  "Persons  purchasing 
St.  Louis  V.  Alexander,  23  Mo.  483;  such  bonds  are  bound  to  take  no- 
State  V.  Goshen  Tp.,  14  Ohio  St.  tice  nf  the  provisions  of  acts  of 
569;  Mercer  Co.  v.  Pittsburgh  &c.  the  legislature  authorizing  the  elec- 
R.  Co.,  27  Pa.  St.  389;  Veeder  v.  tion  and  the  subscription,  and  of 
Lima,    19    Wis.    280.      In    Williams  the    proceedings    on    record    in    the 


n.") 


MUNICIPAL  AID  BONDS 


§  1082 


§  1082  (886).  Consolidation  does  not  take  away  right  to 
bonds. — The  i^encral  rule  that  a  consoHch'ited  company  succeeds 
to  the  rii^hts  of  the  constituent  companies  requires  the  conckision 
tliat  aid  lx)nds  \ oted  to  one  of  the  constituent  com])anies  l)elon,<; 
to  the  consolidated  company.  It  is  necessary,  of  course,  for  the 
consolidated  company  to  possess  the  substantial  ri<^hts  of  the 
constituent  company  to  which  it  is  voted  to  the  extent,  at  least, 
that  it  may  build  and  operate  the  line  of  road  for  which  the  aid 
was  granted.  The  authorities  are  in  substantial  agreement  upon 
the  general  question,'**  but  there  are  cases  which  hold  that,  under 


county  court  in  relation  thereto, 
and  of  the  requirements  of  the  fun- 
damental law  upon  the  subject." 
See,  also,  as  to  being  bound  to  take 
notice  of  the  statutory  provisions. 
Ogden  V.  Daviess  County,  102  U. 
S.  634,  26  L.  ed.  263;  Barnett  v. 
Denison,  145  U.  S.  135,  12  Sup.  Ct. 
819,  36  L.  ed.  652;  Rathbone  v. 
Kiowa  Co.,  73  Fed.  395.  And  as  to 
municipal  records,  see  Crow  v.  Ox- 
ford Tp..  119  U.  S.  215,  7  Sup.  Ct. 
180.  30  L.  ed.  388. 

34  Nugent  v.  Supervisors,  19  Wall 
(U.  S.)  241,  22  L.  ed.  83;  Scotland 
County  v.   Thomas,  94   U.    S.   682, 

24  L.  ed.  219;  East  Lincoln  v.  Dav- 
enport, 94  U.  S.  801,  24  L.  ed.  322; 
Henry  County  v.  Nicolay,  95  U.  S. 
619,  24  L.  ed.  394;  Bates  County  v. 
Winters,  97  U.  S.  83,  24  L.  ed.  933; 
Wilson  V.  Salamanca.  99  U.  S.  499, 

25  L.  ed.  330;  Empire  v.  Darling- 
ton, 101  U.  S.  87,  25  L.  ed.  878; 
Mcnasha  v.   Hazard,   102  U.  S.  81, 

26  L.  ed.  85;  Tipton  County  v.  Lo- 
comotive Works,  103  U.  S.  523,  26 
L.  ed.  340;  Harter  v.  Kernochan, 
103  U.  S.  562,  26  L.  ed.  411;  New 
Buffalo  V.  Iron  &c.  Co..  105  U.  S. 
73.  26  L.  ed.  1024;  Livingston  Coun- 
ty V.  Portsmouth  First  Nat.  Bank, 
128  U.  S.  102,  9  Sup.  Ct.  18,  32  L. 


ed.  359;  Columbus  v.  Dennison,  69 
Fed.  58;  Mt.  Vernon  v.  Hovey,  52 
Ind.  563;  Scott  v.  Hansheer,  94  Ind. 
1;  Jussen  v.  Board,  95  Ind.  567; 
Atchison  &c.  R.  Co.  v.  Phillips  Co., 
25  Kans.  261;  State  v.  Greene  Co., 
54  :\Io.  540.  It  has  been  held  that 
a  companj'  which  purchases  the 
road  of  the  company  to  which  the 
aid  is  granted  can  not  secure 
bonds.  Board  of  Comrs.  v.  State, 
115  Ind.  64,  4  N.  E.  589,  17  N.  E. 
855.  See  Bishop  v.  Brainerd,  28 
Conn.  289;  Terre  Haute  &c.  R.  Co. 
V.  Earp,  21  111.  291;  Illinois  &c.  R. 
Co.  V.  Beers,  27  111.  185;  Sparrow 
V.  Evansville  &c.  R.  Co.,  7  Ind. 
369;  Cantillon  v.  Dubuque  &c.  R. 
Co..  78  Iowa  48,  35  N.  W.  620.  5 
L.  R.  A.  726.  and  note;  Manning  v. 
Mathews,  66  Iowa  675,  24  N.  W. 
271;  Barthel  v.  ^Nleader,  72  Iowa 
125.  33  N.  W.  446;  Chicago  &c.  Co. 
V.  Shea,  67  Iowa  728,  25  N.  W.  901; 
Southern  Kansas  R.  Co.  v.  Towner, 
41  Kans.  72.  21  Pac.  221;  Fry  v. 
Lexington.  2  Met.  (Ky.)  314;  South 
Bay  &c.  Co.  V.  Gray,  30  Maine  547; 
Agricultural  &c.  R.  Co.  v.  Win- 
chester. 13  -Mien  (Mass.)  29;  Paci- 
fic &c.  R.  Co.  V.  Renshaw,  18  Mo. 
210;  Schenectady  &c.  Co.  v.  Thatch- 
er. 11  N.  Y.  102;  Buffalo  &c.  Co.  v. 


U0S3 


HAILROADS 


516 


peculiar  statutes,  the  consolidated  company  is  not  entitled  to  the 
bonds.''"  There  are  other  cases  which  hold  that  a  consolidation 
\\hich  works  such  a  fundamental  change  as  to  release  stock- 
holders will  deprive  the  consolidated  company  of  a  right  to  the 
bonds. ^^ 

§  1083  (887).  Purchasers  of  aid  bonds — Duty  to  ascertain 
that  power  to  issue  bonds  exists. — As  we  shall  hereafter  show, 
the  doctrine  of  estoppel  exerts  an  important  influence  upon  the 
rights  of  holders  of  municipal  aid  bonds,  but  this  doctrine  will 
not  protect  such  holders  where  there  is  an  entire  want  of  power 
to  issue  the  bonds.  It  is  the  duty  of  persons  who  are  about  to 
become  purchasers  of  municipal  aid  l)onds  to  ascertain  whether 
the  municipality  had  power  to  issue  them."'     It  is  obvious  that, 


Dudley,  14  N.  Y.  336;  Nelson  v. 
Haywood  County,  87  Tenn.  781,  11 
S.  W.  885,  4  L.  R.  A.  648;  Noyes 
V.  Spaulding,  27  Vt.  420.  See  as  to 
power  to  aid  consolidated  com- 
pany. Board  v.  Travelers'  Ins.  Co., 
128  Fed.  817. 

■■55  Harshnian  v.  Bates  Co.,  92  U. 
S.  569,  23  L.  ed.  747;  Bates  County 
V.  Winters.  97  U.  S.  83,  24  L.  ed. 
933.  See  Marsh  v.  Fulton  County, 
10  Wall.  (U.  S.)  676,  19  L.  ed.  1040. 

3^  Lynch  v.  Eastern  &c.  R.  Co., 
57  Wis.  430.  15  N.  W.  734,  825.  It 
is  upon  this  principle  that  it  is  held 
that  where  a  company  sells  all  of 
its  property  the  right  to  aid  bonds 
is  lost.  Cantillon  v.  Dubuque  &c. 
R.  Co.,  78  Iowa  48.  35  N.  W.  620, 
5  L.  R.  A.  726,  and  note.  But 
where  there  is  nothing  more  than 
a  mere  change  of  name  the  right 
to  the  bonds  is  not  impaired.  So- 
ciety &c.  V.  New  London,  29  Conn. 
174.  See  also  Howard  County  v. 
Booneville  Central  Nat.  Bank,  108 
U.  S.  314,  27  L.  ed.  738;  Lewis  v. 
Clarendon,    5    Dill.    (U.    S.)    329; 


Chickaming  v.  Carpenter,  106  U. 
S.  663,  1  Sup.  Ct.  620,  27  L.  ed.  307; 
Muscatine  &c.  R.  Co.  v.  Horton,  38 
Iowa  33;  Chicago  &c.  R.  Co.  v.  Put- 
nam, 36  Kans.  121.  12  Pac.  593; 
Rochester  &c.  R.  Co.  v.  Cuyler.  7 
Lans.  (N.  Y.)  431;  Commonwealth 
V.  Pittsburgh.  41  Pa.  St.  278;  Tay- 
lor V.  Board,  S6  Va.  506,  10  S.  E. 
433. 

■■■"  Dixon  County  v.  Field,  111  U. 
S.  83,  4  Sup.  Ct.  315,  28  L.  ed.  360; 
Coloma  V.  Eaves,  92  U.  S.  484,  490, 
23  L.  ed.  581:  :\Iarsh  v.  Fulton 
County.  10  Wall.  (U.  S.)  676,  19 
L.  ed.  1040;  Toledo  Northern  Nat. 
Bank  v.  Porter  Township,  110  L". 
S.  608,  615.  4  Sup.  Ct.  524,  28  L.  ed. 
258:  Anthony  v.  Jasper  County,  101 
U.  S.  693,  697,  25  L.  cd.  1005:  Mc- 
Clure  V.  Oxford,  94  U.  S.  429,  24 
L.  ed.  129.  See  also  Board  v. 
Blodgett.  155  111.  441,  40  N.  E.  1025, 
46  Am.  St.  348;  Schmidt  v.  De- 
riance.  117  Fed.  702.  afTd.  in  123 
Fed.  1 ;  St.  Lawrence  Tp.  v.  Fur- 
man,  171  Fed.  400;  1  Elliott  Cont. 
§§  615-617.  620. 


51/  MLNICIPAL  AID  BONDS  §1084 

as  the  question  of  power  or  no  power  depends  upon  the  decision 
of  the  question  whether  there  was  a  valid  statute  authorizing  the 
issue  of  the  bonds,  the  purchaser  must,  at  his  peril,  ascertain 
whether  there  is  or  is  not  such  a  statute. 

§  1084  (888).  Bonds  issued  in  excess  of  the  limits  prescribed 
by  the  constitution. — Some  of  the  authorities  make  a  distinction 
between  cases  where  bonds  to  an  amount  beyond  that  limited  by 
the  constitution  are  issued  and  cases  where  the  limit  prescribed 
l)y  statute  is  exceeded.  The  rule  in  relation  to  bonds  issued 
beyond  the  constitutional  limit  is  that  they  are  void  even  in  the 
hands  of  a  bona  fide  holder.  The  rule  has  been  carried  further, 
and  it  is  denied  that  there  can  be  an  estoppel  in  cases  where  the 
limit  prescribed  by  the  constitution  is  exceeded.^*  We  believe 
the  rule  to  rest  on  solid  principle,  but  it  is  somewhat  difficult  to 
perceive  why  the  same  rule  should  not  apply  where  the  bonds 
exceed  the  limits  prescribed  by  statute.  Where  aid  bonds  are 
issued  in  violation  of  the  constitution,  there  can  be  no  recovery 
against  the  municipality  upon  an  implied  contract. ^°  The  ad- 
vantages derived  from  the  construction  of  the  railroad  do  not 
constitute  an  equitable  consideration  as  will  entitle  the  bond- 
holders to  relief. 

§  1085  (889).  Limitation  of  amount — Construction  of  statute. 
— AVhere  the  constitution  limits  the  amount  of  aid  which  may  be 
granted,  it  is,  of  course,  controlling,  and  bonds  issued  in  excess  of 

3s  Hedges   v.   Dixon   County.    150  398.  43  L.  ed.  684;  Holliday  v.  Hil- 

U.  S.  182,  14  Sup.  Ct.  71,  ?^1  L.  ed.  derbrandt,  97  Iowa   177,  66  N.  W. 

1044.  9  Am.  R.  &  Corp.   Rep.  520;  89.      But   compare    Sioux   City   &c. 

Buchanan   v.    Litchfield,    102   U.    S.  R.  Co.  v.  Osceola  Co.,  45  Iowa  168. 

278,  26  L.  ed.  138;  Hedges  v.  Dixon  ^9  Hedges  v.   Dixon   County,    ISO 

Co.,  Zl  Fed.  304;  Risley  v.  Howell.  U.  S.  182,  14  Sup.  Ct.  71,  Zl  L.  ed. 

57  Fed.  544;  Quaker  City  Nat.  Bank  1044.   citing   Magniac   v.   Thomson, 

V.  Nolan  Co.,  59  Fed.  660;  Millsaps  15  How.  (U.  S.)  281,  14  L.  ed.  696; 

V.  Terrell,  60  Fed.   193.     See  State  Aetna   Life  Insurance  Co.  v.   Mid- 

v.  Columbia,  111  Mo.  365,  20  S.  W.  dleport,   124  U.  S.   534,  8  Sup.   Ct. 

90.     See  also  Gunnison   County  v.  625,  31  L.  ed.  537;  Litchfield  v.  Bal- 

Rollins,  173  U.  S.  255,   19  Sup  Ct.  lou,   114  U.  S.  190,  5  Sup.  Ct.  820, 

395.  43  L.  ed.  689;  Lake  County  v.  29  L.  ed.   132. 
Dudley,   173  U.  S.  243,  19  Sup.  Ct. 


§1086 


RAILROADS 


518 


the  amount  fixed  l)y  the  constitution  cannot  l)e  enforced.  The 
legislative  power  is  limited  by  such  a  constitutional  provision, 
and,  as  everyone  knows,  if  the  legislature  assumes  to  transgress 
the  provisions  of  the  constitution  its  enactments  are  void  :^"  but 
where  a  statute  can  be  so  construed  as  to  prevent  its  being 
brought  into  conflict  with  the  constitution,  the  courts  will  so  con- 
strue it.  provided  the  construction  be  at  all  reasonable.'*^  This 
general  doctrine  supports  the  ruling  in  the  case  wherein  it  w^as 
held  that  where  the  constitution  limited  the  amount  of  aid  to  a 
designated  per  cent,  of  the  taxable  property  a  statute  providing 
that  aid  "to  any  amount"  might  be  granted  was  not  invalid,  inso- 
much as  the  courts  must  construe  the  statute  to  mean  anv 
amount  within  the  constitutional  limitation. ■*'- 

§  1086  (890).  Bonds  in  excess  of  the  limit  prescribed  by 
statute. — As  we  have  said,  a  distinction  is  made,  at  least  in  some 
of  the  decisions,  between  bonds  issued  in  excess  of  the  constitu- 
tional limit  and  bonds  issued  beyond  the  limit  prescribed  by 
statute,  and  it  is  held  in  the  one  case  that  there  can  be  no 
estoppel,  but  that  there  may  be  in  the  other.  Yet,  where  bonds 
are  issued  in  excess  of  the  amount  limited  1)y  statute,  and  there 
is  no  estoppel,  the  bonds  are  void,  although  purchased   before 


•*o  See  East  Moline  v.  Pope,  224 
III.  386,  79  N.  E.  587. 

41  Ferguson  v.  Stamford,  60 
Conn.  432;  Jamieson  v.  Indiana  &c. 
Co..  128  Ind.  555,  569,  28  N.  E.  76, 
12  L.  R.  A.  652;  Dow  v.  Norris,  4 
X.  H.  16,  18,  17  Am.  Dec.  400. 

•*-  .-\tlantic  &c.  Co.  v.  Darlington, 
63  Fed.  76,  82.  In  the  course  of 
the  opinion  it  was  said:  "Is  it  in 
conflict  with  section  17,  article  9, 
because  no  limit  is  fixed  as  to  the 
amount  of  aid  to  be  given  to  rail- 
roads? The  constitution  and  the 
act  must  be  read  in  pari  materia. 
The  legislature  must  be  presumed 
to  have  enacted  the  act  in  view  of 
the   constitution.      It  cannot  i)e  as- 


sumed that  the  legislature  went  in 
the  teeth  of  the  constitution.  Such 
a  construction  must  be  put  on  this 
act  as  will  reconcile  it  with  the 
constitution.  'Ut  res  magis  valeat 
(luam  pereat.'  We  must  hold  it  to 
mean,  'may  issue  bonds  in  any 
amount  within  the  constitutional 
limitation.'  As  a  conclusion  of  law, 
the  act  is  not  in  conflict  with  sec- 
tion 17,  article  9.  in  this  respect." 
The  judgment  in  the  case  from 
which  we  have  ciuotcd  was  affirmed 
in  Darlington  v.  Atlantic  &c.  Co., 
68  I'^d.  849.  where  the  cases  of 
State  v.  Ncely.  30  S.  Car.  587,  9 
S.  E.  664.  3  L.  R.  A.  672;  Floyd  v. 
Pcrrin.  30   S.   Car.   1.  8   S.    E.   14,  2 


519 


MrMCII'AL  AID  BONDS 


§1086 


nKilurily  and  for  a  valuable  consideration.'"-  The  prevailing  rule 
is  that  all  of  the  bonds  are  void  where  there  is  no  estoppel  and 
they  are  beyond  the  limit  fixed  by  law."  It  is  held,  however, 
that,  if  the  municipality  authorizes  an  issue  of  the  proper  amount, 
but  the  officers  wrongfully  issue  a  greater  amount  than  that 
authorized,  the  bf)nds  are  not  all  void.*-"' 


L.  R.  A.  242,  and  State  v.  White- 
sides,  30  S.  Car.  579,  9  S.  E.  661, 
3  L.  R.  A.  Ill,  and  note,  are  re- 
viewed. It  is  held  in  the  case  first 
cited  that  bonds  may  be  exchanged 
for  stock  notwitlistanding  a  provi- 
sion that  thoy  sliail  not  be  issued 
for  less  than  par,  also  in  Germania 
Sav.  Bank  v.  Darlington,  50  S.  Car. 
Zn,  21  S.  E.  846.  But,  in  New 
York  such  a  provision  has  been 
held  to  require  their  sale  for  par 
in  cash.  People  v.  Batchelor,  53 
N.  V.  128,  13  Am.  Rep.  480;  Horton 
V.  Thompson,  71  N.  Y.  513.  As  to 
how  the  valuation  of  taxables  is  to 
be  determined  and  at  what  time, 
see  Colburn  v.  McDonald,  12  Nebr. 
431,  100  N.  W.  961;  Rathbun  v. 
Board.  83  Fed.  125:  Kent  v.  Dana, 
100  Fed.  56;  Municipal  Trust  Co. 
V.  Johnson  City,  116  Fed.  468;  Coe 
V.  Caledonian  &c.  R.  Co.,  27  Minn. 
197,  6  N.  W.  621;  Falconer  v.  Buf- 
falo &c.  R.  Co.,  69  N.  Y.  495; 
Bound  V.  Wisconsin  Cent.  R.  Co., 
45  Wis.  543;  1  Elliott  Cont.  §  622, 
et   seq. 

*^  Merchants"  Bank  v.  Bergen 
County,  115  U.  S.  384,  6  Sup.  Ct. 
88,  29  L.  ed.  430;  Buchanan  v. 
Litchfield,  102  U.  S.  278.  26  L.  ed. 
138;  Dixon  County  v.  Field.  Ill 
U.  S.  83,  4  Sup.  Ct.  315,  28  L.  ed. 
360;  Lake  County  v.  Graham,  130 
U.  S.  674,  9  Sup.  Ct.  654.  2,2  L.  ed. 
1065;  Cumins  v.  Lawrence  Co.,  1 
S.   Dak.  158,  46  N.  W.   182;   Gould 


V.  Paris,  68  Tex.  511,  17  Am.  & 
Eng.  Corp.  Cas.  340.  See  also  1 
Elliott  Cont.  §  620. 

4*  Hedges  v.  Dixon  Co.,  Zl  Fed. 
304;  Reineman  v.  Covington  &c.  R. 
Co.,  7  Nebr.  310.  See  Hedges  v. 
Dixon  County,  150  U.  S.  182,  14 
Sup.  Ct.  71,  Zl  L.  ed.  1044,  9  Am. 
R.  &  Corp.  Rep.  520;  McPherson 
V.  Foster,  43  Iowa  48,  22  Am.  Rep. 
215;    lola    v.    Merriman,    46    Kans. 

49,  26  Pac.  485;  Reynolds  &c.  Co. 
V.  Police  Jury,  44  La.  Ann.  863,  11 

50.  236;  Millerstown  v.  Frederick. 
114  Pa.  St.  435;  Perrin  v.  New  Lon- 
don, 67  Wis.  416. 

*3  In  Hedges  v.  Dixon  Co.,  Zl 
Fed.  304,  it  was  said:  "Counsel 
cites  the  case  of  Daviess  County 
\.  Dickinson,  117  U.  S.  657,  6  Sup. 
Ct.  897,  29  L.  ed.  1026.  in  which  the 
county  having  authority  to  issue 
bonds  to  the  amount  of  $250,000, 
the  county  officers  issued  $320,000, 
and  the  county  was  held  liable  for 
the  $250,000,  but  the  cases  were  not 
all  parallel.  In  that  the  principal 
had  proposed  a  valid  contract.  It 
had  done  that  which  it  had  a  right 
to  do,  and  the  wrong  or  miscon- 
duct of  its  agents,  the  county  offi- 
cers, was  held  not  to  invalidate 
that  which  the  county  had  law- 
fully authorized.  In  this  there  is 
no  breach  of  duty  charged  upon 
the  county  officers.  The  agents 
have  not  departed  from  their  in- 
structions.    The  trouble  lies  in  the 


§  1087 


RAILROADS 


520 


§  1087  (891).  Bonds  running  beyond  time  prescribed. — The 
highest  trilninal  of  the  nation  has  held  that,  where  the  enabling 
act  provides  that  Ijonds  shall  be  payable  in  a  designated  number 
of  years,  the  municipality  has  no  power  to  issue  bonds  payable 
after  a  longer  period,  and  that  the  bonds  are  void.^*^  The  reason- 
ing of  the  court  is  that  the  limitation  is  a  restriction  upon  the 
power  of  the  municipality,  and  so  operates  to  invalidate  the 
bonds.  A\'e  believe  this  doctrine  to  be  sound,  but  it  is  difficult 
to  harmonize  it  with  some  of  the  rules  declared  in  other  cases. 


action  of  tlie  principal  itself.  Its' 
act  was  unauthorized,  and,  hein<? 
without  warrant  of  law,  or  rather 
in  defiance  of  law,  created  no  valid 
obligation."  In  the  case  of  Hedges 
V.  Dixon  County,  150  U.  S.  182.  14 
Sup.  Ct.  71,  2>7  L.  ed.  1044,  affirm- 
ing judgment  below,  the  cases  of 
Louisiana  v.  Wood,  102  U.  S.  294, 
26  L.  ed.  15.3;  Read  v.  Plattsmouth. 
107  U.  S.  568,  2  Sup.  Ct.  208.  27 
L.  ed.  414;  Daviess  Count}'  v.  Dick- 
inson, 117  U.  S.  657,  6  Sup.  Ct.  897. 
29  L.  ed.  1026,  were  distinguished, 
and  the  court  said:  "Recitals  in 
bonds  issued  under  legislative  au- 
thority may  estop  the  municipality 
from  disputing  their  authority,  as 
against  a  bona  fide  holder  for 
value,  but  when  the  municipal 
bonds  are  issued  in  violation  of  a 
constitutional  provision  no  such 
estoppel  can  arise  by  reason  of  any 
recitals  contained  in  the  bonds." 
Lake  County  v.  Rollins.  130  U.  S. 
662,  9  Sup.  Ct.  651,  32  L.  ed.  1060; 
Lake  County  v.  Graham,  130  U.  S. 
674,  9  Sup.  Ct.  654,  32  L.  ed.  1065; 
SutlifT  V.  Lake  County.  147  U.  S. 
230,  13  Sup.  Ct.  318.  :^7  L.  ed.  145. 
To  the  efifect  that  where  there  is 
authority  but  an  excessive  issue 
the  bonds  are  valid  in  the  hands 
of  bona   fide   holders  to   the   extent 


that  they  are  not  in  e.xcess  of  the 
authorized  issue,  see  Daviess  Coun- 
ty V.  Dickinson,  117  U.  S.  657,  6 
Sup.  Ct.  897,  29  L.  ed.  1026;  Co- 
lumbus V.  Woonsocket  Inst.,  114 
Fed.  162;  Aetna  Life  Ins.  Co.  v. 
Lyon  Co.,  95  Fed.  325;  Culbertson 
V.  Fulton,  127  111.  30,  18  N.  E.  781; 
^IcPherson  v.  Foster,  43  Iowa  48, 
22  \m.  Rep.  215;  Nolan  Co.  v. 
State.  83  Tex.  182,  17  S.  W.  823; 
Schmitz  v.  Zeh,  91  Minn.  290,  97 
N.  W.  1049,  and  additional  authori- 
ties there  cited.  .See  also  Winamac 
V.  Hess.  151  Ind.  229,  238,  239,  50 
N.  E.  81. 

•»«  Barnum  v.  Okolona.  148  U.  S. 
393,  13  Sup.  Ct.  638,  Z7  L.  ed.  495. 
In  the  case  cited  it  was  said:  "That 
municipal  corporations  have  no 
power  to  issue  bonds  in  aid  of  a 
railroad  except  by  legislative  per- 
mission; that  the  legislature,  in 
granting  permission  to  a  munici- 
pality to  issue  its  bonds  in  aid  of 
a  railroad,  may  impose  such  con- 
ditions as  it  ma}-^  choose;  and  that 
such  legislative  permission  does  not 
carry  with  it  authority  to  execute 
negotiable  bonds  except  subject  to 
the  restrictions  and  conditions  of 
the  enabling  act — are  propositions 
so  well  settled  by  frequent  deci- 
sions   of    this    court    that    wo    need 


521 


MlMCIl'AL  AID  BONDS 


§1088 


§  1088   (892).     Bonds  payable  out  of  a  specific  fund.— Where 

a  specific  fund  is  pnnidcd  by  statute  lor  the  payment  of  the 
l)onds,  and  the  bonds  on  their  face  convey  notice  of  the  purpose 
lor  which  they  were  issued  and  of  the  statute  under  which  they 
are  issued,  purchasers  are  bound  to  take  notice  of  the  provisions 
of  the  statute,  and  cannot  treat  the  bonds  as  the  general  obliga- 
tions of  the  municipality.  Hut  it  is  not  of  itself  sufficient  to 
take  from  the  bonds  the  character  of  general  obligations  of  the 
municipal  corporation  that  they  show  on  their  face  that  they 
were  issued  for  a  special  purpose.*^  If,  however,  the  purpose  for 
which  the  bonds  are  issued  appears  on  their  face,  and  the  statute 
under  which  they  are  issued  is  referred  to,  and  that  statute  ex- 
pressly provides  that  they  shall  be  payable  out  of  a  special  fund, 
and  limits  the  power  to  tax  to  particular  persons  or  propertv, 
they  cannot  be  enforced  as  general  obligations  of  the  muni- 
cipality.^® 


not  pause  to  consider  them.  She- 
boygan Co.  V.  Parker,  3  Wall.  (U. 
S.)  93,  96,  18  L.  ed.  33:  Wells  v. 
Supervisors,  102  U.  S.  625,  26  L.  ed. 
122;  Claiborne  County  v.  Brooks, 
111  U.  S.  400,  4  Sup.  Ct.  489,  28 
L.  ed.  470;  Young  v.  Clarendon 
Tp..  132  U.  S.  340,  10  Sup.  Ct.  107, 
33  L.  ed.  356.  Accordingly,  if  in 
tlie  present  instance,  the  legislature 
of  Mississippi,  in  authorizing  the 
town  of  Okolona  to  subscribe  for 
stock  in  a  railroad  company  and  to 
pay  for  the  same  bj'  an  issue  of 
bonds,  prescribed  that  such  bonds 
should  not  extend  bej-ond  ten 
years  from  tlie  date  of  issuance, 
such  limitation  must  be  regarded 
as  in  the  nature  of  a  restriction  on 
the  power  to  issue  bonds.  Norton 
V.  Dyersburg,  127  U.  S.  160.  8  Sup. 
Ct.  nil,  32  L.  ed.  85:  Brenham  v. 
German-American  Bank.  144  U.  S. 
173.  12  Sup.  Ct.  559,  36  L.  ed.  390." 
^"  Olcott  V.  Supervisors.  16  Wall. 
(U.  S.)  678,  21  L.  ed.  382:  United 


States  v.  Clark  County,  95  U.  S. 
760,  24  L.  ed.  545,  96  U.  S.  211,  24 
L.  ed.  628;  Supervisors  v.  United 
States,  18  Wall.  (U.  S.)  71,  21  L. 
ed.  771;  Macon  County  v.  Huide- 
koper,  99  U.  S.  592,  25  L.  ed.  333, 
note;  Knox  County  Ct.  v.  Harsh- 
man,  109  U.  S.  229,  3  Sup.  Ct.  131, 
27  L.  ed.  914. 

4S  United  States  v.  ]\Iacon  Coun- 
ty, 99  U.  S.  582,  25  L.  ed.  331.  But 
see  Kimball  v.  Board,  21  Fed.  145; 
United  States  v.  Macon  Co.,  35 
Fed.  483:  Braun  v.  Board,  66  Fed. 
476,  70  Fed.  369;  Strieb  v.  Cox.  Ill 
Ind.  299,  12  X.  E.  481;  Quill  v. 
Indianapolis.  124  Ind.  292,  23  N.  E. 
788,  7  L.  R.  A.  681;  Swanson  v. 
Ottumwa.  118  Iowa  161,  91  N.  W. 
1048,  59  L.  R.  A.  620:  Adams  v. 
Ashland,  26  Ky.  L.  184,  80  S.  W. 
1105:  State  v.  Macon  Co.,  68  Mo. 
29;  State  v.  Fayette  Co.,  37  Ohio 
St.  526;  Austin  v.  Seattle,  2  Wash. 
St.  667,  27  Pac.  557;  Fowler  v.  Su- 
perior, 85  Wis.  411,  54  N.  W.  800. 


§  1089 


RAILHOADS 


522 


§  1089  (893).  Performance  of  conditions. — W'c  h;ivc  else- 
where shown  lliat  the  conditions  iinj)ose(l  hy  the  enahhn<^-  net 
must  l)e  suhstantially  performed.^''  It  is  evident  that,  as  the 
authority  of  the  municipality  depends  upon  the  enahling-  act.  the 
reciuirements  of  the  act  must  be  obeyed.  The  authority  is  not, 
as  we  have  repeatedly  said,  general,  but  is  an  express  statutory 
authorilw  It  is  generally  held  that,  if  the  preliminary  conditions 
necessary  to  give  jurisdiction  to  issue  the  bonds  have  not  been 
fully  performed,  their  issue  may  be  enjoined  at  the  suit  of  a 
taxpaver,'"'  ])rovi(led  there  are  no  facts  creating  an  estoppel.  So. 
it  is  held  that  payment  of  such  bonds  may  be  enjoined  after  their 
issue  at  the  suit  of  one  or  more  of  the  taxpayers,  if  the  suit  is 
brought  while  the  bonds  remain  in  the  hands  of  the  railroad 
company  to  which  they  were  originally  issued.'^'  But  even  as  to 
the  railroad  company  the  doctrine  of  estoppel  may  often  be  avail- 
.•d)le.  Yet  the  enforcement  of  the  bonds  may  sometimes  be  en- 
joined while  they  are  in  the  hands  of  a  purchaser  with  notice."'- 


49  Ante,  §§   1046,  1048.   1049. 

5"  Wright  V.  Bishop,  88  HI.  302; 
Daviess  Co.  v.  Howard,  13  Rush 
(Ky.)  101;  Wagner  v.  Meety.  69 
Mo.  150;  Wellsborough  v.  New 
York  &c.  R.  Co.,  76  N.  Y.  182; 
Redd  v.  Henry  Co.,  31  Grat.  (Va.) 
695;  Lawson  v.  Schnellen,  33  Wis. 
288.  See  Board  v.  Chesapeake  &c. 
R.  Co.,  94  Ky.  377,  22  S.  W.  609; 
State  V.  Morristown,  93  Tenn.  239, 
24  S.  W.  13.  There  may  be  acts 
creating  an  effective  estoppel,  and 
there  may  also  be  a  conclusive  ad- 
judication upon  jurisdictional  facts 
which  wlil  repel  a  collateral  attack. 
Ante,  §§  1056,  1062. 

•"■i  New  Orleans  &c.  R.  Co.  v. 
Dunn,  51  Ala.  128;  Campbell  v. 
Paris  &c.  R.  Co.,  71  Til.  611;  Nefz- 
ger  V.  Davenport  &c.  R.  Co.,  36 
Iowa  642;  Mercer  County  v.  Pitts- 
burgh &c.  R.  Co.,  27  Pa.  St.  389; 
Winston  v.  Tennessee  &c.  R.  Co., 


1  Baxt.  (Tenn.)  60;  Redd  v.  Henry 
Co.,  31  Grat.  (Va.)  695.  Where, 
under  tlie  law  of  its  organization, 
a  railroad  company  liecomes  ex- 
tinct fr>r  failure  to  begin  construc- 
tion, municipal  bonds  issued  in  its 
aid  become  void  in  the  hands  of 
itself  and  its  agent,  at  the  date  of 
its  extinction.  Farnham  v.  Bene- 
dict, 107  N.  Y.  159,  13  N.  E.  784. 
Where  no  part  of  the  road  was 
built  in  the  townsiiip  as  required 
by  the  enabling  act  it  was  held  that 
the  railroad  company  was  not  en- 
titled to  the  bonds.  Midland  v. 
County  Board,  37  Nebr.  582.  56  N. 
W.  582.  See  State  v.  Morristown, 
93  Tenn.  239,  24  S.  W.  13;  Echols 
V.  Bristol,  90  Va.  165.  17  S.  E.  943. 
^2  A  town  for  which  railroad  aid 
bonds  have  been  issued  may  sue 
in  equity  to  restrain  the  payment 
of  interest,  and  to  require  them  to 
be    surrendered    and   canceled,   and 


523  MUNICIPAL  AID  BONDS  §  1000 

§  1090  (893a).  Right  of  railroad  company  to  money  or  bonds 
on  stock  subscription. — Where  the  peojile  have  determined  at 
the  election  id  take  stock  in  a  raih-oad  company,  the  company  is 
Ijound  liy  tliis  condition,  and  cannot  successlnllv  demand  that 
money  to  an  amount  ecpial  to  the  stock  shall  be  paid  over  to  it  as 
;i  donation. ■''■^  A  provision  in  the  charter  that  a  certain  per  cent, 
of  its  stock  shall  he  ])aid  in  cash  is  without  application  to  aid  ex- 
tended by  municipalities  in  the  construction  of  railroads  bv  an 
exchange  of  the  bonds  of  the  municipality  for  stock.'"* 

§  1091    (894).     Ratification  of  bonds  irregularly  issued. — The 

weight  of  authority  is  that  the  municipality  may.  where  it  has 
]K)wer  to  issue  bonds,  ratify  them  by  subsequent  action,  although 
the  proceedings  were  irregular  or  defective.  But,  where  a  vote 
of  the  inhabitants  is  required  in  order  to  authorize  the  execution 
of  bonds,  the  municipal  officers  cannot,  of  their  own  motion, 
\  alidate  bonds  issued  in  cases  where  the  proceedings  prior  to  the 
election  were  substantially  defective.  There  may,  however,  be 
such  acts  on  the  part  of  the  representatives  of  the  municipality 
as  will  constitute  an  estoppel. ^^     Acts  of  the  municipality  or  its 

the  town  need  not  await  a  suit  on  47  Hun  (N.  Y.)  46.  Where  the 
the  bonds  in  order  to  deny  their  statute  provides  that  the  president 
validity.  Cherry  Creek  v.  Becker,  of  the  company  shall  give  bond  to 
50  Hun  601,  2  N.  Y.  S.  514.  The  secure  the  application  of  the  avails 
court  will,  in  a  proper  case,  decree  of  bonds  issued  by  a  municipal  cor- 
the  cancellation  of  bonds,  illegally  poration.  the  fact  that  the  presi- 
issued.  Springport  v.  Teutonia  dent  does  not  execute  such  a  bond 
Savings  Bank,  75  N.  Y.  397.  But  does  not  invalidate  the  aid  bonds 
an  injunction  to  restrain  payment  where  the  road  is  completed  before 
of  bonds  after  they  have  been  is-  their  delivery.  Breckinridge  Co.  v. 
sued  will  not  be  granted  unless  the  McCracken,  61  Fed.  191. 
municipality  has  a  valid  defense  to  ^^^  Bj^tinger  v.  Bell,  65  Ind.  445: 
them.  Wilkinson  v.  City  of  Peru,  Citing  Paris  v.  Reynolds,  70  Ind. 
61  Ind.  1.  Where,  by  the  statute,  359;  Brocaw  v.  Board,  12>  Ind.  543: 
a  tax-payer  is  authorized  to  sue  to  Irwin  v.  Lowe,  89  Ind.  540:  Ham- 
prevent  the  payment  of  certain  rail-  ilton  Co.  V.  State,  115  Ind.  64,  4 
road  aid  bonds,  it  is  no  defense  to  N.  E.  589,  17  N.  E.  855. 
the  suit  that  the  objection  set  up  ^4  Austin  v.  Gulf  &c.  R.  Co..  45 
as  a  ground  for  canceling  the  bonds  Tex.  234. 

might  be  shown  as  a  defense  in  a  •''■'' Ante.     §§      1030,      1031.      1032: 

suit  on  the  bonds.     Strang  v.  Cook,  Tread  way     v.     Schnauber.     1     Dak. 


S  10!)  1 


RAILROADS 


524 


officers,  when  invested  with  authority,''*^  or  of  the  leg-islature, 
ratifvinsj;-  and  making  valid  a  municipal  subscription,  may  validate 
the  bonds  issued  in  payment  thereof.^^ 


236,  46  N.  W.  464:  Andes  v.  Ely, 
158  U.  S.  312,  15  Sup.  Ct.  954,  39 
L.  ed.  996,  citing  Williams  v. 
Duanesburgh,  66  N.  Y.  129;  Horton 
V.  Thompson,  71  N.  Y.  513;  Rogers 
V.  Stephens,  86  N.  Y.  623.  See  also 
Brown  v.  Milliken  Co.  Clerk,  42 
Kans.  769.  23  Pac.  167;  Schmitz  v. 
Zeh,  91  Minn.  290,  97  N.  W.  1049; 
Brown  v.  Bon  Homme  Co.,  1  S. 
]3ak.  216,  46  N.  W.  173. 

■■><'  Marcy  v.  Oswego  Tp.,  92  U.  S. 
6?>7.  23  L.  ed.  748;  Converse  v.  Fort 
Scott,  92  U.  S.  503,  23  L.  ed.  621; 
Randolph  County  v.  Post,  93  U.  S. 
502,  23  L.  ed.  957;  Orleans  v.  Piatt, 
99  U.  S.  676,  25  L.  ed.  404;  Cause 
V  Clarksville,  1  Fed.  353;  McGill- 
viray  v.  School  Dist.,  112  Wis. 
354,  88  N.  W.  310,  58  L.  R.  A.  100. 
88  Am.  St.  969.  See  also  Barrett 
V.  Schuyler  Co.  Ct.,  44  Mo.  197; 
Brown  v.  Bon  Homme  Co.,  1  S. 
Dak.  216,  46  N.  W.  173;  and  note 
to  Weil  &  Co.  V.  Newbern,  126 
Tenn.  223,  in  L.  R.  A.  191 5A,  1009. 

57  Bates  County  v.  Winters,  97 
U.  S.  83,  24  L.  ed.  933:  South  Ot- 
tawa V.  Perkins,  94  U.  S.  260.  24 
L.  ed.  154;  St.  Joseph  Tp.  v.  Rog- 
ers, 16  Wall.  (U.  S.)  644,  21  L.  ed. 
328;  Otoe  County  v.  Baldwin.  Ill 
U.  S.  1,  4  Sup.  Ct.  265.  28  L.  ed. 
331:  Utter  v.  Franklin  Tp..  172  U. 
S.  416,  19  Sup.  Ct.  183,  43  L.  ed. 
498;  January  v.  Johnson  Co.,  3  Dill. 
(U.  S.)  392;  Bridgeport  v.  Housa- 
tonic  R.  Co.,  15  Conn.  475;  Keiths- 
burg  v.  Frick,  34  111.  405;  Shelby 
Co.  Ct.  V.  Cumberland  &c.  R.  Co., 
8  Bush  (Ky.)  209;  Sykes  v.  Colum- 


bus. 55  Miss.  115;  Alexander  v. 
McDowell  Co.,  79  N.  Car.  208. 
Where  railroad  aid  bonds  were  is- 
sued after  the  adoption  of  the  Illi- 
nois constitution  of  1870,  which  for- 
bade the  issuance  of  such  bonds 
except  where  they  had  been  au- 
thorized before  such  adoption  by  a 
vnte  (if  the  people  under  "existing 
laws."  but  such  bonds  were  author- 
ized at  an  election  irregularly  held, 
which,  however,  was  ratified  by  the 
legislature  before  the  adoption  of 
the  constitution,  such  ratification 
does  not  validate  the  bonds  issued 
after  the  constitution  was  adopted, 
since  the  "existing  laws"  referred 
to  in  the  constitution  are  the  laws 
in  force  when  the  election  was  held. 
Williams  V.  People,  132  111.  574,  24 
N.  K.  647.  disapproving  Jonesboro 
City  V.  Cairo  &c.  R.  Co.,  110  U.  S. 
192.  4  Sup.  Ct.  67,  28  L.  ed.  116. 
But  an  act  which  declares  the  aid 
proposed  to  be  given  to  be  a  debt 
f)n  the  township,  and  provides  for 
its  payment,  but  does  not  validate 
the  bonds  illegally  issued  under  a 
void  vote  to  give  such  aid,  and  does 
not  legalize  the  proceedings  by 
which  such  bonds  were  issued,  will 
not  entitle  the  railroad  companj^  to 
a  writ  of  mandamus  to  compel  the 
township  officers  to  sign  a  certifi- 
cate of  the  completion  of  the  road 
by  means  of  which  the  company 
may  obtain  deliver}'-  of  the  bonds. 
State  V.  Whitesides,  30  S.  Car.  579, 
9  S.  E.  661,  3  L.  R.  A.  777,  and 
note;  State  v.  Harper,  30  S.  Car. 
586.  9  S.  E.  664. 


ry25  MCXICIPAL  AID  BONDS  §  1092 

§  1092  (894a).  Ratification  of  invalid  bonds. — Where  ne- 
gotiable railway  aid  bonds  issued  by  a  city  are  void  for  want  of 
authority  in  the  city  to  issue  the  same,  the  mere  fact  that  the  city 
is  authorized  by  statute  to  refund  its  indebtedness  and  can  issue 
its  warrants  for  the  particular  purpose  for  which  the  bonds  were 
issued  will  not  operate  to  validate  the  bonds  in  the  absence  of 
some  act  by  the  city  in  the  direction  of  a  refundment  in  the  man- 
ner indicated.  It  is  not  the  law  that  an  unauthorized  act,  which 
ma}-  be  ratified,  is  binding"  whether  ratified  or  not.^® 

§  1093  (895).  When  bonds  are  void. — We  have  heretofore 
shown  that  bonds  issued  in  cases  where  there  is  an  entire  absence 
of  power  can  not  be  enforced,  even  by  one  who  has  bought  them 
in  good  faith,  and  this  is  substantially  equivalent  to  saying  that 
they  are  A'oid,  but  we  do  not  mean  to  say  that  bonds  issued  with- 
out statutory  authority  are  incapable  of  ratification  by  an  effec- 
tive curali\c  statute.  We  employ  the  term  "void"  in  this  con- 
nection in  the  sense  in  which  it  is  often  used,  although  the  term 
"voidable"  would,  perhaps,  be  the  more  accurate  one.  We  think 
that,  where  there  is  legislative  power  to  authorize  a  municipality 
to  issue  bonds,  but  the  bonds  are  issued  without  a  statutory 
grant  of  power,  they  are  not  absolutely  void,  that  is  to  say,  they 
are  not  "a  mere  nothing  incapable  of  ratification"  by  legislative 
enactment.     Bonds  issued  without  statutory  authority, ^^  or  by 

■'s  Swanson  v.   Ottumwa    (Iowa),  rev,   108  U.  S.  110,  2  Sup.  Ct.  361, 

106   N.   W.  9,   5   L.   R.  A.    (N.   S.)  27   L.   ed.  669;   Citizens'   &c.    Loan 

860.    And  municipal  ratification  will  Assn.  v.   Topeka,  20  Wall.   (U.   S.) 

not    validate    where    there     is     no  655,  22  L.  ed.  455;  St.  Joseph  Tp. 

power.     Doon  Tp.  v.  Cummins,  142  v.  Rogers,  16  Wall.  (U.  S.)  644.  21 

U.  S.  366,  12  Sup.  Ct.  220,  35  L.  ed.  L.    ed.    328;    Aspinwall    v.    Daviess 

1044;    Comrs.   of    Sinking    Fund    v.  County,  22   How.    (U.    S.)    364,    16 

Zimmerman.  101  Ky.  432.  41   S.  W.  L.  ed.  296;  Eddy  v.  People,  127  111. 

428:  4  Elliott  Cont.  §  3572;  note  in  428;  Williamson  v.  Keokuk,  44  Iowa 

L.  R.  A.  1915A,  1009.  88;    Agawam    Nat.    Bank   v.    South 

^^  German  Savings  Bank  V.  Frank-  Hadley,    128    Mass.    503;    Sykes    v. 

lin    Count}'.    128   U.   S.   526,   9   Sup.  Columbus,    55    Miss.    115;    Duke   v. 

Ct.    159,   32    L.    ed.    519;    Purdy   v.  Brown,  96  N.  Car.  127,  1  S.  E.  873; 

Lansing,  128  U.  S.  557,  9  Sup.   Ct.  .Millerstown   v.    Frederick,    114   Pa. 

172,  32  L.  ed.  531;   Ottawa  v.   Ca-  St.  435.  7  Atl.  156. 


§  1093 


RAILROADS 


526 


autlu)rity  of  an  unconstitutional  statute/'"  are  often  said  to  be 
\(ii(l,  even  in  the  hands  of  bona  tide  purchasers."'  and  it  is  said 
that  no  recitals  which  they  contain  can  so  estop  the  municipality 
as  to  give  them  validity.  We  say,  to  avoid  possible  misunder- 
standing', that  bonds  which  can  be  ratified  are  not,  in  the  strict 
sense,  void,  but  bonds  that  cannot  be  ratified  by  legislative  enact- 
ment are  absolutely  void.  It  is,  therefore,  strictly  accurate  to 
say  that  bonds  issued  in  violation  of  the  constitution  are  ab- 
solutely void.  Upon  the  principle  that  an  act  which  violates  the 
constitution  is  entirely  destitute  of  force,  the  federal  courts  hold 
that  an  issue  of  bonds  in  excess  of  the  limit  of  indebtedness  pre- 
scribed by  the  state  constitution  is  void,  and  that  no  acts  of  the 
municipality,  nor  any  recitals  which  may  appear  in  the  bonds, 


"^  Harshman  v.  Bates  County.  92 
U.  S.  569,  23  L.  ed.  747;  Wells  v. 
Supervisors,  102  U.  S.  625,  26  L.  ed. 
122;  Ogden  v.  Daviess  County,  102 
U.  S.  634.  26  L.  ed.  263;  Allen  v. 
Louisiana,  103  U.  S.  80,  26  L.  ed. 
318;  Jarrolt  v.  iMoberly,  103  U.  S. 
580,  26  L.  ed.  492;  Howard  Co.  v. 
Paddock,  110  U.  S.  384,  4  Sup.  Ct. 
24.  28  L.  ed.  171.  Since  the  con- 
stitution of  Missouri  requires  the 
consent  of  two-thirds  of  the  quali- 
fied voters  before  a  municipalitj- 
can  grant  aid  to  a  railroad,  a  stat- 
ute is  void  which  assumes  to  give 
authority  to  issue  bonds  without 
any  vote.  Hill  v.  Memphis.  134 
U.  S.  198,  10  Sup.  Ct.  562.  33  L.  ed. 
887.  The  United  States  courts  have 
held  the  "Township  Aid  Act"  of 
Missouri  of  March  23,  1868,  to  be 
constitutional  and  that  bonds  issued 
by  authority  of  that  act  arc  valid. 
Cass  County  v.  Johnston,  95  U.  S. 
360,  24  L.  ed.  416.  And  this  deci- 
sion was  adhered  to  after  the  su- 
preme court  of  Missouri  in  State 
V.  Brassfield,  67  Mo.  331,  had  held 
the  act  unconstitutional.     Foote  v. 


Johnson  County,  5  Dill.  (U.  S.) 
281;  State  v.  Hannibal  &c.  R.  Co., 
101    Mo.  136. 

'■'  A  distinction  is  taken  between 
an  entire  absence  of  power  to  is- 
sue bonds  and  a  defective  execu- 
tion of  an  existing  power,  acts 
done  under  the  latter  being  held 
to  bind  the  corporation  in  certain 
cases,  while  acts  done  in  the  ab- 
sence of  power  to  perform  them 
never  do.  German  Savings  Bank 
V.  I'ranklin  County.  128  U.  S.  526. 
9  Sup.  Ct.  159.  32  L.  ed.  519;  St. 
Joseph  Tp.  V.  Rogers,  16  Wall.  (U. 
S.)  644.  21  L.  ed.  328,  and  cases 
cited  supra.  In  Toledo  Northern 
Bank  V.  Porter  Tp.,  110  U.  S.  608. 
4  Sup.  Ct.  254,  28  L.  ed.  258.  the 
court  says:  "The  question  of  legis- 
lative authority  in  a  municipal  cor- 
poration to  issue  bonds  in  aid  of  a 
railroad  oompau}-  can  not  be  con- 
cluded by  mere  recitals;  but,  the 
power  existing,  the  municipality 
may  be  estopped  by  the  recitals  to 
prove  irregularity  in  the  exercise 
of  that  power." 


527 


^rrxicTPAL  AID  noxns 


§  1093 


can  g'ive  such  l^onds  any  validity."'-  The  distinction  which  is 
made  between  such  a  case  and  the  cases  where  an  issue  of  bonds 
is  allowed  only  upon  certain  conditions  prescribed  by  statute  has 
been  thus  stated:  "In  this  case  the  standard  of  validity  is 
created  by  the  constitution.  .  .  .  These  beings  the  exactions 
of  the  constitution  itself,  it  is  not  within  the  power  of  the  le,s;"is- 
lature  to  dispense  \vith  them,  either  directly  or  indirectly,  by 
the  creation  of  a  ministerial  commission  whose  findinq'  shall  be 
taken   in   lieu   of   the  facts."*'" 


62  Buchanan  v.  Litchfield,  102  U. 
S.  278,  26  L.  ed.  138;  Dixon  County 
V,  Field,  111  U.  S.  83,  4  Sup.  Ct. 
315,  28  L.  ed.  360;  Litchfield  v. 
Ballon,  114  U.  S.  190,  5  Sup.  Ct. 
820,  29  L.  ed.  132;  Katzenberger  v. 
Aberdeen,  121  U.  S.  172,  30  L.  ed. 
911;  Lake  County  v.  Rollins,  130 
U.  S.  662,  9  Sup.  Ct.  651,  2>2  L.  ed. 
1060.  Where  an  issue  of  county 
bonds  for  donation  to  a  railroad 
has  been  adjudged  void  because  in 
excess  of  the  constitutional  limit 
of  indebtedness,  equity  has  no 
power  to  reduce  the  issue  to  the 
limit,  and  enforce  it  against  the 
county,  the  contract  being  indivis- 
ible, and  void  in  toto,  and  there 
being  no  executed  consideration 
to  support  an  implied  promise. 
Hedges  v.  Dixon  Co.,  Zl  Fed.  304. 
See  also  Balch  v.  Beach,  119  Wis. 
n.  95  N.  W.  132. 

*'■'  Lake  County  v.  Graham,  130 
U.  S.  674,  9  Sup.  Ct.  654.  32  L.  ed. 
1065.  The  reasons  here  assigned 
would  seem  to  cover  a  failure  to 
observe  any  other  precedent  con- 
ditions prescribed  by  the  constitu- 
tion, such  as  a  failure  to  hold  a 
required  election,  etc.  See  Hill  v. 
Memphis,  134  U.  S.  198,  10  Sup.  Ct. 
562.  Z2>  L.  ed.  887.  An  agreement 
entered  into  between  a  railway 
company   and   the   authorities   of   a 


town,  upon  petition  of  a  majority 
of  the  tax-payers  in  pursuance  of 
tlie  laws  of  Minnesota,  for  the  is- 
suance of  the  bonds  of  such  town, 
but  which  was  not  submitted  to  a 
vote  as  required  by  a  section  of  the 
law.  is  invalid,  and  imposes  no  le- 
gal obligation  upon  the  town,  by 
reason  of  the  unconstitutionality  of 
the  statute;  and  the  town  in  its 
corporate  capacity,  is  not  estopped 
to  resist  the  enforcement  of  bonds 
so  issued  by  the  completion  of  a 
line  of  railroad  under  the  agree- 
ment by  such  company.  Plainview 
V.  Winona  &c.  R.  Co.,  Zd  Minn.  505, 
il  X.  W.  745;  Elgin  v.  Winona 
&c.  R.  Co.,  Zd  Minn.  517,  32  N.  W. 
749;  Harrington  v.  Plainview,  27 
Minn.  224,  6  N.  W.  111.  Under  the 
law  of  ^lississippi.  which  declares 
that  the  legislature  shall  not  au- 
thorize any  county,  city,  or  town 
to  aid  any  corporation,  unless 
two-thirds  of  the  qualified  voters 
of  such  municipality  shall  assent 
thereto  at  a  special  election,  it  was 
held  railroad  aid  bonds  were  not 
invalidated  in  the  hands  of  inno- 
cent purchasers  by  the  fact  that 
less  than  such  majority  voted  for 
them,  where  more  than  two-thirds 
of  the  votes  cast  were  in  favor  of 
issuing  the  bonds.  Madison  Coun- 
ty V.    Priestly,  42   Fed.  817. 


§  10!)4  KAILKOADS  528 

§  1094  (895a).  Form  of  bonds — To  whom  payable. — A  stat- 
ute under  which  Ijonds  of  a  county  were  issued  required  that 
they  should  be  made  payal)le  to  a  raih'oad  company  "and  their 
successor  and  assigns,"  but  they  were  drawn  payable  to  the  com- 
I'any  or  bearer.  It  was  contended  that  this  variance  from  the 
prescribed  formula  was  a  fatal  defect,  but  the  court  held  that  the 
lequirement  was  only  directory,  and  that,  the  irregularity  having 
been  committed  by  the  servant  of  the  city,  the  latter  was  in  no 
position  to  take  advantage  of  it."* 

§  1095  (895b).  Form  of  bonds — Lack  of  seal. — Bonds  reg- 
ularly issued  by  a  municipal  corporation,  and  otherwise  legal, 
will  not  be  rendered  invalid  by  the  omission  of  the  corporate 
seal.*^"'  In  a  case  involving  this  question  it  was  said:  "It  is 
apparent  from  the  law  that  the  substantial  thing  authorized  to 
be  done  on  behalf  of  the  town  was  to  pledge  the  credit  of  the 
town  in  aid  of  the  railroad  company  in  the  construction  of  its 
road,  l)y  subscribing  to  its  capital  stock  and  issuing  the  obliga- 
tions of  the  town  in  payment  thereof.  The  technical  form  of 
the  obligation  was' a  matter  of  form  rather  than  of  substance. 
The  issue  of  bonds  under  seal,  as  contradistinguished  from  bonds 
or  obligations  without  seal,  was  merely  a  directory  requirement.*""' 

§  1096  (896).  Bona  fide  holders  of  aid  bonds. — The  courts 
have  gone  very  far  in  protecting  bona  fide  holders  of  aid  bonds. 
They  have  extended  the  doctrine  of  estoppel  to  great  lengths  for 
the  protection  of  that  class  of  persons.     They  have  also  liberally 

"4  Calhoun    County    v.    Galhraith,  •'''  Draper    v.    Springport,    104    U. 

99   U.    S.  214,   25    L.   ed.   410.      See  S.  501,  26  L.  cd.  812;  San  Antonio 

also  West  Plains  Twp.  v.  Sage,  69  v.  Mehaffy,  96  U.  S.  312,  24  L.  ed. 

Fed.  943;    IndianApolis   &c.    R.    Co.  816;  Bernards  Tp.  v.  Stebbins,   109 

V.   Horst,  93   U.   S.  291,  23   L.   ed.  U.  S.  341,  3  .Sup.  Ct.  252,  27  L.  ed. 

898;  Rock  Creek  Tp.  v.  Strong,  96  956.       See     also     Smythe    v.     New 

U.  S.  271,  24  L.  ed.  815.     And  see  Providence,  158  Fed.  213;  Schmidt 

generally  as  to  whom  bonds  should  v.  Defiance,  117  Fed.  702,  affirmed 

be  made  payable  and  effect  of  using  in  123  Fed.  1. 

the   term   "holder"   or  "bearer."   or  *■■"  Draper  v.  Springport,  104  U.  S. 

leaving     blank,     4      Elliott     Cont.  501.  26  L.  cd.  812. 
§    3567;    P>argate    v.    Shortrid:Te.    5 
11.   I..  Cas.  297. 


529  MIXICIPAL  AID  liONDS  §  109o 

construed  statutes  in  order  to  give  validity  to  bonds  in  the  hands 
of  bona  fide  holders,  and  the  federal  courts  have  held  that,  where 
a  state  court  gives  a  construction  to  a  statute  which  upholds  the 
bonds,  it  will  not  be  allowed  to  change  its  decision  so  as  to  in- 
validate the  bonds  in  the  hands  of  a  bona  fide  holder  who  harl 
acquired  the  l^onds  while  the  earlier  decision  was  in  force, '^'  or  at 
least  that  the  federal  courts  will  sustain  the  contract  as  legal  in 
such  cases.*^^  "To  be  a  bona  fide  holder,  one  must  be  himself  a 
purchaser  for  value  without  notice,  or  the  successor  of  one  who 
Avas.  Every  man  is  chargeable  with  notice  of  that  which  the  law 
requires  him  to  know,  and  of  that  wdiich,  after  being  put  upon 
inquir}'.  he  might  have  ascertained  with  reasona])le  diligence. 
Every  dealer  in  municipal  bonds,  which  upon  their  face  refer  to 
the  statute  under  which  they  are  issued,  is  bound  to  take  notice 
of  the  statute  and  its  requirements."'^''     The  general  rule  is  that 

•^"Douglass   V.    Pike   County,    101  al.^o      National      .Mut.     Bld'ng     &c. 

U.    S.   677,  25    L.   ed.   968;   Gelpcke  Assn.  v.  Brahan,  193  U.  S.  635,  24 

V.  Dubuque,  1  Wall.  (U.  S.)  175,  17  .Sup.  Ct.  532,  48  L.  ed.  823;  Swan- 

L.  ed.  520:  Taylor  v.  Ypsilanti,  105  son  v.  Ottumvva,  131  Iowa  540,  106 

U.  S.  60,  26  L.  ed.  1008;  Ohio  Life  N.  W.  9,  5   L.   R.   A.  (N.  S.)   860; 

Ins.  &c.   Co.  V.   De  Bolt,   16   How.  Crigler    v.    Sheplcr,    79    Kans.   834, 

(U.  S.)   416,   14  L.  ed.  997;  Ander-  101    Pac.  619,  23   L.   R.  A.    (X.  S.) 

son   V.   Santa   Anna.   116   U.   S.  356,  500;  Storrie  v.  Cortes,  90  Tex.  283, 

6  Sup.  Ct.  413,  29  L.  ed.  6ZZ;  Los  38  S.  W.  154,  35  L.  R.  A.  666.   And 

Angeles  v.   Los  Angeles   City  Wa-  see  explanation  in  Loeb  v.   Colum- 

ter  Co.,  177  U.  S.  558,  20  Sup.  Ct.  bia  Tp.,  179  U.  S.  472,  21  Sup.  Ct. 

739,  44  L.  ed.  886.     See  also  Oliver  174,  45  L.  ed.  280. 

Co.    V.    Louisville    Realty    Co.,    161  .  69  McClure   v.    Oxford,    94   U.    S. 

S.  W.  570,  156  Ky.  628;  Stallcup  v.  429,    24    L.    ed.    129.      In    the    case 

Tacoma,    13    Wash.     141,     42    Pac.  cited   the   purchaser   of  bonds   was 

541,  52  Am.  St.  25;  Union   P)ank  v.  held    bound    to    take    notice   of   the 

Oxford,  90  h>d.  7;  Muhlkcr  v.  New  time    the    enabling    act    went    into 

^'(M•k  (!tc.  R.  Ctx,   197  V.  S.  544,  25  force.      In   the   course   of  the   opin- 

Sup.  Ct.  522,  49  L.  ed.  872;  Thomas  ion  it   was  said:    "The   statute  un- 

V.  State,  76  Ohio  St.  341,  81   N.   E.  der  which  the  bonds  now  in  ques- 

437.    118  Am.   St.  884.  tion   were  issued,  and  which  is  re- 

'■'^  It  seems  that  the  obligation  of  ferred     to    in     the    bonds,     though 

a    contract    is   not    impaired   within  passed     and     approved     March     1, 

the   constitutional    iirohibition   by   a  1872,    v.as    not   by    its    terms   to    go 

•  mere     judicial     decision.        Central  into    effect    until    after    its    publica- 

Land  Co.  v.  Laidley.  159  U.  S.  103,  tion   in   the   "Kansas   Weekly   Com- 

16  Sup.   Ct.  SO,  40  L.  ed.  91.     Sec  monwealth.'      Of    this    every    pur- 


1096 


RAILROADS 


530 


no  one  can  claim  to  he  a  bona  fide  holder  when  the  bonds  them- 
selves contain  recitals  showing  that  they  were  not  issued  in  ac- 
cordance with  any  existing  law.'"  Thus,  where  the  bonds  re- 
cited that  they  were  issued  under  a  statute  which  had  been  de- 
clared to  be  void,  it  was  held  that  such  a  recital  was  notice  to  the 
])urchaser  of  their  invalidity.'^  But  such  a  recital  will  not  pre- 
vent the  holder  of  the  bonds  from  showing  that  they  were  really 


chaser  of  tlic  l)<>n<is  liad  notice, 
l)ecaiise  it  was  part  of  the  statute 
he  was  bound  to  take  notice  of. 
A  inirchaser  would,  therefore,  be 
put  upon  inquiry  as  to  the  time  of 
the  publication,  and  by  reasonable 
diligence  could  have  ascertained 
that  this  did  not  take  place  until 
March  21.  This  being  the  case,  the 
law  charges  him  with  knowledge 
that  the  statute  did  not  go  into 
effect  until  that  date."  See  gener- 
ally as  to  making  inquiry,  Crom- 
well V.  Sac  County,  96  U.  S.  51. 
24  b.  ed.  681;  Francis  v.  How-ard 
Co.,  54  Fed.  487:  ball  v.  Presidio 
Co.,  88  Tex.  60,  29  S.  W.  1042. 

""  Harshman  v.  Bates  County,  92 
U.  S.  569,  23  L.  ed.  747;  McClure 
V.  Oxford,  94  U.  S.  429,  24  L.  ed. 
129;  Bates  County  v.  Winters,  97 
U.  S.  83,  24  L.  ed.  933;  Anthony  v. 
Jasper  County.  101  U.  S.  693,  25 
L.  ed.  1005;  Barnes  v.  Lacon.  84 
111.  461:  Jcdinson  v.  Butler,  31  T.a. 
Ann.  770;  Woodruff  v.  Okolona,  57 
.Miss.  806;  Dodge  v.  Platte  Co..  82 
N.  V.  218.  A  purchaser  of  bonds 
is  bound  to.  take  notice  of  all  re- 
citals therein.  Kohn  v.  Sacramento 
Elcc.  Sec.  R.  Co.,  168  Cal.  1,  141 
Pac.  626. 

■1  Gilson  V.  Dayton,  123  U.  S. 
59,  8  Sup.  Ct.  66,  31  L.  ed.  74;  Crow 
V.  Oxford,  119  U.  S.  215,  7  Sup.  Ct. 
180,   30   L.  ed.   388.     In   this   latter 


case  it  is  held  that  tlie  certificate 
of  the  state  auditor,  as  to  matters 
which  he  was  not  authorized  by 
the  statute  under  which  the  bonds 
were  issued  to  certify,  is  of  no  avail 
against  the  municipality,  although 
it  procured  such  certificate  to  be 
indorsed  upon  the  bonds.  The 
New  York  act  of  1869  was  ainend- 
ed  in  1871,  so  as  to  authorize  the 
issuance  of  railroad  aid  bonds  upon 
the  petition  of  a  majority  of  the 
tax-payers  "who  are  taxed  or  as- 
sessed for  property,  not  including 
those  taxed  for  dogs  or  highway 
lax  only,  upnu  the  last  preceding 
assessment  roll,  .  .  .  and  who 
represent  a  majority  of  the 
taxable  property."  It  was  held,  in 
a  suit  to  enforce  bonds  issued  after 
the  amended  act  was  passed,  that 
a  petition,  after  the  enactment  of 
the  later  statute  which  followed  the 
language  of  the  act  of  1869,  and 
did  not  show  that  petitioners  were 
a  majority  of  the  tax-payers  ex- 
clusive of  those  "taxed  for  dogs 
or  highways  onl}-,"  conferred  no 
pr)wer  on  the  county  judge,  and  an 
adjudication  thereon  which  was 
similarly  defective,  and  bonds  is- 
sued on  it.  which  recited  that  they 
were  issued  under  the  act  of  1869, 
were  void.  Rich  v.  Mentz  Tp.,  134 
U.  S.  632,  10  Sup.  Ct.  610.  33  L.  ed. 
1074. 


r);Jl  Mr-xirip.\r.  aid  BoxDf^  §  1007 

issued  ])}■  authority  of  a  different  act  than  the  one  referred  to.  in 
vhich  case  they  may  be  valid.'-  It  has  also  l)een  held  that  jjur- 
chasers  of  county  bonds  issued  under  statutory  auth(jritv  to  aid 
in  the  com])lction  of  any  raih'oad  in  Uhicli  the  citizens  of  the 
count}-  have  an  interest,  are  ntjt  entitled  to  assume,  for  the  pur- 
pose of  sustainint^-  the  validity  of  the  bonds,  that  the  railroad  had 
been  be,^-un  ])efore  the  adoption  of  a  provision  of  the  constitution 
antedating-  the  charter  of  the  company,  but  that  a  recital  in  the 
bonds  that  they  were  issued  under  the  authority  of  such  statute 
entitled  Ijona  tide  jjurchasers  to  assume  that  the  condition  of  the 
road  as  to  construction,  and  the  interest  of  the  countv  therein, 
v.  ere  such  as  were  required  by  such  statute  to  exist  before  the 
bonds  could  be  lawfull}-  issued.''* 

§  1097  (897).  Estoppel  by  recitals  in  bonds — General  doc- 
trine.— The  courts  regard  with  favor  bona  I'ule  holders  of  aid 
bonds,  and  lil)erally  apply  the  doctrine  of  estoppel,  in  order  to 
I>rotect  such  holders.  Recitals  are  given  great  force  and  effect. 
It  is  an  established  rule  in  the  United  States  courts,  where  most 
of  the  litigation  involving  the  validity  of  such  bonds  is  carried 
en.  that,  where  powder  exists  to  issue  bonds  upon  certain  condi- 
tions, and  the  question  of  compliance  with  those  conditions  is 
left  by  the  statute  to  the  officers  issuing  the  bonds  for  decision, 
or.  it  seems,  wdiere  the  existence  of  the  facts  warranting  an 
exercise  of  the  power  is  peculiarly  within  the  knowdedge  of  such 
officers,  the  municipality  will  be  bound  by  the  recital  of  the  bonds 
as  to  such  matters.'^     The  rule  has  been  thus  stated  :     "Where 

"- .\nclersoii   County   v.    Bcal,    113  U.  S.  336,  6  Sup.  Ct.  764,  29  L.  ed. 

U.  S.  227,  5  Sup.  Ct.  433,  28  L.  ed.  904;  Alenasha  v.  Hazard,  102  U.  S. 

966;    Knox    County    v.    New    York  81.  26  L.  cd.  85;  Pompton  v.  Cooper 

Ninth    National    Bank,    147    U.    S.  Union,  101  U.  S.  196,  25  L.  ed.  803; 

91.    13   Sup.    Ct.  267,   Zl   L.   ed.  93.  Hackett  v.  Ottawa,  99  U.  S.  86,  25 

Compare   Inhabitants  of   Harmony  L.  cd.  Z(iZ\   Brooklyn  v.  Insurance 

V.  Truman,  212  Fed.  4;  Ninth  Nat.  Co.,   99   U.    S.   362,   25    L.    ed.   416; 

Bank  v.  Knox  Co..  11  Fed.  75.  Block   v.   Commissioners.  99   U.   S. 

"■•^  Stanly    County    v.    Colcr.    190  686,  25  L.  ed.  491 ;  Daviess  County 

U.  S.  437.  21  Sup.  Ct.  811,  47  L.  cd.  v.  Huidekoper.  98  U.  S.  98.  25  L.  ed. 

1126.  112;    Warren    County  v.    Marcy,   97 

74  New  Providence  v.  Halsey,  117  U.   S.   9t),   24    L.   ed.  977;   San   An- 


§  1097  RAILROADS  532 

legislative  authority  has  been  given  to  a  municipality,  or  to  its 
officers,  to  subscrilje  for  the  stock  of  a  railroad  company,  and  to 
issue  municipal  bonds  in  payment,  but  only  on  some  precedent 
condition,  such  as  a  ])opular  vote  faxoring  the  subscription,  and 
where  it  may  be  gathered  from  the  legislative  enactment  that 
the  officers  of  the  municipality  were  invested  with  powers  to 
decide  Axhether  the  condition  has  been  comi)lied  with,  their  re- 
( ital  that  it  has  been  made  in  the  l^onds  issued  by  them,  and  held 
l>y  a  bona  lide  piu'chaser,  is  conclusive  of  the  fact  and  l^inding 
upon  the  uiunicii)alit}-,  for  the  recital  itself  is  a  decision  of  the 
fact  b}'  the  appointed  tril^unal."''"'     The  doctrine  of  the  federal 

tonio  V.   :\leh:iffy,   96   U.   S.  312,  24  'I'olcdo    Xortliern    Bank    v.    Porter 

k.     ed.    816:     Dougkis     County    v.  T]).,  110  U.  S.  608.  4  Sup.  Ct.  254, 

Bolles,  94  U.  S.   104,  24  L.  ed.  46;  28    1,.    cd.    258;    Dixon    County    v. 

Johnson   County  v.  January,  94  U.  Field,  111  U.  S.  83.  4  Sup.  Ct.  315, 

S.  202,  24  L.  cd.  110;  Marion  Coun-  28  L.  cd.  360;  Anderson  County  v. 

ty  v.  Clark,  94  U.  S.  278,  24  L.  ed.  I'.cai,  113  U.  S.  227,  5  Sup.  Ct.  433, 

59;  Coloma  v.  Eaves,  92  U.  S.  484,  28  L.  ed.  966;  Phelps  v.  Lewiston, 

23    k.    ed.    579;    Moran    v.    Miami  15    Rlatchk    (U.    S.)    131;    Irwin   v. 

County.    2    Black    (U.    S.)    722,    17  Ontario.  3   I'cd.  49;  Piatt  v.   Hitch- 

L.  cd.  342:  Columbus  v.  Dennison,  cock    County.    139    l'\(l.    929.      Sec 

69    Fed.    58.      See    also    Waite    v.  also  Town  of  Aurora  v.  Gates,  208 

Santa  Cruz.  184  U.  S.  302,  22  Sup.  l"cd.  101.  I,.  R.  A.  1915A,  910:  Tru- 

Ct.    327,    46    T>.    cd.    552;    Gunnison  man    v.    kihabitants    of    Harmony, 

County   v.    E.    Ik    Rollins    &   Sons.  205   I'cd.  549.  reversed  in  212  Fed. 

\7?,  U.  S.  255.   19  Sup.   Ct.  390.  43  4:    Quinlan    v.    Green    County,   205 

k.  ed.  689;  Chaffee  County  v.  Pot-  I'.  S.  410.  27  Sup.  Ct.  505.  51  L.  ed. 

ter,  142  U.  S.  355,  12  Sup.  Ct.  1040.  860;      Presidio      County     v.     Noel- 

35   k.   cd.   1040;    Kent  v.  Dana.   100  ^'oun-  Bond  t<<:c.  Co..  212  U.  S.  58, 

Fed.  56;  Clapp  v.  Marice  City,  111  29    Sup.    Ct.    237,    53    k.    ed.    402. 

Fed.    103;    Municipal    Trust    Co.    v.  \\'hcre   the   coimty  court   has   been 

Jojmson    City.   116   Fed.  458;   Fair-  designated    b}'    the    statute    as    the 

field   V.    Rural    Independent   School  ])ro])cr   authority   to   determine   the 

Dist..    116    l'>d.    838;    Independent  existence    of   the   conditions   neces- 

Scliool    Dist.    V.    Rew.    Ill    Fed.    1.  sary   to   authorize    the    subscription 

I'.nd      nmnerous     authorities     there  by    the    township    to    the    railroad 

cited:    Town    of    .\urora    v.    Gates,  company's    stock,    and    the    conse- 

208  Fed,   101.  E.   R.  A.  1915A.  910,  quent   issuance    of  bonds,    the   fact 

and  cases  cited  in  opinion  and  note.  of  the  issue  thereof  by  the  county 

"■''Coloma  V.  Eaves,  92  U.  S.  484.  court    under   its   seal,   with    the   re- 

23   k.  ed.   579;   Buchanan  v.  kitch-  cital    that    all    the    necessary    steps 

field.   102  U.   S.  278,  26  k.   ed.   138;  have  l)een  taken,  together  with  the 


53:J 


MI'XICIl'AL  AIL)  HOXDS 


§1098 


tribunals   is   very   generally   adopted   and   asserted    hy   the   st-;ite 
C(jnrts.'" 

§  1098  (898).  Estoppel  by  recitals  in  bonds — Illustrative 
cases. — In  a  rec:ent  case  it  was  held  that  a  recital  in  aid  bonds 
estopped  the  municipality  from  questioning  the  qualifications 
I'f  the  count}-  judge,''  ai:d  from  (juestioning  the  corporate  exist- 


lact  tliat  tlie  countj''  has  for  several 
years  paid  interest  on  tlie  bonds, 
c^top  it  from  setting  up,  as  against 
a  bona  fide  holder,  any  mere  ir- 
regularity in  making  the  subscrip- 
tion or  issuing  the  bonds.  Livings- 
ton County  v.  Portsmouth  First 
Xat.  l'>ank.  128  U.  S.  102,  9  Sup.  Ct. 
18,  2,2  L.  ed.  359:  Hopper  v.  Cov- 
ington. 8  Fed.  777;  Carrier  v.  Shaw- 
angunk,  10  Fed.  220;  Lane  v.  Emb- 
den,  71  Maine  354;  Anderson  Co. 
V.  Houston  &c.  R.  Co.,  52  Tex.  228. 
"•^  New  Haven  &c.  R.  Co.  v. 
Chatham,  42  Conn.  465;  Jefferson 
Co.  V.  Lewis,  20  Fla.  980;  Johnson 
v.  Stark  Co.,  24  111.  75;  Clarke  v. 
Hancock  Co.,  27  III.  305;  Williams 
V.  Roberts,  88  III.  11;  Burlington 
c1:c.  R.  Co.  V.  Stewart,  39  Iowa  267; 
Lamb  v.  Burlington  &c.  R.  Co.,  39 
Iowa  2)32>\  Chicago  &c.  R.  Co.  v. 
Shea,  67  Iowa  728,  25  N.  W.  901: 
Leavenworth  &c.  R.  Co.  v.  Doug- 
lass Co.,  18  Kans.  169;  Kansas  City 
&c.  R.  Co.  V.  Rich,  45  Kans.  275. 
25  Pac.  595:  South  Hutchinson  v. 
Bowman,  63  Kans.  872,  66  Pac. 
1035:  Mutual  Benefit  &c.  Ins.  Co. 
v.  Elizabeth,  42  N.  J.  L.  235;  State 
V.  Columbia,  12  S.  Car.  370:  Chi- 
cago &c.  R.  Co.  V.  Commissioners, 
49  Kans.  399,  30  Pac.  456;  Lane  v. 
Embden.  72  Maine  354;  Dodge  v. 
Platte  Co.,  16  Hun  (N.  Y.)  285: 
Gould  v.  Sterling,  23  N.  Y.  456: 
Kerr    v.    Cnrry.    105     Pa.    St.    282; 


Clark  V.  Janesville,  10  Wis.  136; 
Sauerhering  v.  Iron  Ridge  &c.  R. 
Co.,  25  Wis.  447.  But  see  Cagvvin 
V.  Hancock.  84  X.  Y.  532.  See 
generally  Lindsey  v.  Rottaken,  Z2 
Ark.  619;  Gaddis  v.  Richland  Co., 
92  111.  119:  Lippincott  v.  Pana,  92 
III.  24:  State  v.  School  Dist.,  10 
Xebr.  544.  7  X.  W.  315;  State  v. 
Commissioners.  2,7  Ohio  St.  526; 
Shelby  Co.  v.  Jarnagin  fTenn.),  16 
S.  W.  1040. 

"Andes  V.  Ely,  158  U.  S.  312. 
15  Sup.  Ct.  954,  39  L.  ed.  996.  It 
was  said  in  the  opinion  in  the  case 
cited.  "But  further,  in  view  of  the 
recitals  on  the  bonds,  are  these 
questions  open  for  inquiry]"  Ample 
authority  was  given  by  the  stat- 
utes of  the  state  referred  to. 
Whether  the  various  steps  were 
taken,  which,  in  this  particular  case, 
justified  the  issue  of  the  bonds, 
was  a  question  of  fact:  and  when 
the  bonds,  on  their  face,  recite  that 
those  steps  have  been  taken,  it  is 
the  settled  rule  of  this  court  that 
in  an  action  brought  by  a  bona  fide 
holder,  the  municipality  is  estopped 
from  showing  the  contrary.  See 
the  multitude  of  cases  commencing 
with  Knox  County,  Indiana,  v.  As- 
pinwall.  21  How.  (U.  S.)  539.  16 
L.  ed.  208,  and  ending  with  Citi- 
zens' Sav.  &c.  Assn.  v.  Perry  Coun- 
ty. 156  U.  S.  692,  15  Sup.  Ct.  547. 
39  L.  ed.  585. 


§1098 


RAILROADS 


534 


ence  of  the  railroad  company."^  In  the  case  referred  to  the  court 
carried  the  doctrine  of  estoppel  very  far,  holding  that  the  mu- 
nicipality was  estopped,  although  the  bonds  were  signed  by  com- 
missioners appointed  by  the  county  judge  and  not  by  the  regular 
municipal  officers."^  We  cannot  escape  the  conclusion  that  the 
case  referred  to  is  an  extreme  one,  and  that  its  doctrine  should 
be  limited  rather  than  extended.  It  seems  to  us  that,  where  the 
statute  provides  that  a  municipality  shall  be  represented  by 
officers  selected  by  its  electors,  a  county  judge  has  no  authority 
to  appoint  agents  to  execute  negotiable  bonds  in  its  behalf.     It 


'**  In  the  case  referred  to  in  the 
preceding  note  the  court  cited, 
upon  the  point  that  a  party  con- 
tracting with  a  corporation  is 
estopped  to  aver  that  it  is  not  a 
corporation  de  jure,  the  cases  of 
Leavenworth  County  v.  Barnes,  94 
U.  S.  70,  24  L.  ed.  63;  Douglas 
County  V.  Bolles,  94  U.  S.  104,  24 
L.  ed.  46;  Casey  v.  Galli,  94  U.  S. 
673,  24  L.  ed.  168;  Chubb  v.  Upton, 
95  U.  S.  665,  24  L.  ed.  523.  See 
also  Municipal  Trust  Co.  v.  John- 
son City,  116  Fed.  458.  As  to  the 
effect  of  legislative  recognition,  the 
court  cited  Comanche  County  v. 
Lewis.  133  U.  S.  198,  10  Sup.  Ct. 
286.  33  L.  ed.  604;  State  v.  Com- 
missioners, 12  Kans.  426;  State  v. 
Hamilton,  40  Kans.  323.  19  Pac. 
723.  See  also  Macon  County  v. 
Shores,  97  U.  S.  272.  276.  24  L.  ed. 
889;  Dallas  Co.  v.  Huidekoper,  154 
U.  S.  655,  14  Sup.  Ct.  1190,  25  L.  ed. 
974;  Smith  v.  Clark  Co.,  54  Mo.  58. 

"Andes  v.  Ely,  158  U.  S.  312,  15 
Sup.  Ct.  954,  39  L.  ed.  996.  It  was 
said  in  the  opinion  that.  "It  may 
be  said  that  those  decisions  are  not 
wholly  in  point,  inasmuch  as  these 
bonds  were  signed,  not  by  regular 
officers,  but  by  commissioners  spe- 
cially appointed,  and  that,  before  a 


rccit.'il  made  by  them  can  be  held 
to  conclude  the  town,  it  must  ap- 
pear that  they  were  duly  appoint- 
ed, and  thus  had  authority  to  act. 
Doubtless  this  distinction  is  not 
without  significance.  Yet  they  were 
acting  commissioners,  and  their  au- 
thority was  recognized,  for  each 
bond  was  registered  in  the  office 
of  the  county  clerk  and  attested  by 
the  signature  of  the  county  clerk 
with  the  seal  of  the  county;  and  if 
we  go  back  of  that  to  the  records 
of  the  county  judge — the  appoint- 
ing power — there  appears  a  sepa- 
rate order  in  due  form,  appointing 
them  commissioners,  which  order 
recites  a  prior  adjudication  of  all 
the  essential  facts.  Giving  full 
force  to  the  distinction  which  ex- 
ists between  the  action  of  general 
and  special  officers,  there  must  be 
even  in  respect  to  the  latter,  some 
point  in  the  line  of  inquiry,  back 
of  which  a  party  dealing  in  bonds 
of  a  municipality  is  not  bound  to 
'go  in  his  investigations  as  to  their 
authority  to  represent  the  munici- 
pality, and  that  point,  it  would 
seem,  was  reached  when  there  is 
found  an  appointment,  in  due  form, 
made  by  the  appointing  tribunal 
named  in  the  statute." 


535 


MUNICIPAL  All)  BONDS 


§1098 


may.  perhaps,  be  true  that,  if  the  municipality  secures  the  benefit 
of  the  bonds  in  tangible  property  or  money,  it  should  be  held 
liable  therefor,  but  we  cannot  believe  that  the  bonds  can  be  con- 
sidered as  the  obligations  of  the  pulilic  corporation,  unless  ex- 
ecuted by  the  officers  constituted  by  law  the  representatives  of 
the  public  corporation.  If  there  is  power  to  appoint  corporate 
agents,  and  to  delegate  to  them  authority  to  execute  negotiable 
bonds  in  behalf  of  the  municipality,  then  it  may  well  be  held  that 
bonds  executed  by  such  agents  are  the  obligations  of  the  muni- 
cipality. It  is  held  that  a  munici])ality  is  estopped  to  dispute  its 
liability  upon  bonds  in  the  hands  of  bona  fide  holders,  upon  the 
ground  that  the  election  authorizing  their  issue  was  not  properly 
conducted, ^^'  or  that  the  persons  giving  their  written  assent  did 
not  constitute  two-thirds  of  the  resident  taxpayers,"  or  that  the 
required  proportion  of  the  voters  had  not  signed  the  necessary 
petition.-'-  or  that  the  amount  of  lionds  issued  was  a  greater  per 
cent,  of  the  taxable  valuation  of  the  municipality  than  it  was  em- 
powered to  issue,^^  or  that  the  proper  recommendation   of  the 


s**  Knox  County,  Indiana,  v.  As- 
pinwall,  21  How.  (U.  S.)  539,  16 
L.  ed.  208;  Mercer  County  v.  Hack- 
et,  1  Wall.  (U.  S.)  83,  17  L.  ed. 
548;  Supervisors  v.  Schenck,  5 
Wall.  (U.  S.)  m,  18  L.  ed.  556; 
Lynde  v.  The  County,  16  Wall. 
(U.  S.)  6,  21  L.  ed.  272;  Coloma  v. 
Eaves,  92  U.  S.  484,  23  L.  ed.  579; 
Leavenworth  County  v.  Barnes,  94 
U.  S.  70,  24  L.  ed.  63;  Cass  County 
V.  Johnston,  95  U.  S.  360,  24  L.  ed. 
416;  Hackett  v.  Ottawa,  99  U.  S. 
86,  25  L.  ed.  363;  Anthony  v.  Jas- 
per County,  101  U.  S.  693,  25  L.  ed. 
1005;  Toledo  Northern  Bank  v. 
Porter  Tp.,  110  U.  S.  608.  4  Sup. 
Ct.  254,  28  L.  ed.  258;  Webb  v. 
Cdmmissioners  of  Heme  Bay,  L. 
R.  5  Q.  B.  642.  A  recital  in  a  bond 
issued  in  payment  of  a  subscrip- 
tion to  railway  stock,  that  it  is 
authorized  by  a  certain  statute,  will 


not  estop  the  municipal  corpora- 
tion from  asserting  that  the  issue 
was  not  authorized  by  a  proper 
vote,  as  required  by  law.  Carroll 
County  V.  Smith.  Ill  U.  S.  556, 
4  Sup.  Ct.  539,  28  L.  ed.  517.  But 
see  Kno.x  County,  Indiana,  v.  As- 
pinwall,  21  How.  (U.  S.)  539,  16 
L.  ed.  208. 

81  Venice  v.  Murdock,  92  U.  S. 
494,  23  L.  ed.  583. 

82  Bissell  V.  JefTersonville,  24 
How.  (U.  S.)  287,  16  L.  ed.  664. 

83  Marcy  v.  Oswego  Tp.,  92  U.  S. 
637,  23  L.  ed.  748;  Humboldt  Tp. 
V.  Long,  92  U.  S.  642,  23  L.  ed. 
752;  New  Providence  v.  Halsey,  117 
U.  S.  336,  6  Sup.  Ct.  764,  29  L.  cd. 
904;  ChafYee  County  v.  Potter.  142 
U.  S.  355.  12  Sup.  Ct.  216,  35  L.  ed. 
1040;  Colcr  v.  Board  of  Commis- 
sioners, 6  N.  .Mex.  88.  27  Pac.  619. 
But  where  the  amount  to  be  issued 


§  1098 


RAILROADS 


536 


grand  jury  as  to  the  amount  of  bonds  to  be  issued  was  not  had,^* 
where  the  l)onds.  as  issued,  contained  a  recital  that  such  pre- 
requisite conditions  had  been  observed.-'  It  has  been  held  that, 
where  the  bonds  contained  a  recital  that  they  had  been  issued  in 
pursuance  of  a  subscription  to  the  capital  stock  of  a  railroad  com- 
pany, made  under  the  authority  of  a  certain  statute,  the  corpora- 
tion was  estopped  from  setting  up  the  fact  that  the  subscription 
was  made  after  the  authority  to  make  it  had  expired,  as  a  defense 


was  limited  to  a  certain  fixed  sum, 
bonds  containing  no  recitals,  issued 
in  excess  of  that  sum,  were  held 
void  for  lack  of  power  to  issue 
them,  even  in  the  hands  of  bona 
fide  holders.  Daviess  County  v. 
Dickinson,  117  U.  S.  657,  6  Sup.  Ct. 
897,  29  L.  ed.  1026;  Merchants' 
Bank  v.  Ber.e:en  County,  115  U.  S. 
384,  29   L.  cd.  430. 

81  Mercer  County  v.  Hacket,  1 
Wall."  (U.  S.)  83,  17  L.  ed.  548. 

85  Toledo  Northern  Bank  v.  Por- 
ter Tp.,  110  U.  S.  608,  4  Sup.  Ct. 
254,  28  L.  ed.  258;  Ottawa  v.  Na- 
tional Bank.  105  U.  S.  342,  26  L.  ed. 
1127;  Menasha  v.  Hazard,  102  U.S. 
81,  26  L.  cd.  85;  Foote  v.  Pike 
County,  101  U.  S.  688,  note.  25  L. 
ed.  972;  Douglass  v.  Pike  Co.,  101 
U.  S.  677.  25  L.  ed.  968:  Pompton 
V.  Cooper  Union,  101  U.  S.  196,  25 
T..  ed.  803:  Roberts  v.  Bolles,  101 
U.  S.  119,  25  L.  ed.  880;  Anthony 
V.  Jasper  County,  101  U.  S.  693,  25 
L.  ed.  1005;  Lyons  v.  Munson,  99 
U.  S.  684,  25  L.  ed.  451;  Block  v. 
Commissioners,  99  U.  S.  686,  25 
L.  ed.  491:  Orleans  v.  Piatt,  99 
U.  S.  676,  25  L.  ed.  404:  Wilson  v. 
Salamanca,  99  U.  S.  499,  25  L.  ed. 
330;  Supervisors  v.  Galbraith,  99 
U.  S.  214,  25  L.  ed.  410;  Hackett 
V.  Ottawa,  99  U.  S.  86,  25  L.  ed. 
363:    Daviess    County   v.    Huideko- 


pcr,  98  U.  S.  98,  25  L.  ed.  112; 
Macon  County  v.  Shores,  97  U.  S. 
272.  279,  24  L.  cd.  889;  Warren 
County  V.  Marcy,  97  U.  S.  96,  24 
L.  ed.  977;  San  Antonio  v.  Me- 
hafify,  96  U.  S.  312,  24  L.  ed.  816; 
Rock  Creek  v.  Strong,  96  U.  S.  271,- 
24  L.  ed.  815;  Cass  County  v. 
Johnston,  95  U.  S.  360,  24  L.  ed. 
416:  Douglas  County  v.  Bolles,  94 
U.  S.  104,  24  L.  ed.  46;  Randolph 
County  V.  Post,  93  U.  S.  502,  52 
L.  cd.  957;  Venice  v.  Murdock,  92 
U.  S.  494,  23  L.  ed.  583 ;  Coloma  v. 
Eaves,  92  U.  S.  484,  23  L.  ed.  579; 
Pendleton  County  v.  Amy,  13  Wall. 
(U.  S.)  297,  20  L.  ed.  579;  St.  Jo- 
seph 'Pp.  V.  Rogers,  16  Wall.  (U. 
S.)  644,  21  L.  ed.  328;  Kenicott  v. 
Supervisors,  16  Wall.  (U.  S.)  452, 
21  L.  ed.  319;  Lynde  v.  The  Coun- 
ty. 16  Wall.  (U.  S.)  6,  21  L.  ed. 
272:  Grand  Chute  v.  Winegar,  15 
Wall.  (U.  S.)  355,  21  L.  ed.  170; 
Lexington  v.  Butler,  14  Wall.  (U. 
S.)  282,  20  L.  ed.  809;  Supervisors 
V.  Schenck,  5  Wall.  (U.  S.)  772,  18 
L.  cd.  556;  Cincinnati  v.  Morgan, 
3  Wall.  (U.  S.)  275,  18  L.  ed.  146; 
Afcyer  v.  Muscatine,  1  Wall.  (U. 
S.)  384,  393.  17  L.  cd.  564:  Van 
Hostrup  V.  Madison,  1  Wall.  (U. 
S.)  291,  17  L.  ed.  538:  Mercer  Co. 
V.  llacket,  1  Wall.  (U.  S.)  83,  17 
L.  ed.  548;  Bissell  v.  Jeffersonville, 


>:37 


ML'NICIPAL  AID   liOXDS 


§  1098 


iG  a  suit  by  a  l)ona  lide  holder  of  such  bonds.***'  In  the  case  re- 
ferred to  three  of  the  members  of  the  court  dissented,  and,  as  it 
seems  to  us,  with  good  reason,  for  we  believe  that  the  question 
was  one  of  power  to  be  determined  by  an  examination  of  public 
laws.  Bonds  w'ere  held  valid  in  a  case  where  the  subscription 
\\as  made  upon  conditions  which  the  municipality  had  power  to 
impose,  and  bonds  were  issued  reciting  that  such  conditions  had 
been  performed,  when,  in  fact,  they  had  not;  and  it  was  held  that 
the  application  of  the  rule  was  not  affected  1)y  the  fact  that  the 
statute  declared  that  such  bonds  should  not  be  binding  until 
after  the  performance  of  the  prescribed  conditions.^"  And  the 
purchaser  is  held  not  to  be  charged  with  constructive  notice  of 
anything  in  the  i)ublic  records  of  the  municipality,  which  would 
show  that  such  recitals  are  really  false. ^*  But  where  the  statute 
makes  an  accessible  public  record  the  test,  a  recital  contradicting 
it  is  held  not  to  constitute  an  estoppel. ^^ 


24  H.nv.  (U.  S.)  287,  16  L.  ed.  664; 
Knox  County,  Indiana,  v.  Aspin- 
wall.  21  IIow.  (U.  S.)  539,  16  L.  ed. 
208;  Nicolay  v.  St.  Clair  Co.,  3 
Dill.  (U.  S.)  163;  .M.vgatt  v.  Green 
Bay,  1  Biss.  (U.  S.)  292;  Moran  v. 
Miami  County,  2  Black  (U.  S.)  722. 
17  L.  ed.  342;  Woods  v.  Lawrence 
County,  1  Black  (U.  S.)  386,  17 
L.  ed.  122;  Third  Nat.  Bank  v. 
Seneca  Falls,  15  Fed.  783;  Cary  v. 
Ottawa,  8  Fed.  199;  Shorter  v. 
Rome,  52  Ga.  621;  Wilkinson  v. 
Peru,  61  Ind.  1 ;  St.  Louis  v.  Shields, 
62  Mo.  247;  Smith  v.  County  of 
Clark,  54  Mo.  58,  81;  Bargate  v. 
Shortridge,  5  H.  L.  Cas.  297:  Im- 
perial Land  Co.,  In  re,  L.  R.  11 
Eq.  478;  Webb  v.  Commissioners 
of  Heme  Bay,  L.  R.  5  Q.  B.  642; 
Royal  British  Bank  v.  Turquand, 
6  El.   &  Bl.  325. 

86  ]\Ioultrie  County  v.  Rocking- 
ham Ten-Cent  Sav.  Bank,  92  U.  S. 
631,  23  L.  ed.  631.     The  court  di- 


criminatt'-;  the  case  before  it  from 
that  of  Concord  v.  Portsmouth 
Savings  Bank,  92  U.  S.  625,  23  L. 
ed.  628,  but  it  seems  to  us  that  the 
principle  is  the  same  in  both  cases. 

s"  Insurance  Co.  v.  Bruce,  105  U. 
S.  328,  28  L.  ed.  1121. 

ss  Marcy  v.  Oswego,  92  U.  S. 
637,  23  L.  ed.  748;  Humboldt  Tp. 
V.  Long,  92  U.  S.  642,  23  L.  ed.  752. 
See  also  .Stanly  County  v.  Coler, 
190  U.  S.  437,  23  Sup.  Ct.  811,  47 
L.  ed.  1126.  Compare  Truman  v. 
Inhabitants  of  Harmonj^  205  Fed. 
549.  reversed  in  212  Fed.  4. 

89Sutliff  V.  Lake  County,  147  U. 
S.  230,  13  Sup.  Ct.  318,  37  L.  ed. 
145;  Di.xon  County  v.  Field.  Ill 
U.  S.  83,  4  Sup.  Ct.  315,  28  L.  ed. 
360;  Gunnison  County  v.  E.  H. 
Rollins  &  Sons,  173  U.  S.  255.  19 
Sup.  Ct.  390,  43  L.  ed.  689.  See 
also  Sntro  v.  Rhodes,  92  Cal.  117, 
28  Pac.  98;  Evans  v.  McFarland, 
186    M.I.   703,  85   S.   W.  873.   citing 


§  1099 


RAILROADS 


538 


§  1099  (899).  Recitals  in  bonds  not  always  conclusive. — As 
we  have  elsewhere  seen,  recitals  in  bonds  or  statements  in  cer- 
tificates of  officers  are  not  conclusive  where  the  municipality  has 
no  power  to  issue  bonds,  but  there  are  also  other  cases  in  which 
they  are  held  not  to  l)e  effective  as  an  estoppel.  Where  there  is 
notice  of  defects,  and  no  change  of  position,  made  in  good  faith, 
and  no  laches  or  acquiescence,  there  can  be  no  estoppel,  notwith- 
standing the  recitals  in  the  bonds.  Where  the  enabling  act  ex- 
pressly requires  that  the  bonds  shall  be  registered,  and  provides 
that,  if  not  registered,  they  shall  be  void,  the  certificate  of  the 
officer  is  held  not  to  estop  the  municipality  from  showing  that 
the  provisions  of  the  enabling  act  were  not  complied  with.'"^  In 
other  cases  bonds  have  been  held  void  and  the  doctrine  of 
estoppel  denied  application.''^ 


Thornburg^  v.  School  Dist.,  175  Mo. 
12,  75  S.  W.  81;  Gardner  v.  School 
Dist.,  34  Okla.  716,  126  Pac.  1018; 
National  L.  Ins.  Co.  v.  Mead,  13 
S.  Dak.  2,7,  342,  82  N.  W.  78,  48 
L.  R.  A.  785,  79  Am.  St.  876;  Citi- 
zens' Bank  v.  Terrell,  78  Tex.  450, 
14  S.  W.  1003.  So,  where  the  con- 
stitution contains  an  absolute  limi- 
tation or  prohibition  it  is  held  that 
a  ministerial  board  or  ofificer  can 
not  determine  the  matter  to  the 
contrary  so  as  to  create  an  estop- 
pel by  recitals.  Hedges  v.  Dixon 
County.  ISO  U.  S.  182.  14  Sup.  Ct. 
71,  i7  L.  ed.  1044;  Lake  County  v. 
Dudley,  173  U.  S.  243,  19  Sup.  Ct. 
398,  43  L  .ed.  684;  Shaw  v.  Inde- 
pendent School  Dist..  77  Fed.  277. 
See  also  First  Nat.  Bank  v.  Dis- 
trict Tp.,  86  Iowa  330,  53  N.  W. 
.301.  41    Am.   St.  489. 

■'"  In  German  Savings  Bank  v. 
Franklin  County,  128  U.  S.  526,  9 
Sup.  Ct.  159,  32  L.  ed.  519.  the  case 
was  distinguished  from  Lewis  v. 
Commissioners,  105  \J.  S.  739,  26 
L.  ed.  993,  and   it  was   said.    "The 


registration  of  the  bonds  by  the 
state  auditor  has  nothing  to  do 
with  any  of  the  terms  or  condi- 
tions on  which  the  stock  was  voted 
and  subscribed.  Neither  the  regis- 
tration nor  the  certificate  of  reg- 
istry covers  or  certifies  any  fact  as 
to  compliance  with  the  conditions 
prescribed  in  the  vote,  on  which 
alone  the  bonds  were  to  be  issued. 
The  recital  in  the  bonds  does  not 
contain  any  reference  to  the  act  of 
April  16,  1869,  or  certify  any  com- 
pliance with  the  provisions  of  that 
act;  and  the  certificate  of  registry 
merely  certifies  that  the  bond  has 
been  registered  in  the  auditor's  of- 
fice pursuant  to  the  provisions  of 
the  act  of  April  16,  1869.  The  stat- 
ute does  not  require  that  the  au- 
ditor shall  determine  or  certify  that 
the  bonds  have  been  regularly  or 
legally  issued." 

91  Randolph  County  v.  Post.  93 
U.  S.  502,  23  L.  ed.  957;  Concord 
v.  Robinson.  121  U.  S.  165,  7  Sup. 
Ct.  937.  30  L.  ed.  885.  In  German 
Savings   Bank  v.   Franklin   County, 


:^39 


MrXICIPAIi   AID   ISOXDS 


§1100 


§  1100  (900).  Official  certificates  —  Conclusiveness  of.  — 
\\'here  the  L'lw  imposes  u])()n  a  miinicii)al  officer  the  duty  of  cer- 
tifyinii;'  that  certain  facts  exist,  or  that  certain  proceedings  have 
been  had,  or  invests  him  with  authority  to  make  such  a  certificate, 
the  general  rule  is  that,  as  to  bona  fide  ])urchasers  of  bonds,  the 
certificate  is  conclusive.'-'-  In  order  that  a  certificate  shall  be 
conclusive  in  itself,  it  is  essential  that  it  should  be  made  by  an 
officer  or  agent  in\ested  with  authority,  since  the  certificate  of  a 
jierson  having  no  authorit}'  whatex'er  to  make  such  a  certificate 
is,  of  itself,  of  no  force  or  eff^ect.-''*  It  is  important  to  bear  in 
mind,  in  ap]:)lying  the  rule  stated,  that  it  applies  only  in  cases  of 
];ersons  who  acquire  rights  without  notice  of  defects  in  the  pro- 
ceedings. It  is  evident  that  it  cannot  apply  in  any  case  where 
there  is  an  entire  absence  of  power  to  issue  bonds.'''*  \\'here  there 


128  U.  S.  526,  9  Sup.  Ct.  739,  22 
I.,  ed.  519,  the  cases  of  Insurance 
Co.  V.  Bruce,  105  U.  S.  328,  26  L. 
ed.  1121  r  Pana  v.  Bowler,  107  U.S. 
529,  2  Sup.  Ct.  704,  27  L.  ed.  424, 
.'uid  Oregon  v.  Jennings,  119  U.  S. 
74,  7  Sup.  Ct.  124,  30  L.  ed.  323, 
rirc  reviewed  and  their  effect  de- 
fined. See  also  generally  as  to 
effect  of  recitals,  notes  in  L.  R.  A. 
1915A,  904,  910:  1917B,  1019. 

»2Gelpcke  v.  Dubuque.  1  Wall. 
(U.  S.)  175.  17  L.  ed.  520:  Block 
v.  Commissioners,  99  U.  S.  686,  25 
L.  ed.  491;  Hannibal  v.  Fauntleroy, 
105  U.  S.  408,  26  L.  ed.  1103:  Hum- 
boldt Tp.  V.  Long,  92  U.  S.  642, 
23  L.  ed.  752:  Hannibal  &c.  R.  Co. 
V.  Marion  Co.,  36  Mo.  294:  Ontario 
v.  Hill,  99  N.  Y.  324:  Bank  of  Rome 
V.  Rome,  19  N.  Y.  20,  75  Am.  Dec. 
272:  State  v.  Hancock  Co.,  12  Ohio 
St.  596:  San  .Xntonio  v.  Lane,  32 
Tex.  405.  See  generally  Wilson  v. 
Salamanca.  99  U.  S.  499.  25  L.  ed. 
330:  Davis  v.  Kendallville.  5  Biss. 
(U.  S.)  280:  Nicolay  v.  St.  Clair 
Co.,  3  Dill.  (U.  S.)  163:  Sherman 
County  V.   Simons,    109   U.   S.   735, 


27  L.  cd.  1093:  Pollard  v.  Pleasant 
Hill.  3  Dill.  (U.  S.)  195;  Van  Host- 
rup  V.  :\Iadison,  1  Wall.  (U.  S.) 
291,  17  L.  ed.  538.  See  also  Inde- 
pendent School  Dist.  V.  Rew,  HI 
Fed.  1,  8,  55  L.  R.  A.  364,  where 
many  other  authorities  are  cited, 
and  note  to  Town  of  Aurora  v. 
Gates  in  L.  R.  A.  1915A,  910,  al- 
readj^  referred  to  in  a  preceding 
section. 

93  Dixon  County  v.  Field,  HI  U. 
S.  83,  4  Sup.  Ct.  315,  28  L.  ed.  360; 
Anthou}'  V.  Jasper  Count}',  101  U. 
S.  693,  25  L.  ed.  1005;  Daviess 
County  V.  Dickinson,  117  U.  S.  657, 
6  Sup.  Ct.  897,  29  L.  ed.  1026;  In- 
habitants of  Harmony  v.  Truman, 
212  Fed.  4;  Jefferson  Co.  v.  Lewis, 
20  Fla.  980;  State  v.  Commission- 
ers. 11  Ohio  St.  183.  See  also 
Brown  v.  Ingalls  Tp..  81  Fed.  485: 
Spitzer  v.  Blanchard,  82  Mich.  234. 

46  N.  W.  400;  Wells  v.  Supervisors, 
102  U.  S.  625,  26  L.  ed.  122. 

9*  Allen  V.  Louisiana,  103  U.  S.  80. 
26  L.  ed.  318;  Wilkes  County  v. 
Coler.  190  U.  S.  107.  2i  Sup.  Ct.  738. 

47  L.  ed.  971;  Ogden  v.  Daviess  Co., 


§1101  RAILROADS  540 

is  power  to  issue  Ijonds  the  rule  is  of  general  application,  since  a 
purchaser  of  bonds  is  not  bound  to  examine  the  municipal  records 
in  cases  where  the  constitution  or  statute  does  not  make  them 
the  test  and  the  recitals  of  the  bonds  show  a  compliance  with  the 
law,  or  the  certificate  of  an  authorized  officer  or  ai^ent  recites  that 
the  steps  required  b}'  law  have  been  taken. 

§  1101  (901).  Recitals  in  bonds  to  constitute  an  estoppel  must 
be  of  facts. — To  constitute  an  estoppel  it  would  seem  that  the 
recitals  in  bonds  must  be  of  matters  of  fact.  Thus  it  has  been 
held  that  a  recital  which  amounts  to  no  more  than  a  statement, 
"that  a  subscription  to  the  capital  stock  of  the  company  was 
authorized  by  the  statutes  mentioned,  and  that  the  sum  men- 
tioned in  the  bond  w^as  part  of  it,"  will  not  constitute  an 
estoppel."^  It  is  cpiite  difficult  to  reconcile  the  statements  found 
in  the  opinions  delivered  in  the  many  cases  upon  this  subject. 
It  may,  however,  be  said  that,  to  be  sufficient  to  work  an  estoppel, 
the  recitals  must  always  be  of  matters  of  fact,  but  what  shall  be 
considered  matters  of  fact  it  is  not  easy  to  determine  with  ac- 
curacy or  precision.  In  one  of  the  cases  it  w'as  held  that 
estoppels  can  result  only  from  "matters  of  fact,  which  the 
corporate  officers  have  authority  to  certify,"  but  it  was  also  held 
that  it  is  "not  necessary  that  the  recital  should  enumerate  each 
particular  fact  essential  to  the  existence  of  the  obligation."     It 

102  U.  S.  634.  26   L.  ed.  263:  Sher-  mann   v.   Placerville,    147    Cal.    162, 

rarcl  v.  Lafayette  dx,  3  Dill.  (U.  S.)  81    Pac.  537;  Treadway  v.   Schnau- 

236:  Lippincott  v.   I'ana,  92  111.  24;  ber,    1    Dak.    236,    46    N.    W.    464; 

People  V.  Jackson  Co.,  92  111.  441;  Ryan    v.    Lynch,   68   111.    160;    Wil- 

Chicago  &c.  R.  Co.  v.  Aurora,  99  111.  Hams  v.  Roberts,  88  111.  11;  People 

205;  State  v.  School  Dist.,  10  Nebr.  v.   Oldtown,   88   111.  202;   Plainview 

544,  7  N.  W.  315;  Clay  v.  Hawkins  v.    Winona    &c.    R.    Co.,   36    Minn. 

Co.,   5    Lea    (Tcnn.)    137;    Johnson  505,  32   N.  W.  745;   Harrington  v. 

City  V.  Charleston  &c.  R.  Co.,  100  Plainview,  27   Minn.  224,  6  N.  W. 

Tenn.   138,  44  S.  W.  670;   Phillips  777:  Cagwin  v.  Hancock,  84  N.  Y. 

V.  Albany,  28  Wis.  340.     See   Lin-  532. 

coin  V.  Iron  Co.,  103  U.  S.  412,  26  9^  Carroll    County   v.    Smith,    111 

L.  ed.  518;  Cromwell  v.  Sac  Conn-  U.  S.  566,  4  Sup.  Ct.  539,  28  L.  ed. 

ty,  96  U.  S.  51,  24  L.  ed.  681;  State  517. 
V.  Montgomery,  74  .Ala.  226;  Wich- 


541  ML^NICU'AL  AID  JJOXDS  §  1102 

was  said  in  the  case  referred  to  that,  "A  general  statement  that 
the  bonds  have  been  issued  in  conformity  with  the  law  will 
suffice  so  as  to  embrace  every  fact  which  the  officers  making  the 
statement  are  authorized  to  determine  and  certify."®^  And  in 
many  cases  a  recital  that  the  bonds  are  issued  in  pursuance  of 
the  statutory  authority  or  in  conformity  with  law  has  been  held 
to  have  the  effect  indicated  and  to  constitute  an  estoppel.^" 

§  1102  (902).  No  estoppel  where  the  officer  ordering  bonds 
to  issue  had  no  jurisdiction. — It  has  been  held  that,  where  it  ap- 
pears that  the  officers  directing  bonds  to  issue  had  no  jurisdic- 
tion of  the  subject,  the  bonds  are  void  even  in  the  hands  of  a 
bona  fide  liolder.^^     It  is  not  easy  to  reconcile  some  of  the  broad 

96  Dixon  County  v.  Field,  111  U.  L.   ed.  977;Pana   v   Bowler,   107  U. 

S.  83,  4  Sup.  Ct.  315,  28  L.  ed.  360.  S.  529,  2  Sup.  Ct.  704,  27  L.  ed.  424; 

See    also    Municipal    Trust    Co.    v.  Quincy    &c.    R.    Co.   v,    Morris,    84 

Johnson  City,  116  Fed.  458;  White  111.   410.     Ante,   §   1100,   authorities 

V.  Chatfield,  116  Minn.  371,  133  N.  cited  in  notes. 

W.    962;    and    authorities    cited    in  ^~  Evansville   v.    Dennett,   161    U. 

next  following  note:  The  statement  S.  434,    16  Sup.   Ct.   613,  40   L.   ed. 

copied  in  the  text  asserts  the  rule  760;    and    Stanly   County   v.    Coler, 

as    generally   enforcd,   but   there    is  190   U.   S.  437,   23   Sup.   Ct.   811,   47 

some    conflict    in    the    cases    as    to  L.   ed.    1126,   are   among   the   latest 

the    application    of   the    rule.      Van  decisions   to  such  effect.     See  also 

Hostrup  V.   Madison   City,   1   Wall.  Hayden    v.    Town    of    Aurora,    57 

(U.  S.)  291,  17  L.  el.  538;  Hayes  v.  Colo.  389,    142   Pac.    183;   Town   of 

Holly  Springs,  114  U.  S.  120,  5  Sup.  Aurora   v.   Gates,  208   Fed.   101,   L. 

Ct.    785,    29    L.    ed.    81;    Ogden    v.  R.  A.  1915A,  910. 
Daviess  County,   102  U.   S.  634,  26  ««  Rich  v.   Mentz  Tp.,   134   U.    S. 

L.  ed.  263:   Knox   County  of  Indi-  632,  10  Sup.  Ct.  610,  33  L.  ed.  1074; 

una,  V.  Aspinwall,  21  How.  (U.  S.)  Cowdrey  v.  Caneadea,  16  Fed.  532; 

539.  16  L.  ed.  208;  Moultrie  County  Rich    v.    Mentz.    19    Fed.    725.     See 

V.    Rockingham    Ten-Cent    Savings  also  People  v.  Smith,  45  N.  V.  772: 

Rank,  92  U.  S.  631,  23  D.  ed.  631:  Mentz  v.   Cook,  108   X.   V.   504.   15 

Marcy  v.  Oswego  Tp.,  92  U.  S.  637,  X.  K.  541;   People  v.  Smith,  55   X. 

23  L.  ed.  748;  Coloma  v.  Eaves,  92  Y.  135;  Wellsborough  v.  New  York 

U.   S.   484,   23    L.   ed.   579;    School  .*v-c.  R.  Co.,  76  N.  Y.  182;  Metzger 

District   V.    Stone,    106    U.    S.    183,  v.  Attica  &c.  R.  Co.,  79  N.  Y.  171; 

1    Sup.    Ct.   84,  27  L.   ed.   90;    Clay  Hills    v.    Peekskill    &c.    Rank,    101 

County  v.  Society  for  Savings,  104  N.    Y.    490,    5    N.    E.    327.      In    the 

U.   S.   579,  26   L.   ed.  856;   Warren  first  case  cited,  the  court  declared 

County  v.   Marcy,  97  U,   S.   96,  24  that    it    was    bound    to    follow    the 


S  n03  RMLRdADS  542 

statements  made  in  the  opinions  s^iven  in  the  cases  referred  to.  bv 
the  federal  courts  of  original  jurisdiction,  with  some  of  the  state- 
ments in  other  cases,  1jut  the  conclusion  reached  is.  as  we  believe, 
unquestionably  correct.  \\'e  think  that  dealers  in  municipal 
l)onds  must  always  ascertain  that  the  power  to  execute  such 
bonds  has  been  conferred  upon  municipal  officers  who  assume  to 
issue  them,"''  and  that  the  rule  ])rotecting"  such  dealers  has  been 
in  some  instances  unjustly  extended.  It  is  known  to  every  one 
that  luunicipal  officers  exercise  limited  delegated  powers,^  and 
hence  there  is  reason  for  rec{uiring  persons  who  purchase  muni- 
cipal bonds  to  ascertain  that  the  authority  assumed  to  be  exer- 
cised has  been  conferred  by  a  valid  statute. 

§1103  (903).  Estoppel  otherwise  than  by  recital — Illustra- 
tive instances. — Estoppel  may  be  created  by  acts  which  make  it 
against  equity  and  good  conscience  to  permit  the  municipality  to 
deny  the  \alidity  of  the  ])onds.  It  is  impossible  to  lay  down  ac- 
curate general  rules,  for  cases  are  usually  to  be  determined  upon 
particular  facts.  We  refer  to  some  of  the  cases  upon  the  general 
subject.  It  has  been  held  that  the  levy  by  town  ofificers  of  taxes 
to  pay  interest  on  railroad  aid  bonds  does  not  of  itself  estop  tax- 
payers from  contesting  their  validity,-  but  on  this  point  there  is 
an  apparent,  if  not  actual,  conflict  of  authority.^     Payment  of 

decisions    of    the    state    court,    and  Rank,  102  Ind.  464,  470;  Lowell  &c. 

referred  to  the  cases  of  Meriwether  Bank      v.      Winchester,      8      Allen 

V.   Muhlenburg   County   Ct.,   120  U.  (INTass.)   109;  Dickinson  v.  Conway, 

S.   354,  357,  7   Sup.    Ct.    563,  30   L.  12    Allen    (Mass.)    487;    Benoit    v. 

ed.      653;      Claiborne      County      v.  Conway,     10     Allen     (Mass.)     528; 

Brooks,   111   U.  S.  400.  410.  4  Sup.  Railroad  Nat.  Bank  v.   Lowell,  109 

Ct.  489.  28  L.  cd.  470.  Mass.  214. 

"9  In  Cf)wdrey  v.  Caneadea,  16  -Citizens'  Sav.  &c.  Assn.  v.  To- 
Fed.  532.  the  court  said:  "Purchas-  peka.  20  Wall.  (U.  S.)  655,  22  L. 
ers  of  municipal  bonds,  executed  ed.  455;  Cherry  Creek  v.  Becker, 
by  agents,  must  ascertain  at  their  2  N.  Y.  S.  514,  50  Hun.  601;  Lip- 
peril  that  the  delegated  authority  pincott  v.  Pana,  92  III.  24.  See  also 
assumed  has  been  conferred."  See  Town  of  .Aurora  v.  Hayden,  23 
also  Gardner  v.  School  Dist.  34  Colo.  App.  1,  126  Foe.  1109;  Clarke 
Okla.  716,  126  Pac.  1018;  In  re  v.  Northampton,  120  Fed.  661. 
Manistee  Watch  Co.,  197  Fed.  455.  ^  Cass   County  v.   Gillett,  .100  U. 

1  Union  School  v.  First  National  S.  585,  25  L.  ed.  585;  Eminence  v. 


543 


MrXIClPAL  AID  BONDS 


§  1103 


interest  on  bonds  is  not  of  itself  necessarily  sufficient  to  create  an 
estoppel,  but  the  fact  that  the  county  has  paid  interest  on  such 
bonds  is  a  circumstance  to  be  considered  in  decidin<j  whether  the 
acts  of  the  municipality  work  an  estoppel  against  it.'  Where 
interest  has  been  paid  for  a  lonj>-  period  of  time  it  has  been  held 
that  it  will  estop  the  municipality  to  take  advantage  of  irregular- 
ities or  defects. •"'  Voting  as  a  stockholder  has  been  regarded  as 
sufficient  to  create  an  estoppel,"  but  there  is  authority  to  the  con- 
trary.'' It  has  been  held  that  substituting  bonds  for  those 
originally  issued  will  estop  the  municipality  from  setting  up  as  a 
defense  that  the  original  proceedings  were  defective  or  irregular.^ 


Crasser,  81  Ky.  52;  Moultrie  Coun- 
ty V.  Rockingham  Ten-Cent  Sav- 
ings Bank,  92  U.  S.  631.  See  also 
State  V.  Scott  County,  58  Kans.  491, 
49  Pac.  663;  Doty  v.  Garfield  Tp., 
89  Kans.  719,  133  Pac.  172;  Niland 
v.  Bouron,  193  N.  Y.  180.  85  N.  E. 
1012. 

*  Livingston  County  v.  Ports- 
mouth First  Nat.  Bank,  128  U.  S. 
102,  9  Sup.  Ct.  18.  32  L.  ed.  359; 
Moulton  V.  Evansville,  25  Fed.  382. 

^A  county  which  issued  bonds 
containing  a  recital  that  they  were 
issued  under  the  act,  delivered 
them  to  the  railroad  company  and 
paid  interest  on  them  for  fifteen 
years,  can  not  set  up  an  irregulari- 
ty in  the  election,  as  against  an 
innocent  purchaser  of  the  bonds. 
Nelson  v.  Haywood  Co.,  3  Pick. 
(Tenn.)  781,  11  S.  W.  885;  State  v. 
Anderson  Co.,  8  Bax.  (Tenn.)  249; 
Portsmouth  Savings  Bank  v. 
Springfield,  4  F'ed.  276;  Clay  Coun- 
ty V.  Society  for  Savings,  104  U.  S. 
579,  26  L.  ed.  856;  Atchison  Board 
of  Education  v.  DeKay.  148  U.  S. 
591,  13  Sup.  Ct.  706,  i7  L.  ed.  573; 
See  also  Colburn  v.  McDonald,  72 
Nebr.    431,    100    N.   W.   961;    Keith 


Co.  V.  Citizens'  (S:c.  Co.,  116  Fed. 
13;  Schmitz  v.  Zeh,  91  Minn.  290, 
97  N.  W.  1049.  1  Ann.  Cas.  322; 
Nelson  v.  Haywood  Co.,  87  Tenn. 
781.  11  S.  W.  885,  4  L.  R.  A.  648. 

6  Cass  County  v.  Gillett,  100  U. 
S.  585.  25  L.  ed.  585. 

"  Supervisors  v.  Paxton,  57  Miss. 
701. 

^  Jasper  County  v.  Ballou,  103 
U.  S.  745,  26  L.  ed.  423;  Coolidge 
V.  General  Hosp.  Soc,  9  Kans.  App. 
891,  58  Pac.  562.  See  Cause  v. 
Clarksville,  1  McCr.  (U.  S.)  78; 
]\larcy  v.  Oswego  Tp.,  92  U.  S. 
637,  23  L.  ed.  748;  Randolph  Coun- 
ty V.  Post,  93  U.  S.  502,  23  L.  ed. 
957;  Douglass  County  v.  Bolles,  94 
U.  S.  104,  24  L.  ed.  46;  Warren 
County  V.  Marcy,  97  U.  S.  96,  24 
L.  ed.  977;  Deyo  v.  Otoe  Co..  2,7 
Fed.  246;  Leavenworth  &c.  R.  Co. 
V.  Commissioners,  18  Kans.  169; 
Plattsmouth  v.  Fitzgerald,  10  Nebr. 
401,  6  N.  W.  470;  Solon  v.  Williams- 
burgh  &c.  Bank,  114  N.  Y.  122,  21 
N.  E.  168;  Hills  v.  Peekskill  &c. 
Bank,  101  N.  Y.  490.  5  N.  E.  327; 
Washington  &c.  R.  Co.  v.  Caze- 
nove.  83  Va.  744,  3  S.  E.  433. 


§  n():i  RAiT,RO.\ns  544 

It  is  to  be  noted,  however,  that  where  there  was  an  entire  absence 
of  power  to  issue  the  original  bonds,  and  no  curative  statute  or 
statute  authorizing  substitution,  there  can  be  no  effective  ex- 
change or  substitution  of  bonds. ^  Where  there  is  an  exchange  of 
l)onds  for  stock,  or  of  stock  for  bonds,  and  long  acquiescence,  an 
estoppel  arises. ^^  Where  there  has  been  no  change  of  position, 
and  no  acquiescence,  the  general  rule  is  that  there  can  l)e  no 
cst()i)i)el.'^  The  general  rule  is  that  taxpayers  who  stand  by,  and, 
without  ol)jection,  see  expenditures  of  money  made  upon  the 
faith  that  the  subscription  or  bonds  are  valid  and  enforceable, 
are  estopped  from  denying  their  validity,  and  we  can  see  no 
reason  why  this  general  doctrine  should  not  apply  to  the 
municipality.'-  The  tendency  of  the  decisions  is  to  extend  the 
principle  of  estoppel  for  the  protection  of  bona  fide  holders  of 
municipal  aid  bonds.  Circumstances  which,  in  ordinary  cases, 
would  hardly  be  regarded  as  sufficient  to  constitute  an  estoppel, 
are  often  held  to  create  an  estoppel  in  favor  of  bondholders.^'^ 

"Horton  v.  Thompson,  71  N.  Y.  Orleans.  44  La.  Ann.  748,  11  So. 
513:  ^IcKee  v.  Vernon  Co.,  3  Dill.  11.  and  44  La.  .Xnn.  728,  11  So.  78; 
(U.  S.)  210.  The  decision  in  the  Seattle  v.  Colnmbia  &c.  R.  Co.,  6 
first  of  the  cases  cited  is,  as  else-  Wasli.  379,  ZZ  Pac.  1048,  56  Am. 
where  shown,  of  doubtful  sound-  &  Enj;-.  R.  Cas.  618;  Spokane  &c. 
ncss  upon  some  of  the  questions  R.  Co.  v.  Spokane  Falls,  6  Wash, 
involved,  but  as  to  the  immediate  521,  Z2>  Pac.  1072;  Fort  Worth  City- 
point  to  which  it  is  here  cited  Co.  v.  Smith  Bridge  Co.,  151  U.  S. 
it  is  not  justly  subject  to  criticism.  294,  14  Sup.  Ct.  339,  38  L.  ed.  167, 

1"  Pendleton   County  v.  Amy,   13  44    Am.    &    Eng.    Corp.    Cas.    604; 

Wall.  (U.  S.)  297,  20  L.  ed.  579.  Ante,  §   1062. 

^1  Union    &c.    R.    Co.    v.    Merrick  i-'  Supervisors  v.  Schcnck,  5  Wall. 

Co.,  3  Dill.  (U.  S.)  359;  Union  &c.  fU.  S.)  772,  18  L.  ed.  556.     But  see 

R.   Co.   V.   Lincoln   Co.,   3   Dill.   (U.  Supervisors  v.   Cook,  38   III.  44,  87 

S.)    300;    Portland    &c.    R.    Co.    v.  Am.  Dec.  282;  Redd  v.  Henry  Co., 

Hartford,   58  Maine  23.  31   (Jrat.    (Va.)    695.     See  also  Ray 

12  Vickery  v.  Blair,  134  Ind.  554.  County  v.  Van  Sycle,  96  U.  S.  675, 

32  N.  E.  880;  Jones  v.   Cullen,  142  24   L.   ed.  800;   Whiting  v.    Potter, 

Ind.  335,  40  N.  E.  124;  Simpson  Co.  18   Blatchf.    (U.   S.)    165;   Luling  v. 

v.    Louisville    &c.    R.    Co.,    14    Ky.  Racine,  1   Diss.  (U.  S.)  314;  Beloit 

673,   19  S.  W.  665;   Planet  &c.   Co.  v.  Morgan,  7  Wall.  (U.  S.)  619,  19 

V.   St.   Louis   &c.    R.   Co.,   115   Mo.  L.  cd.  205;  New  Haven  &c.  R.  Co. 

613,  22   S.   W.   616.     See   generally  v.    Chatham,  42   Conn.   465;   Butler 

Xew    Orleans    &c.    R.    Co.   v.    New  \-.  l^urham,  27  111.  473;  ^ifcPherson 


545  :\nxiC'iPArj  aid  bonds  §  1104 

§1104  (904.)  Estoppel  by  retention  of  stock. — 'i'lic  doctrine 
of  some  of  the  cases  is  that,  if  the  stock  received  for  the  bonds 
is  retained  by  the  nuinicipaHty.  it  is  estopped  to  deny  the  validity 
of  the  bonds.  \\\-  incline  to  think  this  doctrine  of  doubtful 
soundness.  If  tliere  was  no  power  to  issue  the  l)onds,  then  it 
seems  clear  that  there  could  be  no  estoppel,  although  the  muni- 
cipaHty  might  be  lialde  for  the  \alue  of  the  stock.  We  cannot 
assent  to  the  broad  doctrine  that,  so  long  as  the  municipality 
retains  the  stock  which  it  received  in  exchange  for  bonds,  it  will 
l:!e  estopped  from  defending  against  them  on  the  ground  that 
they  are  invahd.^'  It  seems  to  us  that  the  doctrine  of  estoppel 
cannot  apply  where  there  is  an  entire  al^sence  of  power,  but  that 
it  does  apply  where  there  is  power,  although  it  is  improperly  or 
irregularly  exercised.  There  may  be  circumstances  in  addition 
to  the  retention  of  the  stock  which  will  create  an  estoppel,  but 
we  think  that  the  mere  retention  of  the  stock  will  not,  of  itself, 
create  an  estoppel.  It  has  been  held  that  the  corporation  will 
be  estopped  to  deny  the  validitv'  of  the  bonds  issued  in  exchange 
for  stock,  where  it  has  held  the  stock  for  years  and  exercised  the 
rights  of  a  stockholder  by  virtue  of  holding  such  stock. ^^ 

§  1105  (905).  Recitals  in  bonds — Effect  of  against  bondhold- 
ers.— The  principle  upon  which  rests  the  doctrine  that  recitals  in 
l>onds  estop  the  municipality  does  not  apply,  in  full  vigor  at 
least,  as  against  the  bondholder.  Thus,  a  recital  in  a  bond  that 
it  was  issued  under  a  ])articular  statute  may  estop  the  municipal- 

V.  Foster,  43  Iowa  48,  22  Am.  Rep.  Munson  v.   Lyons,   12   Hlatchf.   (U. 

215;  Lane  v.  Schomp,  20  N.  J.  Eq.  S.)    539. 

82;    Alvord   v.   Syracuse   &c.   Bank,  i-^  ]\runson   v.    Lyons,    12    Hlatclif. 

98  N.  Y.  599;  Belo  v.  Commission-  (U.    S.)    539;   Whiting  v.    Potter.  2 

ers,    76    N.    Car.    489;     Goshen    v.  Fed.     517;     Pendleton     County     v. 

Shoemaker.    12    Ohio    St.    624,    80  Amy.   13  Wall.    (U.  S.)    297,  20   L. 

Am.   Dec.  386.     Sec   for  numerous  cd.    579.      Where    bonds    were    ex- 

cascs    in    wliich    it    was    held    that  clianged  for  stock  the  fact  that  the 

there    was    an    estoppel.      Indepen-  stock   was   worthless   was    held    no 

dent  School  Dist.  v.  Rew,  111  Fed.  defence    against    a    bona    fide    pur- 

1.   5.  cliase  in  Truman  v.   Inhabitants  of 

1*  Pendleton    County  v.   Amy,    13  Harmony,   205    Fed.    549    (reversed 

Wall.    (LI.    S.)    297,   20   L.    ed.    579;  on  other  points  in  212  Fed.  4). 
Wliitins-    V.     Potter,     2     Fed.     517; 


?  1106 


RAILROADS 


546 


ity.  l:)ut  it  does  not.  according  to  the  adjuds^ed  cases,  estop  the 
holder  of  the  bond."'  Where  there  are  two  statutes  the  bond- 
holder may  show  under  which  of  the  two  the  bonds  were  issued. ^^ 
It  has  been  held  that  where  there  is  a  \alid  statute,  and  the  bonds 
recite  that  they  are  issued  "in  pursuance  of  an  act  of  the  legis- 
lature." it  will  be  ])resumed  that  the  bonds  were  issued  under  a 
valid  act  and  not  under  an  in\ali<l  act.'~^  It  is  somewhat  dif- 
ficult to  reconcile  the  doctrine  of  the  cases  referred  to  in  the 
notes  with  the  elementary  principle  that  an  estoppel  must  be 
reciprocal,  but  there  may  possibly  be  some  reason  for  denyini^^ 
the  application  of  this  general  principle.  The  bondholder  relies 
upon  the  recitals,  and  may  derive  benefit  from  them,  and  it  is 
not  easy  to  perceive  how  he  can  assert  an  estoppel  against  the 
municipality  and  yet  affirm  that  the  recitals  do  not  operate 
against  him.  If  there  is  a  clear,  express  and  unmistakable  identi- 
fication of  a  particular  statute,  we  cannot  conceive  on  w'hat 
ground,  except,  perhaps,  that  of  fraud  or  mistake,  the  purchaser 
of  the  bonds  can  be  heard  to  aver  that  they  were  issued  by 
authority  of  some  other  statute  than  that  designated.^"  Where 
there  is  no  specific  designation  of  a  statute  and  a  general  or  in- 
definite reference  to  legislative  acts,  there  is  reason  for  permitting 
the  bondholder  to  show  under  which  of  two  statutes  the  bonds 
were  issued. 

§1106  (906).  Refunding — Substitution.— Where  the  statute 
specifically  prescribes  how  the  power  to  issue  bonds  shall  l)e 
exercised,  and  upon  what  conditions,  it  must  be  substantially 
complied  with,  and   if  there  be  no  element  of  estoppel,   bonds 


16  Knox  County  v.  New  York 
Ninth  National  Bank,  147  U.  S. 
91,  13  Sup.  Ct.  267;  Johnson  Coun- 
ty V.  January,  94  U.  S.  202,  24  L.  ed. 
110.  See  'also  Beatrice  v.  Edmin- 
sf)n,   117  Fed.  427. 

1''  Ninth  National  Bank  v.  Knox 
Co.,  Zl  Fed.  75,  79,  citing  Johnson 
County  V.  January,  94  U.  S.  202. 
24  L.  ed.  110;  Anderson  County  v. 
Beal,  113  U.  S.  227,  5  Sup.  Ct.  433. 
28    L.    ed.    966;    and    distinguishinti 


Crow  V.  Oxford,  119  U.  S.  215,  7 
Sup.  Ct.  180,  30  L.  ed.  388;  Gilson 
V.  Dayton,  123  U.  S.  59,  8  Sup.  Ct. 
66.  31  L.  ed.  74. 

i*'  Moulton  V.  Evansville,  25  Fed. 
382,  387.  See  also  Municipal  Trust 
Co.  V.  Johnson  City,  116  Fed.  458. 

19  See  Crow  v.  Oxford  Tp.,  119 
U.  S.  215.  7  Sup.  Ct.  180,  30  L.  ed. 
388;  Cass  County  v.  Wilbarger 
County.  25  Tex.  Civ.  App.  52,  60 
S.  W.  988. 


rA7 


MUNICIPAL  AID  BONDS 


§1106 


issued  in  ;i  nnxk-  not  authorized  by  the  statute  are  voi(hihle.  Pntt 
where  a  choice  of  means  and  methods  is  left  to  the  municipahty 
it  may  adopt  such  means  or  methods,  within  the  ranoe  of  the 
power  conferred,  as  it  may  deem  ])est. '  It  has  been  held  that  :\ 
municipal  corporation  which  has  issued  legal  bonds  in  aid  of  a 
railroad  may  lawfully  take  them  up  and  issue  others  in  their  stead 
without  any  additional  grant  of  authority,  where  the  exchange 
can  be  made  on  terms  favorable  to  the  municipality.-"  We  can 
see  no  reason  w^hy  there  may  not  be  a  refunding  where  the 
statute  does  not 'expressly  or  impliedly  interdict  it,  but,  of  course, 
if  the  statute,  either  expressly  or  by  implication,  forbids  a  re- 
funding, then  there  can  be  no  valid  refunding.  It  has  also  been 
held  that  bonds  of  the  new^  series  may  be  enforced  even  though 
the  manner  of  issuing  them  as  prescribed  by  law  was  not  fol- 
lowed,-^ but  we  suppose  this  doctrine  cannot  obtain  where  there 
has  been  a  substantial  departure  from  the  statute  unless  there 
is  an  effective  estoppel.  We  regard  statutes  granting  power  to 
give  aid  to  railroad  companies  as  within  the  rule  that  grants  of 
corporate  power  are  to  be  strictly  construed,  and  for  that  reason 


-■^  Merchants  &c.  Bank  v.  Pulas- 
ki Co.,  1  McCr.  (U.  S.)  316;  Cause 
v.  Clarksville,  5  Dill.  (U.  S.)  165; 
Commonwealth  v.  Commissioners, 
37  Pa.  St.  237;  Rogan  v.  Water- 
town,  30  Wis.  259.  When  bonds, 
issued  in  aid  of  a  railroad,  are  after- 
wards replaced  by  new  bonds  is- 
sued in  place  of  those  that  had 
matured,  under  an  act  authorizing 
the  issue  of  the  new  bonds  and  de- 
claring them  to  be  a  continuation 
of  the  former  liability,  it  is  not 
necessary  that  the  question  of  is- 
suing the  new  bonds  should  be 
submitted  to  the  voters  of  the 
county  in  pursuance  of  this  section 
having  reference  to  the  contracting 
of  debts,  and  not  to  antecedent  ob- 
ligations, or  the  use  of  the  means 
necessary  for  their  discharge. 
Rlanton   v.   Board   of  Commission- 


ers, 101  N.  Car.  532,  8  S.  E.  162; 
Jasper  County  v.  Ballou,  103  U.  S. 
745,  26  L.  ed.  422;  Little  Rock  v. 
National  Bank,  98  U.  S.  308,  25  L. 
ed.  108:  Portland  &c.  v.  Evansville, 
25  Fed.  389;  Sullivan  v.  Walton,  20 
Fla.  552;  People  v.  Lippincott,  81 
111.  193;  Galena  v.  Corwith,  48  111. 
423,  95  Am.  Dec.  557.  See  also 
Board  v.  Travelers'  Ins.  Co.,  128 
Fed.  817;  Pierre  v.  Dunscomb,  106 
Fed.  617;  Hughes  Co.  v.  Livings- 
ton, 104  Fed.  306. 

21  See  AIcKee  v.  Vernon  Co..  3 
Dill.  (U.  S.)  210,  where  the  bonds 
substituted  were  engraved  instead 
of  being  signed  as  required  by  law, 
but  the  county  retained  the  consid- 
eration for  w-hich  the  original 
bonds  were  given,  and  paid  interest 
for  two  years  on  the  engraved 
bonds. 


^  1107 


RAILROADS 


548 


we  think  tlu-  doctrine  of  the  case  referred  to  should  be  limited 
rather  than  extended.  The  power  is  one  of  an  extraordinary 
nature,  and  is  liable  to  great  abuse,  so  that  courts  are  1)ound  to 
require  a  substantial  compliance  with  the  ])ro\isions  of  the  en- 
abHng  act.  Courts  move  on  dangerous  ground  when  they  assume 
to  disj^ense  with  obedience  to  such  statutes  or  to  adjudge  their 
pro\isions  to  be  merely  directory. 

§1107  (907).  Discretionary  powers  and  peremptory  duty. — 
1  here  is.  it  is  t)bvious.  a  clear  distinction  l)etween  the  exercise  of 
a  discretionary  power  and  the  performance  of  a  ])eremptory 
dvitv.  Courts  cannot  control  the  action  of  officers  invested  with 
discretionary  ])owers,  l)Ut  they  may  compel  the  performance  of 
a  specific  duty.  The  general  rule  is  that,  if  a  discretionary  power 
i:;  conferred  ujion  the  officers  of  a  municipality  as  to  whether  thev 
will  issue  bonds  in  ])ursuance  of  the  authority  contained  in  a 
popular  vote,  they  will  not  be  compelled  to  do  so.--  So.  it  has 
been  held  that  thev  may  be  given  discretionary  power  as  to  call- 
ing an  election.--'  A\'here  the  power  of  determining  the  course 
to  be  ])ursued  is  vested  in  the  municijial  authorities,  they  are  the 
judges  of  \vhat  will  best  promote  the  interests  of  the  munici])al- 
ity.  It  has  ])een  held  that  where  1)()nds  are  issued  the}'  may  be 
exchanged  directly  for  stock  of  the  railroad  company  without" 
an}-  special  power  in  the  act  authorizing  their  issue, -^  but   this 


22  People  V.  Cass  Co.,  11  111.  438. 
•  23  Weil,  Roth  &  Co.  V.  Newbern, 
126  Tcnn.  222,,  148  S.  W.  680,  L.  R. 
A.   1915A,  1009. 

24  Evansville  &c.  R.  Co.  v.  Ev- 
ansville,  15  Ind.  395;  Slack  v.  jMays- 
viUe  &c.  R.  Co..  13  B.  Mon.  (Ky.) 
1;  Commonwealth  v.  Pittsburgh,  41 
Pa.  St.  278:  Meyer  v.  Muscatine,  1 
Wall.  (U.  S.)  384.  17  L.  ed.  564. 
Even  where  there  is  a  doubt  as  to 
the  right  to  make  the  exchange 
under  the  strict  terms  of  the  stat- 
ute, the  municipality  can  not  deny 
the  validity  of  the  bonds  merely 
upon  that  account  after  having  re- 


ceived full  consideration,  and  after 
makir.g  use  of  the  stock  to  carry 
its  purposes  into  effect.  Bridge- 
port V.  llousatonic  R.  Co..  15  Conn. 
475.  Where  a  town  subscribes  for 
shares  in  the  capital  stock  of  a 
railroad,  and  issues  bonds  for  the 
payment  thereof,  it  is  not  neces- 
sary that  the  bonds  be  sold  in  the 
market  for  cash,  in  order  that  the 
money  be  paid  to  the  railroad  com- 
pany, when  the  latter  is  willing  to 
take  the  bonds  at  their  full  value. 
Commonwealth  v.  Williamstown, 
156  -Mass.  70.  30  N.  E.  472. 


54!) 


MUNICIPAL   All)  liONDS 


§1108 


doctrine  can  not  prcxail  where  the  statute  ex])res,sl\-  or  inipliedls" 
forbids  such  exchani^e.  AVhere  the  (hity  to  execute  bonds  is 
])eremi)tory.  and  all  the  prehniinary  ctjiiditions  have  l)een  ful- 
fdled.  a  writ  of  maiuhinnis  will  be  awarded  to  compel  the  munici- 
pal officers  to  act.-"' 

§1108  (908).  Registration. —  The  decisions  of  the  courts 
place  great  stress  upon  provisions  in  enabling  acts  requiring 
bonds  to  be  registered,  and  hold  that  such  provisions  must  be 
strictly  obeyed.  It  seems  difficult  to  harmonize  the  statements 
found  in  the  decisions  referred  to  with  those  made  in  the  many 
cases  broadly  asserting  and  enforcing  the  doctrine  of  estoppel 
by  recitals.-"  It  is  held,  where  all  bonds  issued  to  aid  a  railroad 
company  were  required  l)y  law  to  1)e  registered  with  the  state 
auditor  before  being  negotiated,  and  bonds  which  were  not  so 
registered  were  declared  by  statute  to  be  void,  that  bonds  issued 
after  the  act  went  into  force  were  void,  although  they  were 
dated  as  of  a  time  prior  to  the  passage  of  the  act.-" 


2'  People  V.  Cline,  63  111.  394; 
People  v.  Cass.  Co.,  11  111.  438. 

-•'  This  is  especially  true  of  the 
case  of  German  Savings  Bank  v. 
Franklin  County,  128  U.  S.  526,  9 
Sup.  Ct.  159.  II  L.  ed.  519. 

-"  Anthony  v.  Jasper  County,  101 
U.  S.  693,  25  L.  ed.  1005,  affirming 
.\nthony  v.  Jasper  Co.,  4  Dill.  (U. 
S.)  136;  HofT  V.  Jasper  County,  110 
U.  S.  53,  3  Sup.  Ct.  476.  28  L.  ed. 
68;  German  Savings  Bank  v.  Frank- 
lin County.  128  U.  S.  526.  9  Sup. 
Ct.  159.  32  L.  ed.  519;  Bissell  v. 
Spring  Valley  Tp..  124  U.  S.  225, 
8  Sup.  Ct.  495.  31  L.  ed.  411;  Crow 
v.  Oxford,  119  U.  S.  215,  7  Sup.  Ct. 
180,  30  L.  ed.  388;  Dixon  County 
V.  Field,  111  U.  S.  83.  4  Sup.  Ct. 
315,  28  L.  ed.  360;  Eagle  v.  Kohn, 
84  111.  292:  Richeson  v.  People.  115 
111.  450.  5  N.  E.  121;  Parker  v. 
Smith,  3Bradw.(Ill.)356.  In  the  case 


of  Concord  v.  Portsmouth  Savings 
Bank,  92  U.  S.  625.  23  L.  ed.  628,  the 
Dpinion  is  expressed  that  a  recital 
in  the  bonds  that  a  subscription 
had  been  made  before  a  constitu- 
tional provision  forbidding  such 
subscriptions  took  effect,  and  that 
the  bonds  were  issued  in  pursuance 
of  such  subscription  and  in  con- 
formity with  the  provisions  of  the 
act  under  which  that  subscription 
purported  to  have  been  made,  be- 
ing a  recital  of  matters  of  fact,  pe- 
culiarly within  the  knowledge  of 
the  municipal  officers,  would  oper- 
ate as  an  estoppel  against  the  muni- 
cipality which  would  prevent  it 
from  denying  its  liability  upon  the 
bonds.  A  recovery  of  the  sum  ac- 
tually paid  for  the  bonds  was  al- 
lowed in  a  case  where  the  public 
corporatiiin  had  power  to  borrow 
nionov,  and  the  avails  of  the  bonds 


§  llOi)  KAILKOADS  550 

§  1109  (909).  Rights  of  bona  fide  holders  not  affected  by  sale 
of  bonds  at  a  less  sum  than  that  prescribed  by  statute. — A  buna 
fide  holder  of  aid  bonds  who  aeqiiires  them  in  the  usual  course 
of  business  is  entitled  to  enforce  thi-m  a.^ainst  the  municipality, 
althou<ih  they  were  originally  sold  by  the  railroad  company  at  a 
sum  less  than  that  ])rescribed  by  the  enabling  act.  Jn  one  of  the 
cases  tile  statute  ])ro\ided  that  the  railroad  company  should  not 
sell  the  bonds  "at  less  than  their  par  \alue,"  but  the  court  held 
that  the  fact  that  the  com])an}'  did  sell  the  l)()nds  for  less  than 
their  i)ar  value  did  not  constitute  a  defense  on  the  i)art  of  the 
municipality.-*^  In  another  case  which  arose  under  a  statute 
similar  to  that  acted  upon  in  the  case  referred  to,  the  court  held 
that  the  bonds  were  enforceable  in  the  hands  of  a  bona  fide 
holder,  although  the  railroad  comprnn-  had  sold  them  for  sixty- 
four  cents  on  the  dollar.-'-^ 

§  1110  (910).  Subrogation  of  holder  of  invalid  bonds. — As  we 
have  seen,  the  power  to  grant  aid  does  not  necessarily  carry  with 
it  the  po^ver  to  isstie  neg"(jtial)lc  bonds,  so  that  there  may  be 
power  to  subscribe  to  the  stock  of  a  railroad  company  and  pay 
the  subscription  in  money,  but  no  power  to  issue  negotiable 
bonds  in  payment  of  the  subscription.  The  power  to  issue  bonds 
depends  entirely  upon  the  statute,  and  if  there  be  no  power  the 
bonds  are  void.  But  where  bonds  are  acquired  in  good  faith, 
and  in  the  belief  that  they  were  valid,  the  holder  may  be  entitled 
to  be  subrogated  to  the  rights  of  the  municipality  to  the  extent 
of  the  interest  represented  by  his  bonds.  The  general  principles 
of  subrogation  authorized  this  conclusion,  for  the  person  who 
]uu-chases  the  bonds  is  not  a  mere  volunteer.  In  accordance  with 
this  general  doctrine,  it  has  been  justly  held  that,  where  there 
was  power  to  subscribe  to  the  stock  of  a  railroad  company,  but 

were    used    Ijy  the    corporation   for  -^  Woods   v.   Laurence   County,   1 

legitimate        corporate       purposes.  Black    (U.    S.)    386,   410,    17    L.    cd. 

Wood  V.  Louisiana,  5  Dill.  (U.  S.)  122. 

122;  Louisiana  v.  Wood,  102  U.  S.  -"  Richardson    v.    Lawrence    Co., 

294.  26  L.  ed.  153.  citing  Moses  v.  154  U.  S.  536,  14  Sup.  Ct.  1157,  17 

AIcFerlan,  2   Burr.    1005;   Marsh   v.  L.  ed.  558. 
Inilton    County,    10    Wall.    (U.    S.) 
676,  19  L.  ed.  1040. 


551  ivirMcii'Ai,  \in  uoNDS  §1111 

HO  ])()\ver  1(1  issue  IjoucIs.  the  purchaser  of  such  bonds  was  entitled 
to  stock. •^''  J-)iit  it  has  also  been  held  that  a  purchaser  of  bonds  in 
the  open  market  is  a  mere  volunteer,  and  is  not  entitled  to  be 
subroi^ated  to  the  equity  of  contractors  to  whom  the  bonds  were 
issued  for  work  done  by  theni.""^ 

§  1111  (911).     Liability  of  municipality  to  purchaser  of  invalid 

bonds. —  It  is  held  that,  where  a  municipality  having  power  to 
issue  bonds  disposes  of  bonds  which,  by  reason  of  a  defective 
execution  of  the  power  it  possesses,  are  invalid,  the  holder  of  the 
bonds  may  recover  back  the  sum  actually  paid  for  tlicm  in  an 
action  for  money  had  and  received.-'-  But  where  the  issue  of  the 
bonds  is  positively  forbidden  by  law,  as  where  the  municipality  is 
forbidden  by  the  state  constitution  to  incur  the  debt  for  which 
they  are  issued,  the  purchaser  is  without  remedy,  since  the  cor- 
poration cannot  indirectly  become  liable  on  an  indebtedness 
which  it  is  forbidden  to  assume  directly .''•* 

30  Illinois  Grand  Trunk  R.  Co.  v.  held  to  liability  on  the  subscrip- 
Wade,  140  U.  S.  65,  70,  11  Sup.  Ct.  tion.  Norton  v.  Dyersburg.  127  U. 
709,  35  L.  ed.  342.  To  the  point  S.  160.  8  Sup.  Ct.  1111,  32  I.,  ed.  85. 
that  the  bonds  were  void  the  court  •^•*  Litchfield  v.  Ballou,  114  U.  S. 
cited  Wade  v.  Walnut,  105  U.  S.  1.  190.  5  Sup.  Ct.  820.  29  L.  ed.  132. 
26  L.  ed.  1027.  In    this    case    bonds    were    sold    in 

31  O'Brien  v.  WheeUick.  78  Fed.  e.xcess  of  the  constitutional  limit 
673.  of   city   indebtedness   and    the   pro- 

^-  Wood  v.  Louisiana,  5  Dill.  (U.  ceeds    were    used    in   part   payment 

S.)    122:    Louisiana    v.    Wood,    102  for  a  system  of  water-works  which 

U.    S.  294,   26   L.   ed.    153;    Paul   v.  the  city  erected  on  land  previously 

Kenosha,  22  Wis.  266.  94  Am.  Dec.  acquired.     The  bonds   having  been 

598;    Cause    v.    Clarksville,    5    Dill.  declared   void,  a   suit  was  brought 

(U.   S.)    165.     Sec  also   notes   in   27  to  have  the  purchase-price  declared 

L.  R.  A.  (N.  S.)    1117;  41   L.  R.  .'\.  a  lien  in  equity  against  the  water- 

(N.   S.)   473,  and   46   L.    R.  A.    (N.  works,  but  the  court  held  that  the 

S.)   921.   on    the  general   subject   of  city   could   not   render   itself  or   its 

liability    of    municipalities    on    im-  property  liable  in  an}'  way  for  the 

plied  contract.  A  municipality  which  debt    which    the    bonds    evidenced, 

issued  bonds  in  payment  of  a  stock  See   .\gawam    Nat.    Bank   v.   South 

subscription   can   not,   in   an   action  Hadley.    128    ^lass.    503;    Railroad 

on  such  bonds,  when  they  have  Nat.  Rank  v.  Lowell,  109  ^lass.  214. 
been    held    void    as    ultra    vires,   be 


1112  RAILROADS 


552 


§1112    (912).     Right  of  municipality   to  recover  money  paid 
because  of  wrongful  acts  of  the  railroad  company. —  It  seems  just 
to  hold  that  where   tlie  \vr(ini;lul   acts  of  the  railroad   company 
compel   the   municipality   to   pay   illegal   honds   it   may   have   an 
action  for  the  recovery  of  the  money  it  has  been  compelled  to 
pay.     In  a  case  where  the  railroad  company  i)rocured  neg-otiable 
bonds  to  be  ille.gally  issued  by  the  officers  of  a  town,  which  were 
in  form  the  obligations  of  the  town,  and  recited  that  they  were 
legallv  issued,  and  such  bonds  were  negotiated  and  transferred 
l)y  it  for  the  full  face  value  thereof,  and  were  stibsequently  nego- 
tiated and  sold  to  the  citizens  of  another  state,  who,  in  an  action 
in  the  circuit  court  of  the  United  States,  brought  against  the  town 
to  recover  overdue  interest,  and  tried  upon  the  merits,  recovered 
Imal  judgment  therefor,  which  fixed  the  liability  of  the  town  for 
the  whole  amount  of  such  bonds  to  the  holders  thereof,  it  was 
held  that,  by  reason  of  such  wrongful  acts  of  the  company,  a 
cause  of  action  arose  in  favor  of  the  town,  and  against  the  com- 
pany, for  the  recovery   of  the  amount  of  such  bonds,  with   in- 
terest.-^-*    We  think  that,  while  there  may  ]K)ssibly  be  cases  wdiere 
money  can  be  recovered  from  a  wrong-doing  company,  they  are 
very  rare.    We  do  not  believe  that  there  can  be  a  recovery  where 
the  company  acts  in  good  faith  and  the  loss  is  solely  attributable 
to  a  mistake  of  law.     In  a  case  where  an  officer  of  the  company. 
after  the  corporate  existence  of  an  alleged  railroad  corporation 
had  ceased  bv  failure  to  com])ly  with  the  law  regulating  such  cor- 
porations, knowing  its  condition,  and  having  in  its  hands  bonds 
given  by  plaintifif  village  to  such  corporation,  and  know^ing  that 
such  bonds  were  void,  and  could  not  be  enforced  by  such  cor- 
poration, fraudulently  sold  them  to  innocent  parties,  representing 
them  to  be  l)ona  fide  securities,  and  valid  l)onds  of  plaintifif  vil- 
lage, it  was  held  that  such  officer,  by  his  fraud,  became  liable  to 

34  Plainview  v.  Winona  &c.  R.  it  is  (l(>ul)tful  it  this  case  can  be 
Co.,  36  Minn.  505.  .32  N.  \V.  745.  sustained  on  principle.  It  seems  to 
As  the  boiKts  in  tliis  case  were  us  that  tlie  case  cited  carries  the 
issued  under  a  statute  which  was  doctrine  too  far,  for,  as  we  con- 
declared  unconstitutional,  and  the  ceivc,  there  was  no  actionable 
town  had  received  tlie  benefits  wron.tr.  nor  anytliinfi'  more  than  a 
from   the   construction   i>f  tlie  road.  mere   mistake  of   law. 


553  MIXICIPAL  AID  UONDS  §  1113 

the  village  ff)t"  the  \alue  of  the  bonds  negotiated  liy  him.  and  tlie 
fact  that  he  had  accounted  to  his  company  for  the  proceeds  did 
not  release  him. '•'  We  regard  the  doctrine  of  the  case  referred  to 
as  sound,  for  there  was  clearly  actional)le  fraud  causing  damages. 

§  1113  (913).  Defenses  to  aid  bonds. —  It  may  he  said,  gen- 
erall}'.  that  the  entire  absence  of  power  to  issue  bonds  is  always 
a  sufficient  defense  to  an  action  on  the  bonds,  but  that,  as  a  rule, 
the  irregular  or  improper  exercise  of  a  power  duly  conferred 
does  not  fin-nish  sufficient  grounds  for  a  defense  against  bonds 
in  the  hands  of  a  bona  fide  holder.-''*'  Payment  of  the  bonds  can 
not  be  successfully  resisted  upon  g^rounds  which  are  insufficient 
to  release  the  corporation  from  its  subscripticni.  such  as  the 
wrongful  acts  of  the  corjxtration  or  its  officers,''"  or  any  acts 
done  by  it  in  pursuance  of  a  power  to  lease,  consolidate,  increase 
the  capital  stock,  or  the  like.  A\hich  existed  at  the  time  the  bonds 
were  issued.'"'^    The  failure   of  the   officer  issuing  the  bonds  to 

'■''■''  I'arnliam    v.    T!cnedict,    107    N.  Joseph  Tp.  v.  Rogers,  16  Wall.  (U. 

Y.  159,  13  N.  E.  784.  S.)  644,  21   L.  ed.  328;  Brenham  v. 

^^  See    generally    as    to    defenses.  German-American   Bank,  144  U.  S. 

D'Esterre  v.  Brooklyn,  90  Fed.  586  173.  12  Sup.  Ct.  559,  36  L.  ed.  390; 

(failure  of  consideration  not);  An-  Bissell  v.   Kankakee,  64  III.  249.   16 

derson    County   v.    Beal,    113    U.    S.  Am.  Rep.  554. 

227,  5   Sup.   Ct.  433,  28  L.  ed.  966,  S' Ottawa    &c.    R.    Co.    v.    Black, 

and    Cairo  v.  Zane,   149  U.   S.    122,  79  III.  262;  Illinois  Midland  R.  Co. 

13  Sup.  Ct.  803,  37  L.  ed.  673  (cer-  v.  Barnett,  85  111.  313. 

tain  misconduct  not);   Cromwell  v.  ^^  iMenasha  v.   Hazard,   102  U.   S. 

Sac  County,  96  U.  S.  51,  24  L.  ed.  81,   26    L.    ed.   85;   Wilson   v.    Sala- 

681;    Huron  v.    Second   Ward    Sav.  manca,  99  U.  S.  499,  25  L.  ed.  330; 

Bank.  86  Fed.  272,  49  L.  R.  .X.  534;  Henry  County  v.  Nicolay,  95  U.  S. 

Loesnitz  v.  Seelinger,  127  Ind.  422.  619.  24  L.  ed.  394;   East  Lincoln  v. 

25    N.   E.    1037.  26   N.    E.  887;   and  Davenport,  94  U.  S.  801,  24  L.  ed. 

Clapp  V.   Cedar   Co.,  5   Iowa   15,  68  322;     Nugent     v.     Supervisors.     19 

Am.    Dec.   678    (fraud   or  mi.^appli-  Wall.    (U.  S.)   241,  22  L.   ed.  83,  3 

cation   of  proceeds  not).     See   also  Biss.   (U.  S.)    105;   Illinois   ]\Iidland 

elaborate  note  to  Town  of  .\urora  R.   Co.  v.   Barnett,  85   III.  313;   Ed- 

V.  Gates,  208  Fed.  101,  in   L.  R.  A.  wards   v.    People,   88    III.   340;    Mt. 

1915A,  910.     Want  of  power  is,  or-  Vernon    v.    Hovey,    52    Ind.    563; 

dinarily  at   least,   the   only  defense  State    v.    Greene    Co.,   54   Mo.    540. 

against  a   bona   fide   holder   relying  The   fact   that   a   railroad   company 

upon    the    authorized    recitals.      St.  to  whom  bonds  were  authorized  to 


§  111-i 


RAILROADS 


554 


annex  to  his  signature  words  indicating  his  ofificial  position  does 
not  invalidate  the  bonds,  but  the  fact  that  he  is  an  officer  of  the 
municipality  may  be  proven  by  extrinsic  evidence.'*''  And  the 
lad  that  the  officers  by  whom  the  bonds  were  executed  were  not 
legally  elected  will  not  avail  as  a  defense  against  a  suit  to  en- 
force payment,  if  they  were  serving  as  de  facto  officers  with  the 
acquiescence  of  the  municipality.  The  invalidity  of  aid  bonds, 
on  the  ground  that  the  town  had  no  constitutional  or  statutory 
authority  to  issue  the  same,  can  be  urged  as  a  defense  by  the 
town,  though  it  has  ]xii(l  installments  on  the  bonds.*'' 

§  1114  (914).  Bondholders  not  bound  by  proceedings  to 
which  they  are  not  parties. — Tlu'  familiar  elementary  rule  is  that 
no  person  is  l)ound  b}'  a  judgment  or  decree  rendered  in  an  ac- 
tion or  suit  to  which  he  is  not  a  party  or  privy.  It  is  necessary, 
therefore,  in   order  to  secure  a   judgment  or  decree  binding  a 


be  issued  was  consolidated  by  stat- 
ute with  another,  after  notice  of  an 
election  began  to  run,  does  not 
render  the  bonds  void  because  is- 
sued to  the  consolidated  company, 
where  the  consolidation  act  took 
efFect  before  the  election.  Nelson 
V.  Haywood  Co.,  3  Pick.  (Tenn.) 
781.  An  agreement  by  a  railroad 
company,  executed  after  a  county 
had  subscribed  for  its  stock,  to  sell 
and  transfer  its  road  after  comple- 
tion, in  order  to  obtain  money  for 
its  construction,  does  not  release 
the  county  from  the  payment  of  its 
subscription  which  was  payable 
when  the  road  was  completed  "and 
in  operation  by  lease  or  otherwise." 
Southern  Kansas  R.  Co.  v.  Turner, 
41  Kans.  72.  21  Pac.  221.  Under 
the  Missiiuri  act  to  authorize  the 
consolidation  of  railroad  companies 
in  that  state  with  companies  in 
adjoining  states,  the  consolidated 
company    is    entitled    to    the    same 


privileges  under  the  laws  of  Mis- 
souri that  the  Missouri  corporation 
.was  entitled  to  at  the  time  of  the 
consolidation,  including  the  privi- 
lege of  collecting  a  subscription  to 
stock  by  a  township.  Livingston 
County  v.  Portsmouth  First  Nat. 
Bank,  128  U.  S.  102,  9  Sup.  Ct.  18. 
32  L.  ed.  359. 

39  County  Commissioners  v.  King, 
13  P'la.  451.  See  also  Board  of 
Comrs.  of  Onslow  Co.  v.  Tollman, 
145  Fed.  753. 

40  Marsh  v.  Fulton  County,  10 
Wall.  (U.  S.)  676,  19  L.  ed.  1040; 
Daviess  County  v.  Dickinson,  117 
U.  S.  657,  6  Sup.  Ct.  897,  29  L.  ed. 
1026;  Norton  v.  Shelby  County,  118 
U.  S.  425,  6  Sup.  Ct.  1121,  30  L.  ed. 
178;  Doon  Tp.  v.  Cummins.  142 
U.  S.  366,  12  Sup.  Ct.  220.  35  L.  ed. 
1044;  Glenn  v.  Wray,  126  N.  Car. 
730,  36  S.  E.  167;  Buncombe  v. 
Payne,  120  N.  Car.  432.  31  S.  E. 
711. 


ooo 


MrNMCII'Al.    AID   MONDS 


§  1115 


bondholder,  tliat  he  should  he  l)rt)U.<4ht  into  court.  The  rule  is 
that  the  eoin't  will  not  pass  upon  any  questions  tcnichinsif  the 
bonds  unless  tlie  bondholders  are  before  the  court.  And  it  has 
refused  to  adjud.^e  bonds  fraudulent  as  between  the  railroad 
and  the  municipality,  and  to  decree  that  the  railroad  should  pay 
them,  in  the  absence  of  those  to  whom  the  bonds  had  been  as- 
signed.'*' 

§1115  (915).  Following  state  decisions. — Questions  as  to  the 
validity  of  municipal  aid  bonds  very  often  depend  upon  the  con- 
struction given  state  statutes  by  the  courts  of  the  state  by  which 
the  statute  is  enacted.  The  federal  courts,  as  a  rule,  follow  state 
decisions,  construing  state  constitutions  or  statutes,  but  do  not, 
unless  they  regard  them  as  sound,  f(.)lUnv  them  upon  general 
questions  of  law.  The  Supreme  Court  of  the  United  States 
holds  itself  bound  by  the  settled  construction  given  to  a  state 
statute,  in  so  far  as  it  afifects  the  validity  of  bonds  issued  after 
the  statute  has  been  so  construed,*-  but  it  holds  that  it  is  not 
concluded  by  any  decisions  of  the  state  courts  made  after  the 
bonds  have  been  negotiated,  at  least  where  such  decisions  are 
based  upon  general  principles  of  law.  And  it  will  decide  the  case 
according  to  its  own  rules  of  construction,  where  the  points 
raised  have  never  been  adjudicated  in  the  state  courts.*" 


41  Ralls  County  v.  Douglass,  105 
U.  S.  728,  26  L.  ed.  957.  See  also 
California  v.  Southern  Pac.  Co.,  157 
U.  S.  229.  15  Sup.  Ct.  591,  39  L.  ed. 
683;  Minnesota  v.  Northern  Secur- 
ities Co.,  184  U.  S.  199,  22  Sup.  Ct. 
308.  46  L.  ed.  499;  Anthony  v. 
State.  49  Kans.  246,  30  Pac.  488; 
Hoppock  V.  Chambers,  96  Mich. 
509,  56  N.  W.  86;  Grand  Trunk  R. 
Co.  V.  Chicago  &c.  R.  Co.,  141  Fed. 
785;  Mitau  v.  Roddan.  149  Cal.  1. 
84  Pac.  145. 

*2  Wilkes  County  v.  Coler,  180 
U.  S.  506.  21  Sup.  Ct.  458,  45  L.  ed. 
642;  Green  County  v.  Conness,  109 
U.  S.  104,  3  Sup.  Ct.  69,  27  L.  ed. 


872;  Folsom  v.  Township  Ninety- 
six.  159  U.  S.  611,  624,  16  Sup.  Ct. 
174,  40  L.  ed.  278;  Board  v.  Trav- 
eler's Ins.  Co..  128  Fed.  817;  Board 
V.  Texas  &c.  R.  Co.,  46  Tex.  316; 
ante  §  1244.  notes  66  and  66a;  also 
notes  in  40  L.  R.  A.  ( N.  S.)  396; 
L.   R.  A.  1915A,  981. 

•13  German  Savings  Bank  v.  I'rank- 
lin  County,  128  U.  S.  526,  538,  9 
Sup.  Ct.  159,  32  L.  cd.  519;  Ander- 
son V.  Santa  Anna,  116  U.  S.  356. 
6  Sup.  Ct.  413,  29  L.  ed.  633;  John- 
son County  V.  January.  94  U.  S. 
202,  24  L.  ed.  110;  Green  County 
V.  Conness,  109  U.  S.  104.  3  Sup. 
Ct.   69.   27   L.   ed.  872;   Burgess   v. 


>;"  1116  RMLHOADS  55() 

§1116  (916).  Jurisdiction  of  federal  courts. —  It  is  not  (Uir 
purptjsc  to  enter  into  any  extended  discussion  ol  the  question  of 
the  jurisdiction  of  the  federal  courts,  nor.  indeed,  to  do  more 
than  make  a  very  few  l)rief  sug'i^estions.'^  It  is  barely  necessary 
to  say  that  the  jurisdiction  in  suits  and  actions  upon  municipal 
1)onds  depends  upon  the  same  principles  as  those  which  prevail 
in  ordinary  cases.  There  is  nothing'  in  the  nature  of  a  municipal 
Ixmd  tliat  of  itself  !^i\es  federal  jurisdiction.  Bonds  of  this 
character  are  so  g"enerall\'  in  the  hands  of  ])ers()ns  living  in  other 
ftates  than  those  authorizing'  the  issue,  that,  for  this  reason,  and 
mIso  for  the  reason  that  the  ciu-rent  of  judicial  decision  of  the 
Tnited  States  courts  is  faxorable  to  the  bondholders,  nearly  all 
llie  litis^'ation  of  this  character  is  carried  on  in  those  cotirts. 
There  must,  however,  in  all  such  cases  A\lu'rc  relief  is  sought 
ti])on  municipal  bonds,  be  diverse  citizenship,  or  the  federal 
courts  will  not  have  jurisdiction.^^   The  fact  that  so  much  of  the 

Seligman.   107  U.   S.  20,  2   Sup.   Ct.  possibly  the  lioldinjr  would  be  dif- 

10,  27  L.  ed.  356;  Shelby  County  v.  ferent   if   the   decision   of   the   state 

Union   &c.   P>ank,  161   U.  S.  149,   lo  court  was  based  upon   the   peculiar 

Sup.  Ct.  55S,  40  L.  cd.  650;  ^Mobile  conslructi.m  of  a  local  statute  and 

iS^c.   R.   Ci).  V.  Tennessee,  153  U.  S.  nut  upon   .general  principles.     Elm- 

486,  14  Sup.  Ct.  968,  38  L.  ed.  793;  \v'n,d   Tp.   v.   Marcy,  92  U.   S.  28^, 

Columbia  Ave.  &c.  Co.  v.  Dawson,  23  I.,  ed.  710.     See  Venice  v.  ]\lur- 

130     i'ed.     152;     Stanly     County    v.  dock.   92   U.    S.   494,   23    1..    ed.   583. 

Coler,    190    U.    S.   437.   23    Sup.    Ct.  In    Gelpcke    v.    Dubuque.    1    Wall. 

811.  47  L.  ed.  1126.     See  also  note  (U.  S.)  175,  17  L.  ed.  520.  and  City 

in    40    L.    R.    A.    (N.    S.~)    380.      In  v.  Lamson,  9  Wall.  (U.  S.)  477,  19 

Douglass  v.  Pike  County,  101  U.S.  1..    ed.    725.    the    decisions    of    the 

677.  25   L.  ed.   968,  the  court  says:  court   are   placed   upon   the   ground 

"After    a    statute    lias    been    settled  that    the    supreme    courts    of    Towa 

by    judicial    constructiun    the    con-  and     Wisconsin,     respectively,     had 

struction    l)ecomes,    so    far    as    con-  been    so   vacillating  that   there   was 

tract    rights    acquired    under    it    are  authority    for    either    view    of    the 

concerned,   as    much   a   part   of  the  question     that     the     Ignited     .'States 

statute  as  the  text  itself."  cotn-t  chose  to  take. 

'•''  Olcott  v.  Supervisors.  16  Wall.  '*'•  Federal    courts    have    jurisdic- 

(U.    S.)    678.    21    L.    ed.    382;    Pine  tion    over    a    suit    brought    by    an 

Grove  Tp.  v.  Talcott,  19  Wall.   (U.  assignee  of  a  municipal  bond  which 

S.)    666.    22    P.    ed.    227;    Claiborne  is    in    form    a    simple    acknowledg-  . 

County   V.    Brooks.    Ill    U.   S.   400,  ment   of   indebtedness   and    an    im- 

4  Sup.  Ct.  489.  28  T..  ed.  470.     Put  conditional    promise    to   pay   a   cer- 


MrXKJIPATi  Ain   HOXDS 


§1117 


litii^ation  is  in  the  federal  courts  makes  it  desirable  that  the  rules 
established  b\'  the  Supreme  Court  of  the  United  States  should 
l>e  acce]:)ted  as  the  law  by  the  state  courts.  The  decisions  of 
that  court,  except  as  to  federal  questions,  are,  it  is  true,  not  bind- 
in,L;-  on  tlu-  state  tribunals,  but  if  they  were  followed  much  confit- 
sion  would  be  avoided. 

§  1117  (917).  Compelling  issue  of  bonds. — The  well-known 
f^eneral  rule  that,  where  municipal  officers  are  under  an  impera- 
tive dut\-  to  i)erform  an  act.  mandamus  will  lie  to  coerce  per- 
formance. Init  will  not  lie  \\  here  the  duty  is  purely  discretionary, 
a]:)plies  to  cases  where  railroad  companies  or  purchasers  are  en- 
titled to  municipal  bonds.  If  there  is  a  mandatory  duty  resting 
on  the  municii)al  officers  to  execute  and  deliver  l)onds  the  ])arty 
entitled  to  the  bonds  may  compel  their  delivery  by  a  writ  of 
mandamus.^"  The  party  who  asks  the  writ  must  show  that  there 
is  a  dut\-  to  issue  the  bonds,  otherwise  tlie  writ  will  be  denied. 


tain  sum  at  a  certain  time.  Porter 
V.  Janesvillo.  3  Fed.  617.  But  no 
recovery  can  be  had  upon  munici- 
pal bonds  transferred  by  citizens 
of  the  state  where  the  municipality 
is  situated,  to  a  citizen  of  another 
state,  fi)]-  tlie  sole  purpose  of  giv- 
ing; jurisdiction  to  the  courts  of 
the  United  States.  New  Providence 
V.  Halsey.  117  U.  S.  336.  6  Sup.  Ct. 
764,  29  L.  cd.  904.  And  the  same 
rule  applies  to  assignments  of 
coupons.  Farmington  v.  Pillsbury. 
114  U.  S.  138.  5  Sup.  Ct.  807.  29 
F.  ed.  114. 

■**'  Smith  V.  Bourbon  County.  127 
V.  S.  IDS,  8  Sup.  Ct.  1043.  32  F.  ed. 
73:  ^lassachusetts  &c.  Co.  v.  Clier- 
okee  Tp..  42  Fed.  750;  Santa  Cruz 
&c.  R.  Co.  V.  Board  &c.  Santa  Cruz 
Co..  62  Cal.  239;  People  v.  Ohio 
Grove  Township.  51  111.  191;  Peo- 
ple V.  Oldtown.  88  111.  202;  Chicago 
&c.  R.  Co.  V.  Mallorv.  101  111.  583; 


State  V.  Fake  Citjs  25  Minn.  404; 
People  V.  Walter,  2  Hun  (N.  Y.) 
385;  Humphreys  County  v.  Mc- 
Adoo.  7  Heisk.  (Tenn.)  585;  State 
V.  Jennings,  48  Wis.  549,  4  N.  W. 
641.  In  Massachusetts  &c.  Co.  v. 
CIuTokee  Tp.,  42  Fed.  750,  it  was 
held  that  specific  performance  of 
the  dut}'  to  deliver  would  be  de- 
creed, but  it  seems  to  us  that  man- 
damus is  the  appropriate  remedy 
where  there  is  a  peremptory  olifi- 
cial  duty.  Analogous  cases  sup- 
port this  conclusion.  Selma  &c.  R. 
Co.  Ex  parte,  45  Ala.  696,  6  Am. 
Rep.  722;  Pfister  v.  State,  82  Ind. 
382;  Carpenter  v.  County  Commis- 
sioners, 21  Pick.  (Mass.)  258; 
Osage  Vallej'  &c.  R.  Co.  v.  County 
Ct.,  53  Mo.  156;  Cincinnati  &c.  R. 
Co.  V.  Clinton  Co.,  1  Ohio  St.  77: 
Commissioners  v.  Hunt.  33  Ohio 
St.  169. 


i;  1118 


RAILROADS 


558 


Thus,  where  the  notice  i)f  the  election  was  insufficient,  the  writ 
was  refused,  although  the  aid  had  been  voted.*'  But  we  suppose 
that  the  doctrine  of  the  case  just  referred  to  cannot  apply  where 
there  are  acts  constituting^  an  estoppel,  since  errors  and  irregu- 
larities in  conducting  the  election  cannot  be  made  available  to 
defeat  the  rights  of  one  who  has  acted  in  good  faith  without  no- 
tice, and  who  would  suiter  loss  if  the  niunici])ality  were  per- 
mitted to  take  advantage  of  errors  and  irregularities. 

§1118  (918).  Remedies  of  bondholders. — Where  the  bonds 
are  issued  by  municipal  corporations  and  are  the  general  obli- 
gations of  the  cori)orations  issuing  them,  the  holder  may  main- 
tain an  ordinary  action  at  law  and  secure  judgment.  He  cannot, 
according  to  some  of  the  decisions,  resort  to  mandamus  in  the 
first  instance  in  cases  where  the  bonds  are  general  corporate 
obligations,  since  he  has  an  adequate  remedy  at  law.*^  Where  a 
judgment  is  obtained  on  the  bonds,  and  the  municipal  officers 
refuse  to  levy  a  tax  to  pay  the  judgment,  mandamus  will  lie  to 
compel  the  municipal  officers  to  make  the  proper  levy.*^  The 
right  of  the  l)ondholders  to  have  a  tax  levied  cannot  be  defeated 
l)y  the  resignation  of  the  municipal  officers."'"    It  was  held  by  a 


4-  McAFahnn  v.  Board  &c..  46 
Cal.  214. 

4s  Sharp  v.  .Mayor  &c.,  40  Barb. 
(N.  Y.)  256;  People  v.  Hawkins, 
46  N.  Y.  9;  Lynch,  Ex  parte.  2  Hill 
(N.  Y.)  45. 

49  Knox  County  v.  Aspinwall,  24 
How.  (U.  S.)  Zie,  16  L.  ed.  735; 
East  St.  Louis  v.  Amy,  120  U.  S. 
600,  7  Sup.  Ct.  739,  30  L.  ed.  798; 
Louisiana  v.  St.  Martin's  Parish. 
Ill  U.  S.  716.  4  Sup.  Ct.  648,  28 
L.  ed.  574:  Kelley  v.  Milan.  127 
U.  S.  139,  8  Sup.  Ct.  1101.  7>1  L.  cd. 
11;  Norton  v.  Dyersbur^.  127  U.  S. 
160,  8  Sup.  Ct.  nil.  32  L.  ed.  85: 
United  States  v.  JeflFerson  Co.,  5 
Dill.  (U.  S.)  310:  Robinson  v.  Butte 
Co.,   43    Cal.   353:    State   v.   Daven- 


port, 12  Iowa  335;  Maddox  v.  Gra- 
ham, 2  Mete.  (Ky.)  56;  State  v. 
New  Orleans.  34  La.  Ann.  477; 
Flagg  V.  Palmyra.  12,  Mo.  440; 
Commonwealth  v.  Pittsburgh,  88 
Pa.  St.  (dd;  Morgan  v.  Common- 
wealth. 55  Pa.  St.  456;  Common- 
wealth v.  Pittsburg,  34  Pa.  St.  496: 
State  V.  Gates,  22  Wis.  210.  A  re- 
turn to  the  alternative  writ  that 
the  tax  has  been  levied  is  sufficient. 
Bass  v.  Taft.  137  U.  S.  458,  11  Sup. 
Ct.  154,  34  L.  ed.  752. 

■'50  Meriwether  v.  Muhlenburg 
County  Ct.,  120  U.  S.  354,  7  Sup. 
Ct.  563,  30  L.  ed.  653.  But  it  is 
difficult  to  reconcile  the  doctrine 
of  the  case  cited  with  the  cases 
which    hold    that    courts    can    not 


559 


MUNICIPAL  All)   15()NDS 


§1118 


federal  circuit  court  that,  where  IxjikIs  are  xoid.  l)Ut  a  judjuiuent 
by  default  has  been  rendered  upon  the  coupons,  the  municipality 
will  not  be  allowed  to  set  up  as  a  defense  to  a  mandamus  on  the 
juds^ment  that  there  is  no  statute  retiuirini;-  the  tax  to  be  levied. ^^ 
But  the  judi^inent  in  the  case  referred  to  was  reversed.''-  Some 
of  the  coiu-ts  will  not  issue  a  writ  where  the  liability  on  the 
bonds  is  doubtful  and  is  controverted  until  a  judgment  has  been 
obtained  on  the  bonds."'  nor  will  the  writ  issue,  except,  ])erhaps, 
to  put  the  officers  in  motion,  where  the  municipal  officers  have  a 
discretionary   power  as  to   the  mode  of  payment  or  the  like.^* 


levy  taxes.  Upon  the  general  sub- 
ject of  compelling  by  mandamus 
county  officers  to  levy  a  tax  to  pay 
municipal  bonds  or  subscriptions, 
see  United  States  v.  Lincoln  Co., 
5  Dill.  (U.  S.)  184;  United  States 
V.  Jefiferson  Co.,  1  McC.  (U.  S.) 
356;  Brodie  v.  McCabe,  33  Ark. 
690;  State  v.  Johnson  Co.,  12  Iowa 
237;  Shelby  Co.  v.  Cumberland  &c. 
R.  Co.,  8  Bush  (Ky.)  209;  Moore 
V.  New  Orleans,  32  La.  Ann.  726; 
McLendon  v.  Anson  Co.,  71  N.  Car. 
38;  Commonwealth  v.  Commission- 
ers, 32  Pa.  St.  218. 

51  Loague  v.  Taxing  Dist.,  36 
Fed.  149. 

52  Brownsville  v.  Loague,  129  U. 
S.  493;  9  Sup.  Ct.  327,  32  L.  ed. 
780.  See  Harshman  v.  Knox  Coun- 
ty, 122  U.  S.  306,  7  Sup.  Ct.  1171. 
30  L.  ed.  1152:  Hill  v.  Scotland  Co., 

32  Fed.  714;  Ralls  County  Ct.  v. 
United  States.  105  U.  S.  733,  26 
L.  ed.  1220;  Scotland  County  v. 
Hill.  132  U.  S.  107,  10  Sup.  Ct.  26. 

33  L.  ed.  261:  Moore  v.  Edgefield. 
32  Fed.  498:  Hill  v.  Scotland  Co.. 
32  Fed.  716.  As  to  the  rule  where 
the  municipal  officers  have  a  dis- 
cretionary power  as  to  the  mode 
of  paying  a  judgment,  see  Grand 
Co.  V.  King,  67  Fed.  202.     See  gen- 


erally upon  the  subject  of  manda- 
mus to  compel  levj'  of  taxes,  State 
V.  Yellowstone  Co.,  12  Mont.  503, 
31  Pac.  78;  ^^leyer  v.  Porter,  65 
Cal.  67;  County  Comrs.  v.  King, 
13  Fla.  451 ;  Wilkinson  v.  Cheatham, 
43  Ga.  258:  Bassett  v.  Barbin,  11 
La.  Ann.  672;  Wells  v.  Commis- 
sioners, 77  Md.  125,  26  Atl.  357,  20 
L.  R.  A.  89;  Wayne  County  &c. 
Bank  v.  Supervisors,  97  Mich.  630, 
56  N.  W.  944;  Pegram  v.  Cleveland 
Co..  64  N.  Car.  557;  State  v.  Beloit, 
20  Wis.  79;  State  v.  Tappan.  29 
Wis.  664,  9  Am.  Rep.  622. 

53  State  Board  v.  West  Point,  50 
]\Iiss.  638;  Commonwealth  v.  Pitts- 
burgh, 34  Pa.  St.  496;  State  v. 
Mayor  &c.,  52  Wis.  423.  See  gen- 
erally School  Dist.  V.  Bodenhamer, 
43  Ark.  140:  People  v.  Clark  Co., 
50  111.  213;  Coy  v.  Lyons  City,  17 
Iowa  1,  85  Am.  Dec.  539,  and  note; 
State  V.  Clay  Co.,  46  Mo.  231; 
Mansfield  v.  Fuller,  50  Mo.  338; 
Leach  v.  Fayetteville,  84  N.  Car. 
829. 

54  Board  of  Commissioners  v. 
King,  67  Fed.  202.  See  generally 
as  to  the  right  to  exercise  an  op- 
tion. Queen  v.  Southeastern  R.  Co., 
4  H.  L.  Cas.  471;  State  v.  Union. 
43  N.  T.  L.  518.     As  to  the  exercise 


5  1118 


RAILROADS 


560 


Where  there  is  a  ju(l.c:ment  rendered  by  a  eourt  possessing  juris- 
diction adjudging-  the  bonds  to  be  vaHd,  the  municipality  cannot 
set  up  the  invabdity  of  the  bonds  as  a  defense  to  the  action  for 
mandanuis."'"'  The  Supreme  Court  of  the  United  States  has  modi- 
iied.  if  not  denied,  the  doctrine  of  some  of  the  earlier  cases,  for 
it  has  held  that,  where  the  bondholder  goes  behind  the  judgment 
upon  some  of  the  points  adjudged,  he  cannot  successfully  aver 
that  the  judgment  conclusively  establishes  the  validity  of  the 
i)onds.'''^  The  bondholder  entitled  to  money  collected  to  pay 
bonds  and  in  the  hands  of  a  municipal  officer  can  compel  its 
])ayment  to  him  iiy  mandamus/''  for  in  such  a  case  there  is  a 
jjeremptory  duty  to  ])ay  the  money  over  to  the  party  entitled  to 
it.  It  is  held  by  the  Supreme  Court  of  the  United  States  that, 
v^-here  the  specific  tax  is  insufficient  to  pay  the  bonds,  the  holder 
is  entitled  to  ])ayment  out  of  the  general  funds  of  the  muni- 
cipality."'^ but  it  seems  to  us  this  cannot  .be  the  rule  where  the 
statute  under  wliicli  the  bonds  are  issued  clearly  and  unequivo- 
cally confines  the  right  to  payment  from  a  specific  fund.^''  The 
right  of  a  l)ona  fide  holder  of  bonds  to  compel  the  municipal 
officers  to  levy  the  necessary  tax  is  not  defeated  by  the  repeal 
of  the  statute  under  which  the  bonds  were  issued.""    Where  the 


of  discretionary  powers,  United 
States  v.  Seaman.  17  How.  (U.  S.) 
225.  15  L.  ed.  226:  Heine  v.  T.evee 
Commissioners,  19  Wall.  (U.  S.) 
655,  22  T..  ed.  223;  United  States  v. 
Lamont.  155  U.  S.  303,  15  Sup.  Ct. 
97.  39  L.  ed.  160. 

•">•''  United  States  v.  New  Orleans, 
08  U.  S.  381,  25  L.  ed.  225;  Ralls 
County  Ct.  v.  United  States,  105 
U.  S.  72>i,  26  L.  ed.  1220;  Loaguc 
V.  Brownsville,  36  Fed.  149;  State 
V.  Gates.  22  Wis.  210.  See  Boyd 
V.  .Alabama.  94  U.  S.  645.  24  T..  ed. 
302. 

'"'6  Brownsville  v.  Loague,  129  U. 
S.  493,  9  Sup.  Ct.  327,  32  L.  ed.  780. 
citinjsr  Norton  v.  Brownsville,  129 
U.  S.  479,  9  Sup.  Ct.  322,  32  L.  ed. 


774.  and  distinj^uishin^  Ilarshman 
V.  Knox  County,  122  U.  S.  306,  7 
Sup.  Ct.  1171,  30  L.  ed.  1152. 

•^- State  V.  CraiR,  69  :\Io.  565; 
State  V.  McCrillus,  4  Kans.  250.  96 
Xm.  Dec.  169. 

■"'S  United  States  v.  Clark,  96  U.  S. 
i7.  24  L.  ed.  696;  Olcott  v.  Super- 
visors. H.  Wall.  (U.  S.)  678.  21  I., 
ed.  382. 

•"'^  United  States  v.  Macon  Coun- 
ty. 99  U.  S.  582.  25  L.  ed.  331;  Quill 
V.  Indianapolis.  124  Ind.  292,  299. 
23  N.  E.  788.  7  L.  R.  A.  681;  Spidcll 
V.  Johnson,  128  Ind.  235.  238.  239. 
25  N.  E.  889:  ante,  §  1088. 

CO  Deere  v.  Rio  Grande  County. 
33  Fed.  823.  See  also  Seibert  v. 
Lewis,    122   U.    S.   284,   7   Sup.    Ct. 


561  MUNICIPAL  AID  BOXD§  §  1119 

lionds  ha\e  l)een  held  invalid  in  a  proceeding-  for  writ  of  manda- 
mus, the  judgment  concludes  the  plaintiff  from  successfully  pros- 
ecuting an  action  on  the  l)onds  themselves/'^  but  the  question  of 
the  validity  of  the  bonds  must  be  one  which  was  litigated,  or 
which  might  have  been  litigated,  in  the  mandamus  proceedings, 
and  there  must  be  jurisdiction  of  the  subject  matter  and  of  the 
])erson  in  order  to  make  the  judgment  conclusive. 

§  1119.  Remedies  of  bondholders — Compelling  levy  of  tax. — 
The  courts  will  not  attempt  to  compel  municipal  officers 
to  do  that  which  they  have  no  power  to  do  under  the  law.''- 
where  the  power  of  a  municipality  is  specifically  limited  to  a 
given  percentage  on  all  taxable  property,  and  it  is  confessed  by 
the  demurrer  to  the  answer  that  the  entire  sum  realized  from 
the  tax  is  required  for  the  proper  maintenance  of  the  municipal 
government,  a  mandamus  will  not  be  awarded. **"  It  is  held  that 
the  court  will  not  itself  appoint  officers  to  levy  the  tax.*'*  This 
doctrine  proceeds  upon  the  ground  that  the  duty  of  levying 
taxes  is  not  judicial,  and   cannot  be  exercised  by  the   courts. ^^ 

1190,  30  L.  ed.  1161:  Peoria  &c.  R.  Whitesides,  30  S.  Car.  579,  9  S.  E. 

Co.  V.  People,  116  111.  401,  6  N.  E.  661,  3  L.  R.  A.  Ill,  and  note. 
497.  63  Clay    County    v.    McAleer.    115 

61  Block  V.  Commissioners,  99  U.  U.  S.  616,  6  Sup.  Ct.  199,  29  L.  ed. 

S.    686,    25    L.    ed.    491:    Louis    v.  482.     See  ^IcAleer  v.  Clay  Co.,  42 

Brown   Tp..    109   U.   S.    162,   3    Sup.  Fed.  665;   Board  of  Commissioners 

Ct.  92.  27  L.  ed.  892;   Corcoran  v.  v.  King,  61  Fed.  202;  United  States 

Chesapeake  &c.  Canal  Co.,  94  U.  S.  v.  Miller  Co.,  4  Dill.  (U.  S.)  233. 
741,  24  L.  ed.  190.  64  Heine    v.    Levee    Commission- 

6-  Supervisors    v.    United    States.  ers.  19  Wall.  (U.  S.)  655,  22  L.  ed. 

18   Wall.    (U.   S.)   71,  n,  21    L.   ed.  223;   Rees  v.  Watertown,   19  Wall. 

771:  United  States  v.  IMacon  Coun-  (U.  S.)   107,  22  L.  ed.  12;  Board  of 

ty,    99    U.    S.    582,    25    L.    ed.    331:  Commissioners    v.    King,    dl    Fed. 

^facon    County   v.    Huidekoper.    99  202,   205;   O'Brien  v.   Wheelock,   78 

U.    S.    592.    note,    25    L.    ed.    Z?>Z\  Fed.  673;  Pierce  Co.  v.  Merrill,   19 

Brownsville   v.    Loague,    129    U.    S.  Wash.  178,  52  Pac.  854. 
493,  9  Sup.   Ct.  327,  32   L.  ed.  780.  6-^  Thompson     v.     Allen     County, 

See  United  States  V.  Clark,  96  U.  S.  115    U.    S.    550,   6    Sup.    Ct.    140,   29 

■Zl,  24   L.  ed.  696;   Butz  v.   ^^lusca-  L.  ed.  472;  Rees  v.  Watertov.n,   19 

tine.  8  Wall.  (U.  S.)  575,  19  L.  ed.  Wall.  (U.  S.)  107,  124,  22  L.  ed.  11: 

490;    Board    of    Commissioners    v.  ]\Ieriwethe;-    v.    Garrett,    102   U.    S. 

King,    67    Fed.   202,    205;    State   v.  472,   518,   26   L.   ed.    197.     But   see 


§  1119  •         HAir.ROADS  562 

The  decisions  estahlish  tlie  rule  as  we  have  stated  it.  l)ut  it  seems 
to  us  that  courts  have  power  to  do  complete  justice  and  to  make 
their  writs  effective,  and  that,  where  there  is  a  clear,  unques- 
tic)nable  ri^ht  to  relief,  they  have  jxtwer  to  grant  it.  even  though 
they  may  be  coiupelled  to  appoint  ministerial  agents  to  perform 
the  duties  of  municipal  officers  who  refuse  to  perform  the  duties 
enjoined  on  them  In-  law.  The  power  to  "do  justice,  and  that 
not  by  halves,"  is,  as  we  believe,  ample  foundation  for  the  au- 
thority to  provide  for  the  assessment  and  collection  of  taxes 
where  there  is  a  clear  right  in  the  creditor  and  a  peremptory 
duty  resting  on  the  municii)ality  and  its  officers.  The  j^rinciple 
which  empowers  a  court  to  appoint  receivers  and  take  control 
of  property,  is,  as  we  conceive,  broad  enough  to  authorize  courts 
to  appoint  officers  or  agents  to  levy  and  collect  a  tax.*'*'  Where 
there  is  no  statute  authorizing  a  tax.  then,  of  course,  the  courts 
are  powerless,  but  where  there  is  a  statute  and  a  refusal  to  per- 
form official  duties  required  by  law,  courts  ought  to  have  j)ower 
to  award  complete  relief.  Giving  force  to  a  state  statute,  it  has 
been  held  that,  where  the  municipal  officers  refuse  to  act,  in 
ol)edicnce  to  peremptory  writ  of  mandamus,  a  marshal  or  com- 
missioner may  be  appointed  to  act.®^  This  power  should,  as  we 
have  substantially  said,  reside  in  the  courts,  otherwise  cases 
might  arise  in  which  j^ayment  might  be  delayed,  or  possibly 
avoided  by  a  municipal  corporation,  and  justice  defeated.  Offi- 
cers who  refuse  to  obey  a  writ  of  mandate  may.  it  is  true,  be 
punished  as  for  contempt,  but  punishment  for  contempt  may 
not  always  be  an  adequate  remedy  for  the  enforcement  of  jxiy- 
ment  of  the  bonds.  The  duty  to  levy  taxes  to  pay  bonds  is  ordi-* 
narily  a  continuing  one,  and  if  one  or  more  levies  will  not  pro- 
duce a  sum  sufficient  to  pay  the  bonds,  the  municipal  officers 
may  be  compelled  to  make  another  levy.*"'^ 

Aleriwcther  v.  Aluhlenburg  County  County.    115   U.   S.   550.   6   Sup.    Ct. 

Ct..   120  U.  S.  354,  7  Sup.  Ct.  563.  140.  29  L.  ed.  472. 

30  L.  ed.  653.  e-  Supervisors  v.  Rop:crs.  7  Wall. 

66  Garrett    v.    Memphis,    5     Fed.  (U.  S.)  175,  19  L.  ed.  162:  Lansing 

860.  and  cases  cited.     See  Thomp-  v.  County  Treasurer.  1  Dill.  (U.  S.). 

son   V.   Allen   Co.,   13   Fed.  97.  and  522. 

authorities   cited    in    the.  dissenting  68  ggnbow  v.  Iowa   City,  7  Wall, 

opinion     in     Thompson     v.     Allen  (U.  S.)  313,  19  L.  ed.  79;  Robinson 


')63  MFNTCIPAL  AID  BONDS  §  1120 

§1120  (918a).  Miscellaneous.— It  is  held  by  the  Supreme 
Court  of  the  United  States  in  a  recent  case  that  county  auditors 
and  treasurers,  being  the  instruments  employed  by  the  state 
legislature  to  assess  and  collect  taxes,  may  be  compelled  by  man- 
damus to  levy  a  tax  to  pay  a  judgment  on  towiisliip  l)onds  not- 
withstanding the  township  has  been  abolished  by  an  amendment 
to  the  state  constitution,  and  its  corporate  agents  removed.*''' 
Such  a  proceeding  is  not  a  suit  against  the  state  within  the 
meaning  of  the  inhibition  of  the  Constitution  of  the  United  States 
even  though  such  officers  have  been  forbidden  by  the  state  legis- 
lature to  exercise  such  power  ;  and  the  exercise  by  a  state  of  its 
right  to  alter  or  destroy  its  municipal  corporation  is  ineffectual 
to  destroy  the  obligation  of  valid  municipal  contracts.'^"  \\'here 
bonds  in  aid  of  a  railroad  had  been  issued  under  an  election  held 
valid  by  the  Supreme  Court  of  the  state  and  the  county  had  paid 
interest  thereon  for  a  number  of  years,  it  was  held  that  they 
were  valid   in  the  hands  of  one  who  had  purchased  them   for 

V.  Butte  Co.,  43  Cal.  353;  State  v.  336,  6  Sup.  Ct.  764,  29  L.  eel.  904; 
Madison,  15  Wis.  30.  As  to  the  Ninth  National  Bank  v.  Knox  Co., 
power  of  the  federal  courts,  see  i7  Fed.  75.  Evidence  on  part  of 
Welch  V.  St.  Genevieve,  1  Dill.  (U.  plaintiff,  Hannibal  v.  Fauntleroy. 
S.)  130;  United  States  v.  Musca-  105  U.  S.  408,  26  L.  ed.  1103;  Mas- 
tine  Co.,  2  .'\bb.  (U.  S.)  53;  Riggs  sachusetts  &c.  Co.  v.  Cherokee,  42 
V.  Johnson  County,  6  Wall.  (U.  S.)  Fed.  750.  See  generally  ^Morgan 
166,  18  L.  ed.  768.  As  to  the  ne-  County  v.  Allen,  103  U.  S.  498,  26 
cessity  of  first  reducing  the  claim  L.  ed.  498;  Smith  v.  Railroad  Co., 
on  the  bonds  to  judgment,  see  99  U.  S.  398,  25  L.  ed.  437;  Hous- 
Greene  County  v.  Daniel,  102  U.S.  ton  v.  People.  55  111.  398;  People 
187,  26  L.  ed.  99,  3  Am.  &  Eng.  R.  v.  Jackson  Co.,  92  111.  441;  Lamoille 
Cas.  105.  See  generally  East  St.  Valley  R.  Co.  v.  Fairfield,  51  Vt. 
Louis   V.  Underwood,    105    111.   308.  257. 

As    to    presentation    of    bonds    for  ^9  Graham  v.    Folsom,   200  U.   S. 

allowance,  see  Greene  Co.  v.  Dan-  248,  26  Sup.  Ct.  245,  50  L.  ed.  464. 

iel,   102  U.   S.   187,  26  L.   ed.  99,  3  7o  Graham   v.    Folsom,  200  U.    S. 

Am.  &  Eng.  R.  Cas.  105;  Commis-  248,  26  Sup.  Ct.  245,  50  L.  ed.  464. 

sioners'    Court    v.    Rather,    48    Ala.  See  also  Mt.  Pleasant  v.  Beckwith, 

433.     Matters    of   pleading.    People  100  U.   S.  514,  25    L.  ed.  699;   Mo- 

v.    Colorado    &c.    R.    Co.,    42    Fed.  bile    v.    Watson,    116    U.    S.    289,    6 

638;  United  States  v.  Elizabeth,  42  Sup.   Ct.  398,  29  L.  ed.  620;  Shap- 

Fed.   45.     Actions   on   bonds.   New  leigh  v.  San  Angelo,  167  U.  S.  646, 

Providence    v.    Halsey,    117    U.    S.  17  Sup.  Ct.  957,  42  L.  ed.  310. 


§  1120  RAILROADS  564 

value  and  in  i^txxl  faith,  without  notice  of  any  defect  or  illegality, 
and  that  taxes  levied  and  collected  by  the  county  to  pay  the 
interest  thereon,  in  compliance  with  law,  were  held  by  the  county 
treasurer  as  his  trustee,  and  it  was  the  duty  of  such  treasurer  to 
pay  over  the  same  on  presentation  of  the  coupon."^  In  another 
recent  case  bonds  were  issued  under  statutory  authority  to  pay 
a  county  subscription  for  stock  of  a  railroad  company  and  the 
statute  directed  an  annual  levy  of  taxes  sufficient  to  pay  the 
interest  on  such  bonds,  and  principal  when  it  should  become  due, 
provided  that  the  com])any  should  make  a  ])reliminary  survey 
of  its  route  within  a  year  after  the  passage  of  the  statute  and 
should  commence  work  in  good  faith  within  the  next  year  and 
])erform  each  year  thereafter  one-fifth  of  the  necessary  work  re- 
quired to  comi)lete  the  road.  It  was  held  that  the  county's  lia- 
bility to  levy  the  tax  did  not  depend  ui)()n  the  performance  of 
the  conditions  of  such  ])roviso.  but  on  the  answer  to  the  inquiry 
as  to  whether  the  bonds  had  been  so  issued  as  to  bind  the 
countv.'-  It  was  also  held  in  the  same  case  that  as  the  county 
judge  in  Kentucky,  was  the  presiding  officer  of  the  fiscal  court 
and  general  business  agent  of  the  comity,  and  the  legislature 
had  authorized  such  court  to  subscribe  for  such  stock,  it  was 
competent  for  such  court,  after  having  determined  to  make  the 
subscription,  to  delegate  to  the  county  judge  the  ministerial 
duties  involved  ;  that  the  fact  that  the  bonds  were  delivered  be- 
fore any  work  was  done,  though  in  violation  of  the  statute,  did 
not  necessarilv  render  them  void  ;  and  that  where  the  county  had 
appeared  and  contested  the  regularity  an<l  sufficiency  of  the  pro- 
ceedings for  the  issuance  of  such  bonds  in  a  state  court  in  a  suit 
to  comi)el  their  issuance  and  then  in  a  federal  court  in  a  suit  to 
lecover  on  the  cou])ons.  brought  by  a  ])rivy  to  the  ])laintilf.  and 
the  whole  issue  was  adjudged  to  be  valid,  the  county  was 
esto])ped  by  such  decree  from  thereafter  contesting  the  validity 
of  the  bonds  in  a  proceeding  to  conij^el  the  levy  of  a  tax  to  pay 

■'Tollman    v.    Board    of    Comrs.  Sup.  Ct.  11.  40  b.  c-d.  1(.5:  Coler  v. 

of  Onslow  Co..  140  Fed.  89.  artirmed  Board.  89   Fed.  257.  260. 

in    145  Fed.  753.     See  also  McKee  '2  Estell  Co.  v.  Embry.   144  Fed. 

V.    Lamon.    159   U.    S.   317.   322.    16  913. 


565  MrXICII'AIi  AID  BONDS  §  1120 

iheni.''  It  has  also  been  held  that  a  board  of  county  commis- 
sioners authorized  1)\-  statute  to  sue  and  be  sued,  to  make  con- 
tracts and  hold  such  personal  property  as  ma_\'  be  necessary  in 
the  exercise  of  their  powers,  and  to  make  such  orders  for  the 
disposition  or  use  of  their  property  as  the  interest  of  the  inhabi- 
tants ma}-  require,  has  power  to  compromise  a  suit  by  a  railroad 
(.ompany  to  compel  the  (leli\er_\-  of  county  railroad  aid  bonds  b}' 
i.urrenderino-  the  right  to  stock  of  the  railroad  company  of  com- 
])aratively  little  \alue  in  consideration  of  the  company's  sur- 
render of  the  right  to  recei\e  a  substantial  i)ortion  of  the  bonds 
which  the  county  had  bound  itself  to  deli\er.'* 

"•■'•  In  Board  of  Coiiirs.  of  Onslow  wliicli    was    lield    merely    directory, 

Co.    V.    Tollman,    145    Fed.    753,    it  provided  that  they  should  be  deliv- 

was  held  that  the  bonds  were  prop-  ered  ])y  a  board  of  trustees  therein 

erly  executed  by  the  county's  board  provided   for. 

of  commissioners,  and  that  the  de-  '■*  Board    of    Comrs.    of    Onslow 

livery   by    such    board    did    not   in-  Co.  v.  Tollman,   145   Fed.  753. 
validate  them  although  the  statute. 


CHAPTER  XXX \^ I. 


LOCATION  OJ-    THI-:   ROAD 


Sec. 

1125.  Choice  of  location— Hmv  de- 

termined. 

1126.  Circular  or  belt   n.ad. 

1127.  Discretion  of  companj-  in  de- 

termining   location  —  How 
exercised. 

1128.  Determination  of  ((uestion  of 

necessity   and   convenience 
of  proposed   railroad. 

1129.  Conflicting  grants  —  Priority 

of  location. 

1130.  Location  of  road  upon  prop- 

erty    already     devoted     to 
public   use. 

1131.  Location  on  abandoned  right 

of  way. 

1132.  Branch  and  lateral  roads. 

1133.  Exempt  property. 

1134.  Preliminary  survey. 

1135.  Perfecting  location — Map  of 

proposed  route. 


Sec. 

1136.  EfTect  of  location— When  lo- 

cation   is   complete. 

1137.  Construction   of  "from"   and 

"to"  —  Terminus      "at      or 
near." 

1138.  Contracts    to    influence    loca- 

tion. 

1139.  Change    of   location  —  When 

authorized. 

1140.  Change      of      location      after 

first      location      is      finally 
completed. 

1141.  /\bandonment    of   location  — 

Efifect. 

1142.  -Xbandonment — What  consti- 

tutes —  When      and      how 
shown. 

1143.  Relocation  of  stations. 

1144.  Right  of  individual  to  enjoin 

change  of  depot  or  station. 


§1125  (919).  Choice  of  location — How  determined. — The 
legislature  may  fix  the  exact  location  of  the  road  of  a  company 
incorporated  hy  special  charter,^  or  it  may  merely  define  the  gen- 
eral  route  and   termini   and   leave  the   company   to   exercise   its 


1  Mississippi  &c.  R.  Co.  v.  Cross, 
20  Ark.  443:  Coney  Island  &c.  R. 
Co..  In  re,  12  Hun  (N.  Y.)  451. 
In  Macon  &c.  R.  Co.  v.  Gil)son,  85 
Ga.  1,  11  S.  E.  442.  43  Am.  &  Eng. 
R.  Cas.  318,  21  Am.  St.  135,  it  was 
held  that,  under  a  reserved  power 
to  amend  the  charter  of  a  railroad 
company,  the  legislature  could  re- 
quire   it    to   build    its    road    upon    a 


designated  route,  by  an  act  passed 
after  the  company  had  exercised 
the  discretion  conferred  upon  it  by 
its  original  charter,  to  locate  its 
road,  but  before  it  had  begun  its 
construction.  As  to  meaning  of 
term  "locate"  see  Kensington  Ry. 
Co.  V.  Moore,  115  Md.  36,  80  Atl. 
614.  Ann.  Cas.  1912C,  1309,  and 
other  cases  there  cited  in  note. 


566 


567 


LOCATION   OF  THE   ROAD 


§  1125 


discretion  as  to  the  location  of  the  road  between  the  points 
named.  Indeed,  it  may  even  authorize  the  company  to  select 
both  the  g'eneral  and  particular  location  and  termini  of  the  road. 
If  the  charter  does  not  designate  the  exact  route,  but  gives  the 
company  a  general  authority  to  build  its  road  between  certain 
points,  the  company  is  invested  with  full  discretion  as  to  the 
location  of  its  road  within  those  limits,  and  maps  or  plans  that 
were  exhibited  to  the  legislature  by  which  the  charter  was 
granted,  but  which  are  not  referred  to  in  the  charter,  are  not  ad- 
missible to  prove  the  legislative  intent  in  granting  it.-  Where 
the  route  and  termini  are  stated  in  general  terms  by  the  charter 
its  language  must  be  given  a  reasonable  construction  with  refer- 
ence to  the  subject-matter  of  the  grant,  and  the  purposes  to  be 
attained.'*  If  the  road  is  required  to  run  through  several  towns, 
it  is  not  essential  that  it  should  pass  through  them  in  the  order 
luimed.*  And  it  is  held  that  the  requirement  that  one  terminus 
of  the  road  shall  be  at  or  near  a  certain  point  leaves  a  large  dis- 
cretion to  be  exercised  by  the  railroad  company  in  locating  its 


~  Boston  &c.  R.  Co.  v.  Midland 
R.  Co.,  1  Gray  (Mass.)  340;  Com- 
monwealth V.  Fitchburg  R.  Co.,  8 
Cush.  (Mass.)  240:  Reg.  v.  Cale. 
donian  R.  Co.,  16  Q.  B.  19;  North 
British  R.  Co.  v.  Tod,  5  Bell's  App. 
Cas.  (Scotland)  184.  The  fact  that 
plans  and  maps  are  referred  to  in 
the  charter  for  one  purpose  does 
not  make  them  admissible  for  an- 
other. Reg.  V.  Caledonian  R.  Co., 
16  Q.  B.  19.  That  the  company 
may  determine  the  route  in  its  dis- 
cretion, see  also  Chicago  &c.  R. 
Co.  V.  Dunbar,  100  111.  110. 

3  Cleveland  &c.  R.  Co.  v.  Speer, 
56  Pa.  St.  325,  94  Am.  Dec.  84.  All 
railroad  charters  that  do  not  di- 
rectly express  the  contrar}-  must 
be  taken  to  allow  the  exercise  of 
such  a  discretion  in  the  location 
of   the    route    as    is    incident   to   an 


ordinary  practical  survey,  but  not 
deviating  substantially  from  the 
course  and  direction  indicated  by 
the  charter.  Southern  Minnesota 
R.  Co.  V.  Stoddard,  6  Minn.  150. 
The  selection  made  by  the  officers 
in  the  exercise  of  the  discretion 
given  them  by  the  charter  should 
not  be  disturbed  unless  they  have 
clearly  erred.  Hentz  v.  Long  Island 
R.  Co.,  13  Barb.  (N.  Y.)  646.  See 
also  Newcastle  &c.  R.  Co.  v.  Peru 
&c.  R.  Co.,  3  Ind.  464;  Baldwin  v. 
Hillsborough  &c.  R.  Co.,  1  Ohio 
Dec.  532;  Frankford  &c.  Tp.  Co. 
v.  Philadelphia  &c.  R.  Co.,  54  Pa. 
345.  93  Am.  Dec.  708.  Pennsylva- 
nia R.  Co.'s  Appeal,  116  Pa.  St. 
55.  8  Atl.  914. 

■*  Commonwealth  v.  Fitchburg  &c. 
R.  Co.,  8  Cush.  (Mass.)  240. 


S  -1-126  RAILROADS  568 

road,  the  exercise  of  which  will  not  be  reviewed   unless  it  has 
clearly  exceeded  its  just  limits  or  acted  in  l)ad  faith.'' 

§1126  (919a).  Circular  or  belt  road. — The  question  has 
arisen  in  several  cases  as  to  whether  a  circular  or  belt  road  may 
be  organized  and  located  under  a  statute  providin,^-  that  the 
points  from  which  and  to  which  it  runs  should  be  stated.  It  is 
held  in  Tennessee,  under  such  a  statute  that  such  a  road,  embrac- 
ing- within  itself  a  reasonable  area,  such  as  the  limits  of  a  city, 
is  authorized,  and  may  be  organized  and  located,  although  its 
route  is  circular,  or  in  the  shape  of  a  polygon,  and  although  it 
begins  and  ends  at  the  same  place,  if  the  several  connecting 
routes  and  their  termini  are  duly  stated.""'  So,  it  is  held  in  Ohio, 
under  a  statute  authorizing  a  road  between  the  points  named  in 
the  articles  of  incorporation,  commencing  at  or  within,  and  ex- 
tending to  or  into,  any  city,  village,  town,  or  place  named  as  its 
terminus  a  road  may  be  organized  and  located  having  both  of  its 
terminal  points  within  the  same  city.^  Other  authorities  are  to 
the  same  efifect.^ 

§  1127   (920).     Discretion  of  company  in  determining  location 

How   exercised. — The   general   laws   for   the   incorporation  of 

railroads  that  have  been  passed  in  most  of  the  states,  and  in 
England,  give  a  company  incorporated  thereunder  discretionary 
power  to  select  its  route  between  charter  points,  and  to  ap- 
propriate land  and  establish  grades  subject  to  restrictions  therein 
contained."     This  discretion  must  be  exercised  l)y  the  company. 

s  Fall   River   &c.   Co.   v.   Old   Col-  e  Collier    v.    Union    R.    Co..    113 

ony   &c.    R.    Co.,    5    Allen    (Mass.)  Tcnn.  96.  83  S.  W.  155. 

221;    Georgia    R.    &c.    Co.   v.    Mad-  -  State  v.  Union  Terminal  R.  Co.. 

dox,  42  Ga.  315,  42  S.  E.  315,  3l7  72  Ohio  455.  74  N.  E.  642. 

(quoting  text).     See  also  Collier  v.  ^  Sec  Rridvvell  v.  Gate  City  Ter- 

Union  R.   Co.,   113  Tenn.  96,  83  S.  minal    Co..    127    Ga.    520,    56    S.    E. 

W.  155;  Bridwell  v.  Gate  City  Ter-  624:  State  v.  Martin,  51   Kans.  462. 

minal    Co.,    127   Ga.    520,    56    S.    E.  33  Pac.  9:  Long  Branch  Com'rs  v. 

624;  Pedrick  v.  Raleigh  &c.  R.  Co.,  West    End.    R.    Co..    29    N.    J.    Eq. 

143  N.  Car.  485.  55  S.  E.  877.     And  566:  National  Docks  R.  Co.  v.  Ccn- 

see  Hansen  v.  Poison  Logging  Co.,  tral   R.   Co.,  32   N.  J.   E(|.   755. 

81  Wash.  597,  142  Pac.  1169  (loca-  "Chicago  &c.  R.   Co.  v.  Dunbar, 

tion   of   road   "as   near   as   practica-  100  111.  110.     The  railroad  company 

ble"  to  a   certain   place).  niay  use  its  discretion  in   the  loca- 


569  LOCATIOX  OF  THE  ROAD  §112^ 

cMkI  can  not  be  controlled  by  previous  acts  or  contracts  of  its 
agents.'"  \\'here  the  duty  of  locating  the  road  is  imposed  by 
statute  upon  the  president  and  directors  of  the  company,  an  ex- 
ercise of  discretion  on  their  part  is  called  for  which  can  not  l^e 
delegated.  And  a  location  made  by  an  executive  committee 
pro\ided  for  in  the  l)y-laws  of  the  company  is  inoperative,  and 
can  not  l)e  ratified  b\  the  company  so  as  to  make  it  valid  as 
against  the  rights  of  another  compan}-  which  have  attached  to 
the  propert}-  in  question  prior  to  such  ratification.^^  The  ex- 
ercise of  this  discretion  by  the  company  will  not  be  disturbed 
except  where  there  is  a  plain  case  of  abuse  of  it.'-  It  may  be 
said  generally,  however,  that  a  construction  of  a  charter  which 
would  give  the  railroad  company  absolute  discretion,  uncon- 
trolled by  the  courts,  to  locate  its  line  or  stations  where  its  in- 
terests or  favoritism  might  suggest,  without  regard  to  the  public 
interest,  would  be  contrary  to  public  policy,  and  should  not  be 


til  in  (if  tlie  line  wliere  it  is  not  also  Bridwell  v.  Gate  City  Ter- 
definitel}-  located  in  the  charter.  minal  Co.,  127  Ga.  520,  56  S.  E. 
Tennessee  Cent.  R.  Co.  v.  Camp-  624.  628  (citing  text). 
bell.  109  Tenn.  655,  IZ  S.  W.  112.  "  Weidenfeld  v.  Sugar  Run  R. 
1"  The  act  of  the  engineer  in  Co..  48  Fed.  615.  See  also  Wash- 
making  a'  preliminary  survey  and  ington  &c.  R.  Co.  v.  Coeur  D'Alene 
staking  off  the  line  of  the  proposed  &c.  Nav.  Co..  160  U.  S.  101,  16  Sup. 
road  does  not  constitute  a  binding  Ct.  239,  40  L.  ed.  355;  Golconda 
location.  Williamsport  &c.  R.  Co.  Northern  Ry.  v.  Gulf  Line  &c.  R. 
V.  Philadelphia  &c.  R.  Co.,  141  Pa.  R.,  265  Til.  194,  106  N.  E.  818,  Ann. 
St.  407.  21  Atl.  645,  12  L.  R.  A.  220,  Cas.  1916A,  833;  Black  v.  Chicago 
and  note.  See  also  Kauffman  v.  &c.  R.  Co.,  243  111.  534,  90  N.  E. 
Pittsburgh   &c.  R.   Co.,  210  Pa.  St.  1075. 

440,  60  Atl.  2.     And  an  agreement  '^-  Colorado  &c.  R.   Co.  v.  Union 

between    the    land-owner    and    the  Pac.  R.  Co.,  41  Fed.  293;  Fall  River 

attorney   of  the   company   that   the  Iron  Works  v.  Old  Colony  R.  Co., 

road   shall  be  of  a  less  width  than  5     Allen     (]\Iass.)     221;     Southern 

is  afterward   fixed  upon  by  the  di-  j\Iinn.  R.  Co.  v.  Stoddard,  6  Minn, 

rectors  in  making  the  location  does  150;   Hentz  v.  Long  Island  R.   Co., 

not   control   the   width   of  the   land  13    Barb.    (X.    Y.)    646;    People    v. 

which    the    company   is    authorized  New  York  Central  R.  Co.,  74  N.  Y. 

to  condemn.     Central   ]\Iills   Co.   v.  302;   Walker  v.   Mad   River   &c.   R. 

Now  York   &c.    R.   Co..   127   Mass.  Co.,  8   Ohio  38;   Cleveland   &c.   R. 

lil.     See  generally  Chicago  &c.  R.  Co.  v.  Speer,  56  Pa.  St.  325.  94  \\x\. 

Co.  V.  Dunbar.  100  111.  110;  and  sec  Dec.  84;   Parke's  Appeal,  64  Pa.  St. 


§  1127 


RAILROADS 


570 


adopted  if  any  other  construction  he  possihle.' •  Wliere  a  statute 
ogives  the  railroad  company  power  to  carry  its  tracks  over  or 
under  a  pu])lic  hig^hway.  "as  may  he  found  most  expedient,"  it 
is  held  that  the  railroad  comi)any  is  clothed  with  authority  to 
determine  the  expediency  of  the  different  modes  of  crossing-;  and 
an  indictment  against  the  company  for  maintaining  a  nuisance 
can  not  he  sustained  hy  proof  that  it  erected  a  hridge  to  carry 
the  highway  over  its  tracks  when  it  would  have  heen  more  ex- 
pedient to  carry  the  railroad  tracks  over  the  highway.  When  the 
railroad  company  has,  in  good  faith,  determined  the  question  as 
to  the  relative  expediency  of  the  different  modes  of  crossing,  its 
determination  is  final,  and,  even  though  erroneous,  can  not  he 
reversed  by  a  jury.^^  And  where  the  line  is  located  upon  a  direct 
and  convenient  route  between  the  termini,  the  fact  that  another 
route  is  available,  for  which  land  could  be  purchased,  does  not 
prove  that  land  sought  to  be  taken  by  condemnation  proceed- 
ings is  not  necessary  for  the  use  of  the  petitioner.^'"     A  railroad 


137:  Struthers  v.  Dunkirk  &c.  R. 
Co..  87  Pa.  St.  282;  Ford  v.  Chi- 
cago &c.  R.  Co..  14  Wis.  609.  80 
Am.  Dec.  791.  See  also  State  v. 
District  Court.  34  Mont.  535.  88 
Pac.  44.  Where  the  contract  for 
a  right  of  way  releases  a  strip  of 
land  of  a  certain  width  through  a 
certain  tract  of  land,  and  no  more 
definitely,  it  vests  in  the  railroad 
company  the  right  to  select  the 
particular  location.  Burrow  v. 
Terre  Haute  &c.  R.  Co.,  107  Ind. 
432,  8  N.  E.  167;  post,  §  1220. 

1^  Northern  Pacific  R.  Co.  v.  Ter- 
ritory, 3  Wash.  Ter.  303,  13  Pac. 
604.  See  also  Kansas  City  &c.  R. 
Co.  V.  State,  106  Tex.  249,  163  S.  W. 
582. 

"  People  v.  New  York  &c.  R. 
Co.,  74  N.  Y.  302;  New  York  &c. 
Co.  V.  People,  12  Hun  (N.  Y.)  195. 

15  Colorado  Eastern  R.  Co.  v. 
Union    Pac.    Co.,    41    Fed.    293.    44 


Am.  &  Eng.  R.  Cas.  10.  In  this 
case  the  C.  E.  Co.  sought  to  appro- 
priate for  storehouses,  switches, 
turnouts,  and  the  like,  land  held 
by  the  U.  P.  Co.  for  its  own  use 
at  such  time  as  it  should  be  re- 
quired in  caring  for  its  increasing 
business.  It  was  the  only  land 
available  for  switching  purposes 
along  the  line  of  the  C.  E.  Co.'s 
road  as  located,  but  it  appeared 
that  by  making  a  detour  to  the 
north  other  suitable  lands  could  be 
reached.  The  court  held  that  the 
location  of  its  road  upon  these 
lands  was  within  the  discretion 
given  to  the  C.  E.  Co.  by  its  char- 
ter. See  also  State  v.  District 
Court.  34  .Mont.  535,  88  Pac.  44. 
But  where  the  termini  are  stated 
in  the  articles  or  charter,  it  is  hefcl 
that  there  should  be  a  reasonable 
directness  in  the  route  between 
such    points.      Leverett    v.    Middle 


^^71  r^)CATioN  OP  THE  road  §  1128 

company  can  not,  however,  under  a  mere  general  authority  to 
locate  its  road,  acquire  any  right  in  lands  already  acquired  by  an- 
other company,  and  devoted  to  public  uses,  further  than  is 
necessary  in  crossing  other   roads  lying  between   its   termini.'*^ 

§  1128  (920a).  Determination  of  question  of  necessity  and 
convenience  of  proposed  railroad. — A  New  York  statute  pro- 
hibits a  railroad  corporation  from  exercising  any  of  the  powers 
conferred  by  law  upon  such  a  corporation  until  the  board  of  rail- 
road commissioners  shall  certify  that  "puldic  convenience  and 
necessity  require  the  construction  of  the  railroad  as  proposed  in 
the  articles  of  association."'  It  is  given  as  a  reason  for  the  enact- 
ment of  this  statute  that  "railroad  construction  was  often  threat- 
ened, and  sometimes  undertaken,  with  the  view  of  securing  for 
its  promoters  tribute  from  a  railroad  corporation  thus  threatened 
with  competition.  And  again,  the  interests  of  the  investors  in 
railroad  enterprises  seem  to  require  that  the  promoters  of  such 
enterprises  should  not  be  permitted  to  undertake  the  construction 
of  such  a  work  where  it  was  clear  that  public  convenience  and 
necessity  did  not  require.  These  and  other  considerations  un- 
doubtedly moved  the  legislators  to  provide  a  method  by  which 
the  question  of  public  convenience  and  necessity  should  be 
judicially  determined  at  the  very  beginning  of  the  corporate  life 
of  a  railroad  corporation,  and  to  accomplish  that  result  it  con- 
ferred upon  the  board  of  railroad  commissioners  the  power  and 
duty  to  hear  and  decide  this  question  in  all  cases. "^'     Under  this 

Georgia  &c.  R.  Co.,  96  Ga.  385,  24  its  proposed  line  of  road,  and  hav- 

S.  E.  154;  People  v.  Louisville  &c.  ing   notified    all    persons   to   be   af- 

R.   Co.,    120   111.   48,   10   N.    E.  657;  fected   by   it,   thereby   acquires   the 

Attorney-General    v.    Erie    &c.    R.  right    to    construct    its    road    upon 

Co.,  55  Mich.  15,  20  N.  W.  696.  such  line,  as  against  all  other  rail- 

16  Lake  Shore  &c.  R.  Co.  v.  New  road   corporations.      Rochester   &c. 

York  &c.  R.   Co.,  8  Fed.  858;   Chi-  R.  Co.  v.  New  York  &c.  R.  Co.,  13 

cago  &c.  R.  Co.  V.  Chicago  &c.  R.  Cent.  232,  110  N.  Y.  128,  17  N.   E. 

Co.,   112   111.   589.     See  Winchester  680. 

&c.   R.   Co.   V.   Commonwealth,   106  i"  People    v.     Railroad     Comniis- 

Va.  264,   55   S.   E.  692.     A   railroad  sioners.    160    N.    Y.    202,    54   N.    E. 

companj^  organized  under  the  New  697;   Ticonderoga   Union   Terminal 

York  general  railroad  act  of  1850,  R.  Co..  In  re,  101  N.  Y.  S.  107. 
having   filed   a   map   and    survey   of 


1129 


KAILHOADS 


572 


slatutL'  the  coinniissidncTs  arc  confined  to  the  approval  or  dis- 
approval, in  whole  or  in  jKirt.  on  the  route  specified  in  the  articles 
of  incorporation. '^^  It  has  been  held  that  their  decision  of  the 
question  is  final,  and  cannot  be  afterwards  collaterally  questioned 
in  condemnation  proceedings.^''  It  is  not  sufficient  to  justify  the 
issuance  of  the  certificate  that  the  charges  of  existing  railroads 
are  excessive,  since  this  is  a  matter  covered  by  the  existing 
statutory  remedies.-"  In  one  case  the  refusal  io  grant  the  cer- 
tificate was  sustained  where  it  appeared  that  the  road,  when  con- 
structed, would  cross  several  city  streets  at  grade.  Courts,  in 
re\  iewing  the  (piestion  of  the  weight  of  evidence  to  stq)port  the 
conclusion  of  the  commissioners,  apply  the  same  rules  as  on  mo- 
tions to  set  aside  ordinary  verdicts.-^ 

§1129   (921).     Conflicting     grants  —  Priority     of     location. — 

\\'here  ])()th  com])anies  were  organized  under  the  same  general 
law,  the  prior  a])]^ropriation  of  a  right  of  way  constitutes  a  prior 
grant  from  the  state.--  and  it  is  the  settled  rule  that,  of  two  con- 
flicting grants   of  a   particular   location,   the   earlier   grant   must 


^s  People  V.  Railroad  Com.,  92 
App.  Div.  126,  87  N.  Y.  S.  334. 

■>'•'  People  v.  Railroad  Com..  160 
N.  V.  202,  54  N.  E.  697. 

-°  Amsterdam  &c.  R.  Co.,  In  re, 
86  Hun  578,  33  N.  Y.  S.  1009. 

-1  New  Hamburgh  &c.  R.  Co.,  In 
re.  76  Hun  76,  27  N.  Y.  S.  664. 

-'-  Chicago  &c.  R.  Co.  v.  Chicago 
&c.  R.  Co..  112  111.  589:  Atchison 
&c.  R.  Co.  V.  Mecklin,  23  Kans. 
167;  Boston  tSic.  R.  Co.  v.  Lowell 
&c.  R.  Co..  124  Mass.  368;  New 
Brighton  &c.  R.  Co.  v.  Pittsburgh 
&c.  R.  Co.,  105  Pa.  St.  13.  But  see 
.Marion  Co.  Lumber  Co.  v.  Tilgh- 
nian  l-umber  Cf).,  75  S.  Car.  220. 
55  S.  E.  337.  In  Morris  &'c.  R.  Co. 
V.  Blair,  9  N.  j.  Im|.  635.  it  ai>- 
pcared  that  two  companies  had 
each  been  authorized  in  general 
terms    to    construct    a    railroad    to 


the  Delaware  river,  both  acts  pro- 
viding in  substantially  the  same 
language  that  "when  the  route  of 
such  road  shall  have  been  deter- 
mined upon,  and  a  survey  of  such 
route  deposited  in  the  office  of  the 
secretary  of  state,  then  it  shall  be 
lawful  for  said  companies  to  enter 
ui)on."  etc.  Surveys  by  the  two 
companies  were  filed  on  the  same 
(lay.  showing  a  conflict  between 
the  routes  selected  through  certain 
passes.  One  of  the  companies, 
which  was  chartered  seven  days 
after  the  act  incorporating  the 
other  companj'  was  passed,  was 
shown  to  have  been  the  first  to 
make  an  actual  survey  of  tlie  route 
in  (luestion,  l)ut  its  ri\'al  was  the 
first  to  make  a  definite  adoption  of 
the  route,  and  also  filed  its  survey 
with    tlic    secretarv   of   state   at   an 


573 


LOCATIOX  OF  Tin-:  IJDAD 


§  1130 


prevail.-'  This  rule  has  been  held  to  apply  tfj  the  case  of  a  line 
extending"  throug^h  a  mountain  pass  so  narrow  that  the  right  of 
way  of  the  first  company  occupies  the  entire  pass.-*  But,  where 
explicit  authority  is  given  to  locate  a  railroad  through  a  pass 
rlread}'  occupied  by  another  road,  the  grant  includes  authority 
lo  use  the  right  of  way  of  the  first  if  the  second  cannot  be  built 
without  it.-"'  it  has  I)een  held  that  a  location,  as  between  rival 
companies,  need  not  be  exact  as  to  the  width  of  the  right  of  way 
claimed,  or  other  matters  of  mere  detail.  If  the  site  intended  to 
be  held  is  su]-)stantially  shown,  the  location  is  sufTficient.-*^ 

§  1130  (922).  Location  of  road  upon  property  already  de- 
voted to  public  use. — Hie  legislature  has  power  to  authorize  the 
condemnation    of   railroad    property   and   franchises,^''   and    may 


earlier  hour  of  the  same  day  that 
tlic  other  survey  was  filed.  It  was 
held  that  the  company  which  first 
adopted  the  line  was  entitled  to 
priorit}-.  See  also  Sioux  City  &c. 
R.  Co.  V.  Chicago  &c.  R.  Co.,  27 
Fed.  770;  Cumberland  R.  Co.  v. 
Pine  ^fountain  R.  Co.,  28  Ky.  574, 
96  S.  W.  199:  People  v.  Adirondack 
R.  Co.,  160  N.  Y.  225,  54  N.  E.  689; 
Fayetteville  St.  R.  v.-  Aberdeen  &c. 
R.  Co.,  142  N.  Car.  52,  55  S.  E. 
345;  Pittsburgh  &c.  R.  Co.  v.  Pitts- 
burgh &c.  R.  Co.,  159  Pa.  St.  331, 
28  Atl.  155;  Barre  R.  Co.  v.  Mont- 
pelier  &c.  R.  Co.,  61  Vt.  1,  17  Atl. 
923,  4  L.  R.  A.  785,  and  note,  15 
Am.  St.  877;  Kanawha  &c.  R.  Co. 
V.  Glen  Jean  &c.  R.  Co.,  45  W.  Va. 
119.  30  S.  E.  86;  Chesapeake  &c. 
R.  Co.  V.  Deepwater  R.  Co.,  57  W. 
Va.  461.  50  S.  E.  890. 

23'Chesapeake  &c.  Canal  Co.  v. 
Baltimore  &c.  R.  Co.,  4  Gill  & 
Johns.  (Md.)  1:  Boston  &c.  R.  Co. 
v.  Lowell  &c.  R.  Co..  124  Mass. 
368;  Morris  &c.  R.  Co.  v.  Blair,  9 
N.  J.  Eq.  635,  644.     See  also  as  to 


rights  of  company  against  a  city 
subsequently  incorporated.  Dowie 
V.  Chicago  &c.  R.  Co.,  214  111.  49. 
73  N.  E.  354. 

24  Contra  Costa  &c.  R.  Co.  v. 
AIoss,  23  Cal.  323. 

-'  Denver  &c.  R.  Co.  v.  Denver 
&c.  R.  Co..  17  Fed.  867;  Anniston 
&c.  R.  Co.  v.  Jacksonville  &c.  R. 
Co.,  82  Ala.  297,  2  So.  710;  Mon- 
tana Cent.  R.  Co.  v.  Helena  &c.  R. 
Co..  6  Mont.  416,  12  Pac.  916;  Buf- 
falo. Matter  of,  68  N.  Y.  167,  173. 
See  also  Railway  Co.  v.  Ailing,  99 
U.  S.  463,  25  L.  ed.  438. 

-^  Chesapeake  &c.  R.  Co.  v.  Deep- 
water  R.  Co.,  57  W.  Va.  641,  50 
S.  E.  890.     ■ 

27  Richmond  &c.  R.  Co.  v.  Louisa 
R.  Co.,  13  How.  (U.  S.)  71.  14  L. 
od.  55;  Union  Pac.  R.  Co.  v.  lUir- 
lington  &c.  R.  Co.,  1  McCr.  (U.  S.) 
452;  New  York  R.  Co.  v.  Boston  R. 
Co.,  36  Conn.  196;  Metropolitan 
City  R.  Co.  V.  Chicago  &c.  R.  Co., 
87  111.  317;  Newcastle  &c.  R.  Co. 
v.  Peru  &c.  R.  Co.,  3  Ind.  464; 
Baltimore  &c.  Co.  v.  Union  R.  Co.. 


^   ]  loO  KAILKOADS  37-4 

authorize  one  railrcnul  company  to  use,  not  only  the  rii^ht  of  way, 
l)Ut  the  tracks  of  another  company,  ujion  making-  due  compensa- 
tion.-*' But  no  impHcation  in  favor  of  such  authority  arises  from 
the  ifrant  of  i)o\\er  to  huild  a  second  railroad  unless  there  is  a 
necessity  so  ahsolute  that,  without  it.  the  j^rant  itself  will  be  de- 
feated. So,  it  is  said  that,  "while  a  public  service  corporation 
like  a  railroad  company  is  bound  to  render  to  tiie  public  certain 
services  api)ropriate  to  its  particular  functions,  it  is  not  bound  to 
])ermit  its  i)r()perty  to  l)e  subjected  to  use  l)y  a  rival  corporation, 
unless  by  express  statutory  enactment  and  by  due  process  of  law 
thereunder.'"-"  And,  wdiere  the  appropriation  of  the  franchise  of  a 
street  railroad  company  l)y  a  railrt)ad  company  was  made  merely 
as  a  matter  of  economy,  and  to  axoid  tlie  purchase  of  valuable 
property  which  the  railroad  company  must  have  acquired  t«j 
reach  its  terminus  without  interfering  with   the  street  railroad. 

35  Md.  224,  6  Am.  Rep.  397;  Fitch-  Barb.  (N.  Y.)  138;  Kinsman  St.  R. 
burg  &c.  R.  Co.  V.  Boston  &c.  R.  Co.  v.  P.roadway  &c.  R.  Co.,  36 
Co.,  3  Cush.  (Mass.)  58;  Spring-  Ohio  St.  239:  Toledo  &c.  R.  Co.  v. 
field  v.  Connecticut  River  R.  Co..  Toledo  &c.  R.  Co.  (Ohio),  1  Am. 
4  Cush.  (Mass.)  63;  Eastern  &c.  R.  8c  Eng.  R.  Cas.  (N.  S.)  230.  and 
Co.  V.  Boston  &c.  R.  Co.,  Ill  Mass.  note;  Baltimore  &c.  R.  Co.  v. 
125,  15  Am.  Rep.  13;  New  York  Pittsburgh  &c.  R.  Co..  17  W.  Va. 
Cent.  &c.  R.  Co.  v.  Metropolitan  812;  North  Baltimore  &c.  R.  Co. 
Gas  Light  Co..  63  N.  Y.  326;  Lake  v.  North  Ave.  R.  Co.,  75  Md.  233, 
Shore  &c.  R.  Co.  v.  Cincinnati  &c.  23  .\tl.  466.  See  also  Ex  parte 
R.  Co.,  30  Ohio  St.  604;  Common-  Montgomery  Light  &c.  Co..  187 
wealth  V.  Pittsburg  &c.  R.  Co.,  58  Ala.  376.  65  So.  403.  Compare  Pa- 
Pa.  St.  26;  White  River  Turnp.  Co.  cific  R.  Co.  v.  Wade,  91  Cal.  449. 
V.  Vermont  Cent.  R.  Co.,  21  Vt.  27  Pac.  768,  13  L.  R.  A.  754,  25  Am. 
590;  Alexandria  &c.  R.  Co.  v.  Al-  St.  201.  50  Am.  &  Eng.  R.  Cas. 
exandria  &c.  R.  Co..  75  Va.  780.  362;  New  Orleans  &c.  R.  Co.  v. 
40  Am.  Rep.  743,  and  note;  Tucka-  New  Orleans.  44  La.  Ann.  728.  11 
hoc  Canal  Co.  v.  Tuckahoe  &c.  R.  So.  78.  50  Am.  &  Eng.  R.  Cas.  391. 
Co..  11  Leigh  (Va.)  42,  36  Am.  So,  under  Texas  statute  and  order 
Dec.  374;  Elliott  Roads  and  Streets.  of  railroad  commission  there  is  a 
164,  et  seq.  right  to  condemn  land  of  one  com- 
2s  Providence  &c.  R.  Co.  v.  Nor-  pany  for  union  depot.  State  v.  St. 
wich  &c.  R.  Co..  138  Mass.  277.  22  Louis  &c.  Ry.  Co.  (Tex.  Civ.  App.), 
Am.  &  Eng.  R.  Cas.  493;  St.  Louis  165   S.  W.   491. 

&c.  R.  Co.  V.  Southern  R.  Co.,  105  29  Rvansville  &c.  Traction  Co.  v. 

Mo.  577.  15  S.   W.   1013,  16  S.  W.  Henderson    Bridge    Co.,    134    Fed. 

960;  Sixth  Ave.  R.  Co.  v.  Kerr,  45  973,  978   (citing  text). 


575  LOCATION  OF  THE  ROAD  §  1130 

il  was  held  that  no  such  necessity  existed.''"  A  rig-ht  to  cross  an 
existing-  raih'oad  or  highway  may  often  be  impHed  where  a  right 
to  take  it  U)ngitudinally  could  not  be  implied.'^  Thus,  where 
authority  is  granted  to  locate  and  construct  the  road  from  cnie 
specified  ])oint  to  another,  the  right  to  cross  other  railroads  and 
highways  lying  between  the  two  points  is  necessarily  implied,-'- 
and  authority  to  cross  any  "public  road  or  way"  has  been  held  to 
include  the  right  to  cross  city  streets  ;-^"'  but  the  right  to  take  an 
existing  road  or  highway  longitudinally  is  essentially  diiTerent. 
and  would  not,  ordinarily,  be  implied  in  such  a  case.  It  must  be 
granted  expressly  or  by  necessary  implication."'*  By  Act  of 
Congress  it  is  provided  that  no  company  building  its  road  upon 
or  across  governmental  lands,  wdiich  shall  locate  its  lines  through 
any  canyon,  pass,  or  defile  in  the  mountains,  shall  prevent  any 
other  company  from  the  use  or  occupancy  of  the  same  canyon, 
pass  or  defile,  for  the  purpose  of  its  road  in  common  with  the 
road  first  located.  And  several  of  the  states  have  statutes  to  the 
same  efifect.  Under  this  law  it  is  held  that,  where  a  canyon  is 
broad  enough  to  enable  both  roads  to  proceed  without  interfer- 

30  Pennsylvania  R.  Co.'s  Appeal,  •''''  Chattanooga  &c.  R.  Co.  v.  Fel- 
93  Pa.  St.  150,  3  Am.  &  Eng.  R.  ton,  69  Fed.  273,  and  authorities, 
Cas.  507.  See  also  Elliott  Roads  p.  280:  41  Cent.  L.  J.  444;  Illinois 
and  Streets  (3d  ed.),  §  248.  Cent.  R.  Co.  v.  Chicago  &c.  R.  Co., 

31  Elliott  Roads  and  Streets  (3d  122  111.  473,  13  N.  E.  140;  Ft.  Wayne 
cd.),  §  248.  v.  Lake  Shore  &c.  R.  Co.,  132  Ind. 

3-'  Bridgeport    v.    New    York    &c.  558.  2>2  N.  E.  215,  18  L.  R.  A.  367, 

R.   Co.,  Z6  Conn.  255,  4  Am.   Rep.  and   note,  32  Am.   St.  277;   Housa- 

63;  Lake  Erie  &c.  R.  Co.  v.  Koko-  tonic  R.  Co.  v.  Lee  &c.  R.  Co.,  118 

mo,  130  Ind.  224,  29  N.  E.  780:  Ft.  Mass.    391:    Lewis    v.    Germantown 

Wayne  v.   Lake   Shore  &c.   R.  Co.,  &c.  Co.,  16  Phila.  (Pa.)  608;  Alex- 

132  Ind.  558,  2>2  N.  E.  215,  18  L.  R.  andria    &c.    R.    Co.    v.    Alexandria 

A.  367,   and   note,  32  Am.   St.  277,  &c.  R.  Co.,  75  Va.  780,  40  Am.  Rep. 

283;  Providence  &c.  R.  Co.  v.  Nor-  743,    and    note;    Barre    R.    Co.    v. 

wich    &c.    R.    Co.,    138    Mass.    277;  Montpelier    &c.    R.    Co.,    61    Vt.    1, 

Morris    &c.    R.    Co.    v.    Central    R.  4   L.   R.   A.   785,   and   note,    15   .\m. 

Co.,  31  N.  J.  L.  205.  St.   877,    and    note.      Compare   also 

33  Canton   v.   Canton   &c.   Co.,  84  Omaha   &c.    R.    Co.  v.    Lincoln,    97 

Miss.  268,  2,()  So.  266,  65   L.  R.  A.  Nebr.  122,  149  N.  W.  319.     But  see 

561,    105    Am.    St.    428.      See    also  Chicago  v.  New  York  &c.  R.  Co., 

Hamline    v.    Southern    R.    Co.,    76  216  Fed.  735. 
Miss.  417,  25  So.  295. 


§  1130 


R  A II. ROADS 


576 


ing-  with  each  other  in  tlie  construction  of  their  respecti\  e  roads. 
the  second  c()mi)any  should  he  i)ermittcd  to  put  down  a  track 
])arallel  with  that  of  the  first  company.-'''  encroaching  upon  its 
right  of  way  only  where  the  character  of  the  surface  will  not 
permit  it  to  use  adjoining  ground.''"  And  if.  in  any  portion  of  the 
canvon.  it  is  impracticable  or  imj)ossible  to  lay  down  more  than 
one  roadbed  and  track,  a  court  of  equity  will,  upon  ])roper  ap- 
plication, make  such  orders  as  will  secure  to  the  second  company 
the  right  to  use.  upon  just  and  equitable  terms,  the  roadbed  and 
track  constructed  by  the  first  com])any.''  A  railroad  may.  under 
3.  general  grant  of  ])ower  to  exercise  the  right  of  eminent  domain, 
without  special  authority,  condemn  property  of  another  railroad 
not  held  or  used  for  the  purposes  of  the  road.^*^  And  where  land 
has  been  held  for  five  years  by  a  railroad  comjiany  without  being 
used  in  any  way.  the  fact  that  the  ccmipany  anticipates  using  it 
at  some  future  time  does  not  exem])t  it  from  condemnation  by 
another  com])any  which  desires  to  build  a  railroad  across  it.  The 
prospective  use  should  yield  to  the  more  immediate  necessities.''" 
It  has  been  held  that  a  location  made  before  the  incorporation  of 
a  railroad  compaii}'   was  inefi'ective  to  preserve  the  location   as 


■•'•-  Railway  Co.  v.  Ailing.  99  U.  S. 
463.  25   L.  c(l.  438. 

•'6  Denver  iS:c.  R.  Co.  v.  Denver 
&c.  R.  Co..  17  Fed.  867,  14  Am.  & 
Eng.  R.  Cas.  83. 

■■5-  Railway  Co.  v.  Ailing,  99  U.  S. 
463,  25  L.  ed.  438:  Denver  &c.  R. 
Co.  V.  Denver  &c.  R.  Co.,  17  Fed. 
867.  See  also  Springfield  v.  Con- 
necticut River  R.  Co..  4  Cusli. 
(Mass.)  72:  Lowell  &c.  R.  Co.  v. 
Ro.ston  &c.  R.  Co.,  7  Gray  (Mass.) 
27:  Western  North  Carolina  R.  Co. 
V.  Georgia  &c.  Co.,  88  N.  Car.  79. 
A  railroad  company  has  a  right  to 
construct  its  track  through  a  can- 
yon, though  it  is  compelled  in  do- 
ing so  to  run  parallel  with  and  in 
close  proximity  to  an  existing  high- 
way.     Fares  v.   Rio   Grande   West- 


ern R.  Co.,  28  Utah  132.  77  Pac. 
230. 

■■•^  Sioux  City  &c.  R.  Cn.  V.  Chi- 
cago &T.  R.  Co.,  27  Fed.  770.  25 
Am.  &  Eng.  R.  Cas.  150.  The 
unnecessary  use  of  land  by  one 
railroad  companj^  is  no  defense  to 
condemnation  proceedings  insti- 
tuted by  anotlier  company  to  take 
the  same  land.  Baltimore  &c.  R. 
Co.  V.  Pittsburgh  &c.  R.  Co..  17 
W.  Va.  812.  And  the  fact  that  land 
owned  by  one  railroad  company  is 
held  for  public  convcniiMice  and 
for  i)urposcs  of  quasi  pid)lic  char- 
acter, does  not  protect  it  from  con- 
demnation. New  York  &c.  R.  Co. 
In  re,  99  N.  Y.   12. 

"'^  Colorado  Eastern  R.  Co.  v. 
Union  Pacific  R.  Co..  41  I'ed.  293, 
44  Am.  iS:  Eng.  R.  Cas.  10. 


577  LOCATION  OF  THE  ROAD  §1131 

against  another  legally  incorporated  railroad  company  afterwards 
making  and  adopting  the  same  location.  The  location  was  not 
preserved  by  ratification  after  the  incorporation  of  the  com- 
pany.'" 

§  1131  (922a.)  Location  on  abandoned  right  of  way. — A  gen- 
eral grant  oi  power  to  a  railroad  company  to  condemn  abandoned 
roadbeds  does  not  authorize  a  railroad  to  enter  upon  and  con- 
demn a  roadbed  abandoned  by  a  former  locator,  and  afterwards 
located  upon  by  another  company  which  had  completed  a  valid 
location,  l.'nder  these  circumstances  the  roadbed  was  not  an 
abandoned  roadbed.'*^  The  South  Carolina  case,  announcing 
this  rule,  held  that  the  first  location  on  the  abandoned  roadl^ed 
was  completed  when  the  right  of  way  was  clearly  defined  and 
staked  out,  and  the  route  so  marked  was  adopted  by  the  com- 
pany, and  that  the  entry  of  an  engineer  and  a  survey  was  not 
required. *- 

§  1132  (923).  Branch  and  lateral  roads. — It  has  been  held 
that  authority  to  locate  and  construct  a  railroad  carries  by  im- 
plication the  right  to  construct  branches  and  sidings  to  carry 
out  the  purposes  of  the  company's  charter.*^  but,  while  the  right 
to  construct  ordinary  side-tracks  and  switches  may  be  included,^* 

*"  New    Brighton    &c.    R.    Co.    v.  "i*  Arrington  v.   Savannah   &c.   R. 

Pittsburgh   &c.  R.   Co.,   105  Pa.  St.  Co..  95  Ala.  434,  11   So.  7;   Central 

13.  Branch  &c.  R.  Co.  v.  Atchison  &c. 

•ti  Fayetteville    Street    R.    Co.    v.  R.    Co.,   26   Kans.   669;    New   York 

Aberdeen  &c.  R.  Co..  142  N.  C.  52,  Cent.    &c.    R.    Co.,    Matter    of,    77 

55  S.  E.  345.  N.  Y.  248;  People  v.  Brooklyn  &c. 

42  Fayetteville    Street    R.    Co.    v.  R.  Co..  89  N.  Y.  75;  Boston  &c.  R. 

Aberdeen  &c.   R.   Co.,   142   N.   Car.  Co..   Matter  of,  53   N.  Y.  574;  To- 

52,  55  S.  E.  345.  ledo  &c.  R.  Co.  v.  Daniels,  16  Ohio 

43Schofield    V.    Pennsylvania    R.  St.  390;  Philadelphia  &c.  R.  Co.  v. 

Co.,    2    Pa.   Dist.    Ct.    57.      But    see  Williams,  54  Pa.  St.  103;  Protzman 

Edgewood  R.  Co.'s  Appeal,  79  Pa.  v.   Indianapolis   &c.  R.   Co.,  9  Ind. 

St.  257;   Philadelphia  &c.  R.  Co.  v.  467,   68   Am.   Dec.   650.     Industrial 

Philadelphia  &c.  R.  Co.,  1  Pa.  Dist.  spur    track    is    distinguished    from 

Ct.   73.      Compare   Virginia    &c.   R.  "branch  road"  in  Illinois   Cent.   R. 

Co.   V.   Seaboard   Air   Line   R.    Co..  Co.    v.    East    Sioux    Falls    Quarry 

165  X.  Car.  425,  81  S.  E.  617.  Co.,  33  S.  Dak.  63,  144  N.  W.  724. 


S  1132 


RAILROADS 


578 


we  think  authority  to  locate  the  road  on  a  certain  line  does  not, 
ordinarily,  carry  with  it  the  right  to  construct  branch  or  lateral 
roads  running  in  a  dififerent  direction.^"'  These  may,  however, 
he  authorized  lor  a  public  puri)ose ;'"  and  provision  is  usually 
made  for  locating  and  constructing  them  under  statutory  author- 
ity. It  has  also  been  held  by  some  of  the  courts  that  the  legis- 
lature may  constitutionally  authorize  them  to  be  constructed  so 
as  to  connect  the  main  line  with  manufacturing  establishments 
and  mines,  and  that  the  pcjwer  of  eminent  domain  may  be  exer- 
cised for  that  purpose.*'     But  this  is  denied  by  other  courts.*'' 


■*•''  Chicago  &c.  R.  Co.  v.  Wiltse, 
116  111.  449,  6  N.  E.  49;  Illinois 
Cent.  R.  Co.  v.  Chicago,  138  III. 
453,  28  N.  E.  740.  See  also  Balti- 
more &c.  R.  Co.  V.  Union  R.  Co., 
35  Md.  224,  6  Am.  Rep.  397; 
Knight  V.  Carrolton  R.  Co.,  9  La. 
Ann.  284;  Brigham  v.  Agricultural 
Branch  R.  Co.,  1  Allen  (Mass.) 
316;  Morris  &c.  R.  Co.  v.  Central 
R.  Co.,  31  N.  J.  L.  205. 

*6  Secombe  v.  Railroad  Co.,  23 
Wall.  (U.  S.)  108,  23  L.  ed.  67; 
Cherokee  Nation  v.  Southern  Kan- 
sas R.  Co.,  135  U.  S.  641,  10  Sup. 
Ct.  965,  34  L.  ed.  295;  Howard 
County  V.  Booneville  Cent.  Nat. 
Bank,  108  U.  S.  314,  2  Sup.  Ct.  689. 
27  L.  ed.  738;  Newhall  v.  Galena 
&c.  R.  Co.,  14  111.  273;  Tyler  v. 
Elizabcthtown  &c.  R.  Co.,  9  Bush 
(Ky.)  510;  Toledo  &c.  R.  Co.  v. 
East  Saginaw,  72  Mich.  206,  40  N. 
W.  436;  Beekman  v.  Saratoga  &c. 
R.  Co.,  3  Paige  (N.  Y.)  45,  22  Am. 
Dec.  679,  and  note;  Union  El.  R. 
Co.,  Matter  of,  113  N.  Y.  275,  21 
N.  E.  81. 

^'^  Harvey  v.  Thomas,  10  Watts 
(Pa.)  63,  34  Am.  Dec.  141:  Hay.s 
V.  Risher,  32  Pa.  St.  169;  Getz's 
Appeal,    10  W.   N.   C.    (Pa.)    453.  3 


Am.  &  Eng.  R.  Cas.  186;  Slocum's 
Appeal,  12  W.  N.  Cas.  (Pa.)  84. 
See  also  Fisher  v.  Chicago  &c.  R. 
Co..  104  111.  323;  South  Chicago  R. 
Co.  V.  Dix,  109  111.  237;  Phillips  v. 
Watson,  63  Iowa  28,  18  N.  W.  659; 
New  Cent.  &c.  Co.  v.  George's  &c. 
Coal  Co.,  37  Md.  537;  Kettle  River 
R.  Co.  V.  Eastern  R.  Co.,  41  Minn. 
461,  43  N.  W.  469;  Dietrich  v. 
Murdock,  42  Mo.  279;  Hibernia  R. 
Co.  V.  DeCamp,  47  N.  J.  L.  518,  4 
Atl.  318,  54  Am.  Rep.  197;  New 
York  &c.  R.  Co.  v.  Metropolitan 
&c.  Co.,  63  N.  Y.  326;  Clarke  v. 
Blackmar,  47  N.  Y.  150;  Rudolph 
V.  Pennsylvania  &c.  Co.,  166  Pa. 
St.  430,  31  Atl.  131. 

*^  See  Weidenfeld  v.  Sugar  Run 
R.  Co.,  48  Fed.  615;  People  v.  Dist. 
Ct.,  11  Colo.  147;  Chicago  &c.  R. 
Co.  V.  Wiltse,  116  111.  449,  6  N.  E. 
49;  Mikesell  v.  Durkee,  34  Kans. 
509,  9  Pac.  278;  Split  Rock  Cable 
R.  Co.,  Matter  of,  128  N.  Y.  408, 
28  N.  E.  506;  Rochester  &c.  R.  Co. 
In  re,  58  Hun  601,  12  N.  Y.  S.  566; 
State  V.  Railway  Co.,  40  Ohio  St. 
504:  Railroad  Co.  v.  Iron  Works. 
31  W.  Va.  710.  2  L.  R.  A.  680,  and 
note. 


579 


LOCATION  OF  THE  ROAD 


§1132 


This  question,  however,  is  considered  in  another  chapter.*" 
Where  the  charter  authorizes  the  company  to  locate  and  con- 
struct branches  or  lateral  roads  it  has  been  held  that  it  may  build 
a  branch  line  running  in  the  same  general  direction  as  the  main 
line,  and  connecting  such  main  line  with  another  railroad.^"  In 
ether  words,  the  branch  may  be  practically  an  extension  of  the 
main  line  as  well  as  a  line  running-  off  at  an  intermediate  point. 
So,  there  may  be  a  branch  from  a  branch,  all  having  a  common 
stem  in  the  main  line.^^  But  it  has  been  held  that  authority  to 
construct  "branch  roads  from  the  main  line  to  other  points  or 
places  in  the  several  counties  through  which  said  road  may  pass," 
does  not  give  the  company  the  right  to  construct  a  branch 
through  more  than  one  county;  that  is,  any  one  branch  must  be- 
gin and  end  in  the  same  county.^-  A  track  connecting  the  line  of 
one  railroad  with  that  of  another  for  the  purpose  of  exercising  a 
right  of  passage  over  the  latter  road,  as  secured  by  a  lease,  is 
neither  a  relocation  of  the  main  line  of  such  road  nor  the  con- 
struction of  a  branch  line,  but  is  merely  a  side-track,  the  con- 
struction of  which  is  included  in  the  general  power  to  build  the 
railroad  itself.^^  It  has  been  held  that  power  to  construct  or  ex- 
tend a  line,  as  the  board  of  directors  may  determine  and  desig- 
nate, includes  the  power  to  acquire  and  use  a  bridge,  a  station, 
and  the  tracks  of  another  company  beyond  terminals  originallv 


49  See  post,  §   1206. 

50  Atlantic  &c.  R.  Co.  v.  St.  Louis, 
66  AIo.  228;  Delabole  State  Co.  v. 
Bangor  &c.  R.  Co.,  6  North.  Co. 
(Pa.)  ?>Z7\  AIcAboy's  Appeal,  107 
Pa.  St.  548;  Blanton  v.  Richmond 
&c.  R.  Co.,  86  Va.  618,  10  S.  E.  925, 
43  Am.  &  Eng.  R.  Cas.  617.  It 
may  cross  another  railroad.  Haj^s 
V.  Briggs,  74  Pa.  St.  Z72,. 

•"^1  Wheeling  &c.  R.  Co.  v.  Cam- 
den &c.  Co.,  35  W.  Va.  205,  13  S. 
E.  369.  See  also  Atlantic  &c.  R. 
Co.  V.  St.  Louis,  66  Mo.  228. 

5-  Works  V.  Junction  R.  Co..  5 
AlcL.  (U.  S.)  425.  See  also  Balti- 
more &c.  R.  Co.  V.  Union   R.   Co., 


35  Aid.  224,  6  Am.  Rep.  397;  Cur- 
rier V.  Marietta  &c.  R.  Co.,  11  Ohio 
St.  228.  It  has  also  been-  held  that 
power  to  locate,  construct  and 
operate  a  branch  road  does  not 
authorize  the  purchase  of  a  road 
already  constructed.  Gulf  &c.  R. 
Co.  V.  Morris,  67  Tex.  692.  4  S.  W. 
156,  35  Am.  &  Eng.  Cas.  94;  Camp- 
bell v.  Alarietta  &c.  R.  Co.,  23 
Ohio  St.  168. 

•"'3  Lake  Shore  &c.  R.  Co.  v.  Bal- 
timore &c.  R.  Co.,  149  111.  272,  37 
N.  E.  91. 

^**  Union  Pac.  R.  Co.  v.  Mason 
City  &c.  R.  Co.,  128  Fed.  230,  af- 
firming 124  Fed.  409. 


§  li:W 


RAILROADS 


580 


selected,  and  in  annlher  state,  on  the  determination  of  the  l)oard 
of  directors,  and  on  compHance  with  the  laws  of  both  states  rela- 
tive to  the  acquisition  and  use  of  property  by  a  corporation 
therein.'"'  \\'here  railroad  directors  act  in  i^ood  faith  in  de- 
termining^ the  question  of  the  advisability  of  the  construction  of 
a  branch  line,  their  decision  will  generally  be  regarded  as  con- 
clusive, and  not  subject  to  review  by  the  courts." 

§  1133  (924).  Exempt  property. — In  some  (jf  the  states  the 
general  railroad  laws  forbid  a  railroad  to  locate  its  line  so  as  to 
take,  without  the  consent  of  the  owners,  cemeteries,  churches, 
dwelling-houses.''*'  or  the  yard,  kitchen  or  garden  thereunto  at- 
tached.'"'' A  dwelling-house  has  been  held  to  include  so  much  of 
the  yard  and  curtilage  as  is  necessary  for  its  reasonable  enjoy- 
ment."^^ though  this  has  been  denied  where  the  statute  was  silent 
on  the  sul)ject.''"  Under  a  charter  which  provided  that  the  pres- 
ident rind  directors  of  the  railroad  company  should  have  power 
t(*  detcrniinc  and  locate  the  route  of  the  railroad,  as  they  might 


•''•'' UliiKT  V.  JJine  Rock  R.  Co., 
98  Maino  579,  57  Atl.  1001,  66  L.  R. 
A.  387:  Price  v.  Pennsylvania  R. 
Co.,  209  Pa.  St.  81,  58  At!.  137. 

•'■-'■'  State  v.  Trnth,  34  N.  J.  T..  377: 
McConiha  v.  Guthrie,  21  W.*  \'a. 
134.  17  Am.  &  Eng.  R.  Cas.  1.  The 
word  "lioiise"  has  been  construed 
by  the  h'nglish  courts  to  include 
court  yard,  office,  garden,  unfin- 
ished houses,  and  all  that  is  neces- 
sary to  the  enjoyment  of  the  house, 
if  within  the  same  ambit  or  circuit, 
whether  attached  to  the  main 
building  or  not,  and  though  pur- 
chased after  the  main  building  was 
erected.  Governors  &c.  v.  Char- 
ing Cross  &c.  R.  Co.,  30  L.  J.  Ch. 
395:  Mason  v.  London  &c.  R.  Co., 
37  L.  J.  Ch.  483:  Dakin  v.  London 
&c.  R.  Co.,  26  L.  J.  Ch.  734,  note. 
3  De  Gex  &  S.  414:  King  v.  Wy- 
combe   R.    Co.,   29   L.   J.   Ch.   462: 


Cole  v.  West  London  &c.  R.  Co., 
27  15eav.  242;  Alexander  v.  West 
End  &c.  R.  Co.,  31  L.  J.  Ch.  500; 
Grosvenor  v.  Hempstead  &c.  R. 
Co.,  26  L.  J.  Ch.  731,  cited  in  23 
Am.  &  Eng.  R.  Cas.  2,  note. 

■'''■  See  Richmond  &c.  R.  Co.  v. 
Wicker,   13  Grat.   (Va.)   375. 

■■^Swift's  Appeal,  111  Pa.  St.  516. 
2  Atl.  539:  Damon's  .Appeal,  119 
Pa.  St.  287,  13  Atl.  217.  I'.ut  it  docs 
not  include  a  part  of  a  lot  one 
hundred  and  twenty-five  feet  away 
from  the  house  and  not  reasonablj^ 
essential  to  the  use  and  enjoyment 
of  the  house.  Rudolph  v.  Penn- 
sylvania &c.  R.  Co.,  166  Pa.  St. 
430.  31  Atl.  131.  See  also  Lyle  v. 
McKeesport  &c.  R.  Co.,  131  Pa.  St, 
437,  18  Atl.  1111. 

59  Wells  V.  Somerset  &c.  R.  Co., 
47   Maine  345. 


581  LOCATION  OF  THE  ROAD  §  1134 

deem  expedient,  not.  however,  passing  through  any  burying- 
ground  or  place  of  public  worship,  or  any  dwelling-house  in  the 
occupancy  of  the  owner  without  his  consent,  it  was  held  that  a 
house,  to  be  exempt,  must  be  bona  fide  the  residence  of  the 
owner,  and  that,  where  the  line  of  a  railroad  has  been  surveyed 
so  as  to  cut  through  a  dwelling-house  occupied  by  a  tenant,  the 
owner  cannot,  l)y  mo\ing  int(j  the  house  for  the  mere  purpose  ol 
defeating  the  proposed  improvement,  or  of  extorting  excessive 
compensation,  render  it  ''a  dwelling-house  in  the  occupancy  of 
the  owner,"  within  the  meaning  of  the  law,  so  as  to  prevent  its 
condemnation.""  Where  the  statute  prohibited  the  taking  of  a 
dwelling-house,  or  any  space  within  sixty  feet  thereof,  it  was 
held  that  the  limitation  applied  only  to  land  belonging  to  the 
owner  of  the  dwelling,  and  that  it  did  not  prohibit  the  location  of 
a  road  within  sixty  feet  of  the  land  of  another. '''^  And  a  billiard 
saloon  attached  to  a  tavern  and  used  for  the  entertainment  of  the 
guests  was  held  to  be  a  part  of  a  dwelling."- 

§1134  (925).  Preliminary  survey. — Railroad  companies  are 
given  power  by  the  statutes  of  almost  all  of  the  states  to  enter  bv 
their  officers  or  agents  upon  the  land  of  any  person,  and  cause  an 
examination  and  survey  of  their  proposed  route  to  be  made,  sub- 
ject, however,  in  some  of  the  states,  to  liability  for  actual  dam- 
v.ges.^^     A  preliminary  survey  for  this  purpose  does  not  consti- 

*'°  Hagner  v.  Pennsylvania  &c.  R.  were  induced  to  live  there  for  the 
Co.,  154  Pa.  St.  475,  25  Atl.  1082,  purpose  of  enabling  the  owner  to 
57  Am.  &  Eng.  R.  Cas.  648.  See  evade  the  condemnation  law.  Mor- 
Stahl  v.  Pennsylvania  R.  Co.,  155  ris  v.  Schallsville  &c.  R.  Co.,  4 
Pa.  St.  309,  26  Atl.  437.  Houses  Bush  (Ky.)  448;  Carris  v.  Corn- 
belonging  to  a  corporation  and  oc-  missioners  of  Waterloo,  2  Hill  (N. 
cupied    bj^    its    tenants    have    also  Y.)  443. 

been    held    not    to    be    its    dwelling  «'  Richmond  &c.  R.  Co.  v.  Wick- 

Iinuses    so    as    to    exempt   the    land  cr,   13  Grat.   (Va.)   375. 

from    condemnation.      Raleigh    &c.  «2  State  v.  Troth,  36  N.  J.  L.  422. 

R.    Co.    V.    Mecklenburg    Mfg.    Co.,  •'"  They  are  not  trespassers  where 

166  N.   Car.    168,   82   S.   E.   5.     The  they    enter    and    make    the    survey 

exemption   must  be  asked   in   good  under  statutory  authority.    TBurrow 

faith.    It  will  not  apply  to  a  shanty  v.  Terre  Haute  &c.  R.  Co.,  107  Ind. 

]niilt  on  the  line  of  a  railway,  and  432.  8  N.  E.  167. 
occupied    by    some    negroes    who 


§  1135  KAILKOADS  582 

tute  a  lakiiiij  in  the  sense  in  which  that  term  is  used  in  the  law  of 
eminent  {k)niain  and  in  the  various  state  constitutions;"*  but 
A>  here  the  sur\ey  is  conducted  in  an  unreasonal^lc  manner  it  may 
l^e  actionable,  and  may  even  constitute  a  takiiiLT  w  here  the  soil  is 
disturbed  and  trees  are  cut  down,  or  the  like.''"'  The  right  to 
make  a  preliminary  survey  does  not  include  the  rij^ht  to  make 
experiments  upon  tlie  land,  without  compensation,  for  the  pur- 
pose of  ascertainini^'  whether  it  is  a  suitable  route.''" 

§  1135   (926).     Perfecting  location — Map  of  proposed  route. — 

-A  defective  location  may  l)e  perfected  by  legislative  confirma- 
tion, since  the  legislature  has  the  same  right  to  confirm  an  ex- 
isting location  that  it  has  to  authorize  a  location  to  be  made  in 
the  future.  Hut  such  an  act  does  not  relieve  the  railroad  com- 
pany from  the  consec|uences  of  illegal  acts  done  before  its  pas- 
sage."" In  some  states  the  company  is  recjuired  to  submit  a  maj) 
of  its  proposed  route  to  the  railroad  commissioners  for  their  ap- 
proval, while  in  most  of  the  others  such  a  map  must  be  filed  or 
recorded  in  each  of  the  counties  through  wdiich  the  line  extends. 
In  some  of  the  states  the  statute  merely  recpiires  the  map  to  be 
filed  before  the  construction  of  the  road  is  begun,  and  permits  the 
right  of  way  to  be  condemned  before  such  filing."^  In  others  the 
map  is  filed  with  the  secretary  of  state  after  the  location  of  the 
road.     Some  states  reqtiire  that  the  road  shall  be  located  and  a 

64  Fox  V.   Western  P.  R.  Co.,  31  ^e  People  v.  Loew,  102  N.  Y.  471: 

Cal.  538;  Bonaparte  v.  Camden  &c.  Ash    v.    Cummings,    50    N.   H.    591. 

R.    Co.,    Bald.    (U.    S.    C.    C.)    209;  See  also  Davis  v.  San  Lorenzo  &c. 

Polly    v.    Saratoga    &c.    R.    Co.,    9  Co.,  47  Cal.  517;  California  &c.  Co. 

Barb.    (N.    Y.)    449;    OregonianR.  v.  Central  &c.  Co.,  47  Cal.  528;  To- 

Co.  v.  Hill,  9  Ore.  Zll;   Chambers  ledn  &c.   R.  Co.  v.  Loop,   139  Ind. 

v.    Cinncinnati    &c.    R.    Co.,   69   Ga.  542,  39  N.  E.  306. 

320.     Sec  also  Robinson  v.  South-  '^''  Salcm    v.    Eastern    R.    Co..    98 

ern  Cal.  R.  Co.,  129  Cal.  8,  61  Pac.  Mass.  431,  96  Am.  Dec.  650;   Com- 

947;  Duluth  &c.  R.  Co.  v.  Northern  monwealth   v.   Old    Colony  R.   Co., 

Pac.  R.  Co.,  57  Minn.  218,  53  N.  W.  80  Mass.   (14  Gray.^  93. 

366.       Elliott    Roads    and    Streets,  ^s  ]\Iissouri    River   &c.    R.    Co.   v. 

(3rd  ed-.)   §  236.  Shepard,  9  Kans.  647;  Chicago  &c. 

e^Orr  v.  Qiiimby,  54  N.  H.  590;  R.  Co.  v.  Grovier,  41  Kans.  685,  21 

Morris  &  E.  R.  Co.  v.  Hudson  &c.  Pac.    779;    Detroit    &c.    R.    Co.    v. 

Co.,  25  N.  J.  Eq.  384.  Campbell,  140  Mich.  384,  103  N.  W. 


583 


LOCATION  OP  THE  ROAD 


§  1135 


*  survey"  thereof  shall  be  filed."''  in  which  case  the  survey  may  be 
aided  by  plans  and  maps  filed  with  it.^''  Similar  provisions  are 
frequently  found  in  special  charters  granted  to  railroad  compan- 
ies. Such  statutes  should  receive  a  reasonable  construction,  such 
?is  will  substantially  protect  private  rights  without  needless  em- 
barrassment to  public  improvements.'^  Where  a  survey,  map.  or 
location  is  required  to  be  filed  as  a  precedent  condition  to  the  in- 
stitution of  condemnation  proceedings,  the  particular  property 
tC'  be  taken  must  be  clearly  pointed  out.'-  In  New  Jersey  it  is 
held  that  the  survey  of  the  route  of  a  railroad,  filed  in  the  office 
of  the  secretary  of  state,  limits  the  right  of  condemnation  to  the 
lands  included  in  its  description.  This  afifords  the  only  evidence 
of  the  grant  by  the  state  to  the  corporation,  and  land  not  specified 
in  such  survey  cannot  be  condemned  by  the  railroad  as  a  right  of 
way.^^  In  West  Virginia,  neither  the  filing  of  the  map  and 
profile  of  the  proposed  line,  nor  the  commencement  of  condemna- 
tion proceedings,  is  an  essential  step  in  making  the  location. 
Both  may  be  deferred  until  after  the  location  is  perfected.^*  In 
New  York  it  is  held  that  the  filmg  of  the  map  vests  the  railroad 


856,  861  (citing  text).  See  Wheel- 
ing Bridge  &c.  R.  Co.  v.  Camden 
&c.  Co.,  35  W.  Va.  205,  13  S.  E. 
369.  47  Am.  &  Eng.  R.  Cas.  27; 
also  Northwestern  Pac.  R.  Co.  v. 
Lambert,  166  Cal.  749,  137  Pac. 
1116.  The  requirement  of  the  North 
Carolina  statute  that  railroad  cor- 
porations within  a  reasonable  time 
file  a  map  and  profile  of  their  route 
and  right  of  way  with  the  corpora- 
tion commission  is  held  not  to  re- 
quire such  filing  as  an  essential  of 
a  completed  location  of  the  right 
of  waj^  as  against  another  compa- 
ny. Fayetteville  St.  R.  Co.  v.  .Ab- 
erdeen &c.  R.  Co.,  142  N.  Car.  423, 
55  S.  E.  345. 

69  United  New  Jersey  R.  Co.  v. 
National  &c.  R.  Co..  52  N.  J.  L. 
90. 

"f  Grand      Junction      R.      Co.      v. 


County  Comrs..  14  Gray  (Mass.) 
553;  Drury  v.  Midland  R.  Co.,  127 
!^lass.  571;  Portland  &c.  R.  Co.  v. 
County  Comrs.,  65  Maine  292; 
Quincy  &c.  R.  Co.  v.  Kellog,  54 
Mo.  334. 

''I  Lansing  v.  Caswell.  4  Paige 
(N.  Y.)  519. 

"2  United  New  Jersey  &c.  R.  Co. 
V.  National  Docks  &c.  R.  Co..  52 
N.  J.  L.  90,  18  Atl.  574. 

73  Rochester  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  110  N.  Y.  128.  17 
N.  E.  680.  35  Am.  &  Eng.  R.  Cas. 
267. 

■7-*  Chesapeake  &c.  R.  Co.  v.  Deep- 
water  &c.  R.  Co.,  57  W.  Va.  641. 
50  S.  E.  890.  The  case  also  holds 
that  a  mere  survey  made  by  the  en- 
gineers of  the  company  not  adopted 
or  determined  upon  by  the  corpo- 
ration  itself  bv  an  act  of  its  board 


§  1135 


RAILROADS 


584 


conipanv  with  a  rij^lit  to  the  land  therein  specified  as  its  pro- 
posed ri^ht  of  way,  subject  only  to  the  right  of  the  landowner  to 
have  his  damages  assessed  and  paid.  A  map  showing  but  a 
single  line,  without  anything  to  indicate  whether  it  is  the  center 
or  one  of  the  boundary  lines  of  the  right  of  way,  and  containing 
no  statement  of  the  width  of  the  land  taken,  has  been  held  not  to 
be  a  sufiicient  compliance  with  the  law  as  to  location  and  to 
authorize  condemnation  proceedings  where  the  statute  recjuires 
a  map  of  the  proposed  location  to  be  filed  before  such  proceed- 
ings are  begun.""'  The  owner  is  entitled  to  information  as  to 
the  exact  property  which  it  is  proposed  to  take.'"  Since  the  map 
required  to  be  filed  is  intended  mainly  for  the  purpose  of  acquir- 
ing property  necessary  to  be  taken,  it  is  sufficient  if  it  shows  the 
alignment  and  profile  of  the  proposed  road  and  designates  the 
width  of  the  right  of  way.  It  need  not  show  the  connections, 
turnouts  and  switches."     Hie  fact  that  the  map  of  the  route  as 


of  directors  as  the  location  of  the 
road  is  not  an  appropriation  or  lo- 
cation giving  rights  against  third 
persons.  Chesapeake  &c.  R.  Co. 
V.  Deepwater  &c.  R.  Co.,  57  W.  Va. 
641,  50  S.  E.  890. 

"'"  New  York  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  11  Abb.  (N.  Y.) 
X.  C.  386.  Where  the  line  of  the 
road  was  indicated  in  the  vote  of 
tlic  directors  adopting  a  location 
only  by  reference  to  the  course  fol- 
lowed by  the  center  line  of  the  road, 
without  any  specification  as  to  the 
width  to  be  taken,  it  was  held  that 
the  location  was  fatally  defective. 
New  York  &c.  R.  Co.  v.  New  York 
&c.  R.  Co.,  52  Conn.  274,  25  Am. 
&   Eng.  R.  Cas.  215. 

76  Housatonic  R.  Co.  v.  Eee  &c. 
R.  Co.,  118  Mass.  391;  Vail  v.  Mor- 
ris &c.  R.  Co.,  21  N.  J.  E.  189: 
Heise  v.  Pennsylvania  R.  Co.,  62 
Pa.  St.  67;  Strang  v.  Reloit  &c.  R. 
Co.,  16  Wis.  635.  See  generally 
Co.,  154  Pa.  St.  475.  25  Atl.  1082. 


Wilder  V.  Bostoa  &c.  R.  Co.,  161 
Mass.  387,  Zl  N.  E.  380;  Converts 
Appeal,  18  Mich.  459;  People  v. 
Brooklyn  &c.  R.  Co.,  89  N.  Y.  75; 
Hetfield  v.  Central  R.  Co.,  29  N. 
J.  L.  571.  Hut  he  may,  by  his  ac- 
tions after  having  received  actual 
knowledge  of  the  proposed  route, 
waive  his  right  to  objection  to  con- 
demnation proceedings  upon  the 
grounds  of  indefiniteness  in  the  lo- 
cation of  the  road  as  approved  by 
the  railroad  commissioners.  New 
York  &c.  R.  Co.  v.  New  York  &c. 
R.  Co.,  52  Conn.  274;  Denver  &c. 
R.  Co.  v.  Canon  City  &c.  R.  Co., 
99  U.  S.  463,  25  E.  ed.  438;  Atchi- 
son &c.  R.  Co.  V.  Mecklim,  23  Kans. 
167;  Drury  v.  Midland  R.  Co.,  127 
Mass.  571;  Harding  v.  Biggss,  172 
^lass.  590,  52  N.  E.  1060;  Duck 
River  &c.  R.  Co.  v.  Cochrane.  3 
Lea   (Tenn.)   478. 

"7  State  v.    Brooklyn   &c.   R.   Co.. 
89  N.  Y.  75. 


585 


LOCATION  OF  THE  ROAD 


§1136 


filed  stops  short  of  one  of  the  chartered  termini  does  not  work  a 
change  in  the  termini  nor  amount  to  an  abandonment  by  the 
company  of  a  portion  of  the  autliorized  road,  and  its  right  to 
operate  the  road  throughout  its  entire  length  as  laid  down  in  the 
charter  can  not,  on  that  account,  be  questioned  by  the  state. '^^ 

§  1136   (927).     Effect  of  location — When  location  is  complete. 

— When  a  proposed  line  has  been  regularly  located  and  staked 
off,  and  the  expense  thereof  has  been  paid,  the  corporation  by 
which  it  is  done  has  a  prior  claim  to  the  right  of  way  for  a  rcason- 
al)le  time,  which  cannot  be  defeated  l)y  another  company  that 
procures  voluntar}-  conveyances  from  the  owners  before  the  pro- 
ceedings in  condemnation  instituted  by  the  first  company  have 
terminated."  The  first  company,  in  such  a  case,  it  has  been  held, 
can  condemn  the  right  of  way  in  the  hands  of  the  purchasing 
compau}'  in  the  same  manner  that  it  might  have  condemned  it  in 


"s  People  V.  Brookl}-!!  &c.  R.  Co., 
89  N.  Y.  75,  9  Am.  &  Eng.  R.  Cas. 
454;  ]\Iaaon  v.  Brooklyn  &c.  R.  Co., 
35  Barb.  (N.  Y.)  Z72).  Compare  in 
Johnson  v.  Delaware  &c.  R.  Co., 
245  Pa. -338,  91  Atl.  618;  however, 
it  is  held  that  there  must  be  a  pre- 
liminar\'  survej-  with  necessary 
maps  and  profiles  and  the  adoption 
of  a  surveyed  line  and  that  the  com- 
pany had  not  sufficiently  complied 
with  such  requirement  under  the 
facts  of  the  case,  but  had  aban- 
doned the  terminus  originally  con- 
templated. 

'9  Sioux  City  &c.  R.  Co.  v.  Chi- 
cago &c.  R.  Co.,  27  Fed.  770,  25 
\m.  &  Eng.  R.  Cas.  150;  Morris 
&c.  R.  Co.  V.  Blair,  9  N.  J.  Eq.  635; 
Titusville  &c.  R.  Co.  v.  Warren 
&c.  R.  Co.,  12  Phila.  (Pa.)  642; 
Wiiliamsport  &c.  R.  Co.  v.  Phila- 
delphia &c.  R.  Co.,  141  Pa.  St.  407, 
21  Atl.  645,  12  L.  R.  A.  220,  and 
note;  Barre  R.  Co.  v.  INlontpelier 
&c.  R.  Co..  61  Vt.   1,  17  Atl.  923, 


4  T..  R.  A.  785,  and  note,  15  Am.  St. 
877.  See  Denver  &c.  R.  Co.  v. 
Canon  City  &c.  R.  Co.,  99  U.  S. 
463,  25  L.  ed.  438;  Boston  &c.  R. 
Co.  v.  Lowell  &c.  R.  Co.,  124  Mass. 
368;  Pittsburgh  &c.  R.  Co.  v.  Pitts- 
burgh &c.  R.  Co.,  159  Pa.  St.  331. 
28  .Ml.  155:  Sulphur  Springs  &c. 
R.  Co.  V.  St.  Louis  &c.  R.  Co.,  2 
Tex.  Civ.  App.  650,  22  S.  W.  107. 
The  text  is  quoted  with  approval 
in  Kanawha  &c  R.  Co.  v.  Glen  Jean 
&c.  R.  Co.,  45  W.  Va.  119,  30  S.  E. 
86,  88.  See  also  Chesapeake  &c. 
R3'.  Co.  V.  Deepwater  R.  Co.,  57 
W.  Va.  641,  50  S.  E.  890.  But  it  is 
otherwise  where  the  conveyance  is 
obtained  and  recorded  before  the 
location  is  made  by  the  company 
seeking  to  condeirm.  Elting  &c. 
Co.  V.  Williams,  Z6  Conn.  310.  And 
see  Atlanta  &c.  R.  Co.  v.  Southern 
R.  Co..  131  Fed.  657;  Minneapolis 
&c.  R.  Co.  V.  Chicago  &c.  R.  Co., 
116  Iowa  681,  88  N.  W.  1082. 


<}  1136 


RAILROADS 


586 


the  hands  of  the  original  owners.^"  The  location  of  the  road  re- 
sults only  from  some  definite  action  on  the  part  of  the  corpora- 
tion itself.  An  engineer  alone  cannot  locate  a  railroad  so  as  to 
give  title  to  the  company  that  employs  him  ;  and  a  preliminary 
survey  made  by  an  engineer,  which  has  never  l)een  reported  to 
or  adopted  by  the  company,  does  not  constitute  a  legal  location 
of  the  line  of  the  railroad  A\hich  \\ill  give  such  compan}-  priority 
over  another  company  that  has  adopted  a  line  covering  a  portion 
of  the  same  territory. ^^  Where  two  or  more  experimental  sur- 
^eys  were  made  in  succession,  and  various  resolutions  were 
passed  by  the  directors  adopting  the  diiTerent  routes  surveyed, 


so  Sioux  City  &c.  R.  Co.  v.  Chi- 
cago &c.  R.  Co..  27  Fed.  770.  In 
this  case  Judge  Shiras  said:  "The 
injustice  and  injur_v  to  private  and 
public  rights  alike,  which  would 
arise  were  it  held  that  after  a  com- 
pany has  duly  survej'ed  and  located 
its  line  of  railwaj',  and  is  in  good 
faith  preparing  to  carry  forward 
the  construction  of  its  road,  some 
other  company  maj'.  bj-  private 
jjurchasc.  procure  the  right  of  way 
over  parts  of  the  located  line,  and 
either  prevent  the  construction  of 
the  road  or  extort  a  heavy  and 
exorbitant  payment  from  the  com- 
pany first  locating  its  line  as  a  con- 
dition to  the  right  to  build  the 
same  as  originally  located,  are 
strong  reasons  for  holding  that  the 
first  location,  if  made  in  good  faith 
and  followed  up  within  a  reason- 
able time,  may  confer  the  prior 
right,  even  though  a  rival  company 
may  have  secured  the  right  of  way 
by  purchase  from  the  property- 
owners  after  the  location,  but  be- 
fore the  application  to  the  sheriflf 
for  the  appointment  of  commis- 
sioners." But  see  this  case  distin- 
guished in  Minneapolis  &c.  R.  Co. 


V.  Chicago  &c.  R.  Co..  116  Iowa 
681.  88  N.  W.  1082.  1085.  Aban- 
donment of  a  surveyed  branch  rail- 
road can  be  asserted  only  by  the 
state,  not  by  another  company  at- 
tempting to  use  the  right  of  waj-. 
Pittsburgh  &c.  R.  Co.  v.  Pitts- 
burgh &c.  R.  Co..  159  Pa.  St.  331. 
28  .Atl.  155. 

siWilliamsport  &c.  R,  Co.  v. 
Philadelphia  &c.  R.  Co..  141  I'a. 
St.  407.  21  Atl.  645.  12  L.  R.  A. 
220,  and  note,  47  Am.  &  Eng.  R. 
Cas.  224.  An  engineer  may  make 
explorations  in  advance  of  a  loca- 
tion, or  he  may  remark  the  line  or 
adjust  the  grades  after  the  adop- 
tion of  a  location,  but  an  engineer 
alone  can  not  locate  a  railroad  so 
as  to  give  title  to  the  company  that 
CTi'ploys  him.  He  is  not  the  com- 
pany. The  right  of  eminent  do- 
rncin  does  not  reside  in  him.  Wil- 
hamsport  &c.  R.  Co.  v.  Philadcl-. 
phia  &c.  R.  Co..  141  Pa.  St.  407.  21 
Atl.  645,  12  L.  R.  A.  220.  See  also 
Northern  Pac.  R.  Co.  v.  Doherty. 
100  Wis.  39,  75  N.  W.  1079;  and 
Kanawha  &c.  R.  Co.  v.  Glen  Jean 
&c.  R.  Co..  45  W.  Va.  119,  30  S.  E. 
86,  88  (quoting  text). 


587 


LOCATION  OF  THE  ROAD 


§  1136 


it  was  held  th.'it  the  location  of  the  road  involved  the  abandon- 
ment of  the  route  previously  adopted  ;  and  that,  where  the  route 
first  surveyed  was  abandoned  and  then  re-adopted,  the  ri,«-hts  of 
the  corporation  dated  from  the  passage  of  the  resolution  by 
which  it  w^as  finally  designated  as  the  line  of  the  road,  although 
the  preliminary  survey  had  been  made  several  months  before. ^- 
In  some  of  the  states,  as  we  have  already  seen,  a  map  of  the 
proposed  route  must  be  filed  with  a  designated  public  officer  of 
each  county  through  which  the  proposed  road  runs,  and  notice 
given  to  the  land-owners  before  the  "location"  is  complete.^^  And 
this  requirement  is  usually  made  where  grants  of  public  land  are 
made  to  railroads.^*  But  when  the  required  map  is  filed  and 
notice  given,  the  company  acquires  a  prior  right  to  construct  a 
railroad  upon  such  line,  exclusive  of  all  other  railroad  corpora- 
tions and  free  from  the  interference  of  any  party,  and  this  right 
ripens  into  title  as  soon  as  the  land  is  purchased  or  taken  and 
compensation  is  paid  under  proper  condemnation  proceedings.*^ 
If  the  statute  does  not  provide  for  a  survey  or  location,  nor  re- 
quire a  map,  survey  or  description  to  be  recorded,  the  company 
which  first  institutes  proceedings  to  condemn  a  particular  tract 
of  land  will  have  priority  of  right  to  appropriate  it,**^  provided 


s-  Hagner  v.  Pennsylvania  &c.  R. 
Co.,  154  Pa.  St.  475,  25  All.  1082. 

8^  The  filing  of  a  map  was  not 
essential  to  the  location  of  a  road 
in  North  Carolina  prior  to  1872. 
Purifoy  v.  Richmond  &c.  R.  Co.. 
108  N.  Car.  100,  12  S.  E.  741,  46 
Am.  &  Eng.   R.   Cas.  232. 

8*  See  Baker  v.  Gee,  1  Wall.  (U. 
S.)  333,  17  L.  ed.  563;  Western  Pac. 
R.  Co.  V.  Tevis,  41  Cal.  489;  Hanni- 
bal &c.  R.  Co.  V.  Smith,  41  Mo.  310. 
The  filing  of  the  map  definitely 
fixes  the  location,  although  no  sur- 
vey has  been  made.  Southern  Pac. 
R.  Co.  V.  United  States.  69  Fed.  47; 
Kansas  Pac.  R.  Co.  v.  Dunmeyer, 
113  U.  S.  629,  5  Sup.  Ct.  566,  28  L. 
ed.  1122. 


85  Rochester  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  110  X.  Y.  128. 
17  N.  E.  680,  35  Am.  &  Eng.  R. 
Cas.  267.  The  map  and  profile 
filed  in  the  clerk's  office,  with  proof 
of  the  construction  of  the  road  on 
the  line  indicated,  is  sufficient  to 
show  such  a  permanent  location  as 
to  entitle  it  to  have  a  tax  voted  to 
it  put  upon  the  tax-duplicate,  un- 
der the  Indiana  statute.  Chaflfyn 
V.  State.  91  Ind.  324. 

86  Lake  ]\Ierced  Water  Co.  v. 
Cowles,  31  Cal.  215,  But  see  At- 
lanta &c.  R.  Co.  V.  Southern  R. 
Co.,  131  Fed.  657.  666,  in  which, 
however,  the  text  is  cited  with  ap- 
proval. See  also  Minneapolis  &c. 
R.  Co.  V.  Chicago  &c,  R,  Co.,  116 


:s  n:}6  RAILROADS  588 

such  proceed  in.ys  have  bei-n  hiw  fully  beiiuu.'^'  \\here  the  statute 
does  not  require  a  raih'oad  company,  after  making  a  location,  to 
keep  stakes  in  position  along  the  proposed  line,  or  to  file  or  record 
a  map  of  its  proposed  route,  a  failure  to  keep  its  lines  staked  out 
will  not  imply  an  abandonment  of  the  location  so  as  to  estop  the 
company  from  denying  the  right  of  another  company  to  construct 
its  road  thereon.^®  As  against  the  land-owner  himself,  under  the 
laws  of  most  of  the  states,  the  corporation  acquires  no  rights  by 
the  act  of  location  except  a  paramount  right  of  purchase  or  con- 
demnation for  railroad  purposes  as  soon  as  the  value  of  the  land 


Iowa  681,  88  X.  W.  1082,  1085,  also  of  Barro  R.  Co.  v.  Montpelier  Coni- 
citing  text.  It  should  be  noted  panics,  61  Vt.  1,  17  Atl.  923,  4  L. 
tliat  in  these  cases  the  company  R.  A.  785,  15  Am.  St.  877,  and 
against  which  the  condemning  com-  similar  cases  therein  cited,  stands 
pany  was  unsuccessfully  claiming  upon  the  effect  of  the  filing  and 
a  prior  right  was  a  purchaser,  or  registering  of  a  definite  survey  and 
treated  as  a  purchaser,  rather  than  location  made  in  pursuance  of  stat- 
as  an  appropriator  under  the  em-  utc  law.  That  case,  and  those  up- 
inent  domain,  and  the  statutes  on  whicli  it  rests,  arc  placed  upon 
were  also  different  from  those  in-  the  ground  that  by  the  require- 
volved  in  some  of  the  other  cases.  nient  of  a  detinitc  survey,  and  its 
We  quote  from  the  opinion  of  the  registration,  the  Legislature  in- 
able  judge  in  the  federal  case,  as  tended  that  thereby  a  prior  right 
follows:  "The  appellant  acquired  to  appropriate  the  lands  pointed 
no  title  or  interest  in  the  land  by  out  should  inure,  and  that  this 
merely  commencing  a  proceeding  right  is  a  lien  ()r  right  of  interest 
for  its  appropriation,  nor  the  land-  in  the  land,  which  would  ripen  m- 
owner  any  right  to  require  the  pe-  lo  a  title  upon  a  purchase  or  con- 
titioner  to  take  the  land  it  sought  demnation.  Mere  priority  of  right 
to  appropriate.  The  purpose  to  accorded  to  one  petitioner  over 
appropriate  may  be  abandoned  another,  upon  the  ground  of  pri- 
even  after  the  assessment  of  dam-  ority  in  time  should  not  have  any 
ages.  (Citing  a  number  of  author-  retrospective  operation,  so  as  to 
ities.)  The  only  right  which  can  give  precedence  over  an  earlier  ac- 
he said  to  result  from  mere  pri-  quisition  of  the  same  right  of  way 
ority   of  time   in    the   institution    of  by  contract." 

such  a  proceeding  is  .-in  eqnit-ible  ^7  San  Francisco  &c.  Co.  v.  Ala- 
right  of  priority  over  a  later  effort  meda  Water  Co..  36  Cal.  639. 
to  acquire  the  same  property  for  a  '^'^  Pittsburgh  &c.  R.  Co.  v.  Pitts- 
like  purpose,  whether  by  a  like  pro-  burgh  &c.  R.  Co..  159  Pa.  St.  331. 
ceeding  or  contract  with  notice,  28  Atl.  155,  57  Am.  &  Eng.  R.  Cas. 
actual    or    constructive.      The    case  46.      In    ibis   case   it   was   held   that 


589 


LOCATION  OF  THE  ROAD 


§  1137 


lias  been  lei:;"ally  ascertained  and  compensation  paid.^^  It  can 
not  enter  upon  the  land  for  the  purpose  of  constructing  its  road 
r.ntil  the  damages  have  been  assessed  and  paid  or  secured.^" 
Where.  ho\ve\er,  the  right  to  the  location  has  become  fixed,  the 
railroad  company  can  not  be  deprived  of  its  priority  by  the  sub- 
sequent incorporation  of  a  city  which  included  the  lands  through 
w  hich  the  railroad  was  laid  out.^^ 

§  1137  (927a.)  Construction  of  "from"  and  "to" — Terminus 
"at  or  near." — The  question  has  often  arisen  whether  a  charter 
granting  the  right  to  construct  a  railroad  "from"  one  named 
terminus  "to"  another  authorizes  the  construction  of  a  road  into 
the  corporate  limits  of  these  cities  or  towns,  or  whether  it  only 
confers  the  right  to  construct  the  road  to  the  boundaries  of  the 
termini.  The  great  weight  of  authority  regards  these  terms  as 
inclusi\e,  and  as  giving  the  railroad  company  the  right  to  enter 
the  terminus.'-'-     And  the  case  is  especially  clear  where  the  rail- 


the  lapse  of  five  years  and  two 
months'  time  after  the  location  of 
a  branch  road,  without  anything 
being:  done  toward  its  construction, 
i>  not  sufficient  evidence  of  the 
abandonment  of  the  location.  See 
New  Brighton  &c.  R.  Co.  v.  Pitts- 
burgh &c.  R.  Co..  105  Pa.  St.  13: 
Washington  &c.  R.  Co.  v.  Coeur 
D'Alene  &c.  Nav.  Co.,  160  U.  S. 
n,  16  Sup.  Ct.  231,  40  L.  ed.  346. 

S9  In  Siou.x  City  &c.  R.  Co.  v. 
Chicago  &c.  R.  Co.,  27  Fed.  770, 
Judge  Shiras  said:  "The  compau}^ 
(h^es  not  perfect  its  right  to  the  use 
of  the  land,  as  against  the  owner 
tliereof,  until  it  has  paid  the  dam- 
ages, but  as  against  the  railroad 
company,  it  may  have  a  prior  right 
and  better  equity.  The  right  to 
the  use  of  the  way  is  a  public,  not 
a  private  right.  It  is.  in  fact,  a 
grant  from  the  state,  and  although 
tlie  payment  of  the  damages  to  the 
owner   is   a   necessary   prerequisite, 


tlie  state  may  define  who  shall  have 
the  prior  right  to  pay  the  dam-' 
ages  to  the  owner,  and  thereby'  ac- 
quire a  perfected  right  to  the  ease- 
ment. The  owner  can  not  by  con- 
vcj-ing  the  right  of  way  to  A., 
thereby  prevent  the  state  from 
granting  the  right  to  B.  AI!  that 
the  owner  can  demand  is  that  his 
damages   shall   be   paid." 

po  When  the  company  locates  its 
line  over  land  it  secures  a  vested 
right  to  enter  and  occupy  the  lands 
covered  as  soon  as  the  damages 
have  been  paid  or  secured.  Laf- 
ferty  v.  Schuylkill  &c.  R.  Co.,  124 
Pa.  St.  297.  16  Atl.  869,  3  L.  R.  A. 
124,  and  note,  10  Am.  St.  587,  36 
Am.  &  Eng.  R.  Cas.  575.  Elliott 
Roads  and  Streets  ('3rd  ed.)  §  271. 
See  post  §   1248. 

91  Dowie  V.  Chicago  &c.  R.  Co., 
214  111.  49,  IZ  N.  E.  354. 

^2  Chicago  &c.  R.  Co.  v.  Chicago 
&c.  R.  Co.,  112  111.  589:   St.  Louis 


§1138 


RAILRO.VDS 


590 


road  companv.  l)y  its  charter,  is  authorized  to  bring-  its  road  to  a 
city  and  is  also  ijiven  the  right  to  acquire  property  within  it.^' 
But  it  would  seem  that  a  railroad  company  having  built  its  road 
to  the  town  named  as  a  terminus  under  a  charter  thus  limited 
can  not  be  compelled  to  run  its  tracks  into  and  construct  depots 
in  the  town."*  The  terminus  is  sometimes  indehnitely  designated 
in  the  charter  as  "at  or  near"  a  specified  town.  This  term  will 
receive  a  reasonable  construction.  In  one  case,  where  a  charter 
authorized  a  terminus  thus  designated,  it  was  held  that  a  loca- 
tion one  and  one-half  miles  from  the  town  named  was  not  an 
abuse  of  the  company's  discretion."-' 

§1138  (928).  Contracts  to  influence  location.  —  Contracts 
made  with  the  officers  of  a  railroad  company,  and  for  their  own 
personal  benefit,  by  which  it  is  sought  to  influence  them  to  pro- 
cure the  road  to  be  built  on  a  particular  location,""  or  to  procure 
the  location  of  a  depot  at  a  i)articular  point."'  are  absolutely  void. 
Thus  a  contract  bv  which  the  officers  of  the  company  are  to  be 


&c.  R.  Co.  V.  Hannibal  &c.  Co., 
125  Mo.  82,  28  S.  W.  483;  Waycross 
&c.  R.  Co.  V.  Offerman  &c.  R.  Co., 
109  Ga.  827,  35  S.  E.  275;  Western 
Pennsylvania  R.  Co.'s  Appeal,  99 
Pa.  St.  155;  Tennessee  &c.  R.  Co. 
V.  Adams,  40  Tenn.  596:  Rio 
Grande  R.  Co.  v.  Brownsville,  45 
Tex.  88.  See  also  ante,  §  63. 
But  see  Northeastern  R.  Co.  v. 
Payne,  8  Rich.  (S.  Car.)  177;  Com- 
monwealth v.  Erie  &c.  R.  Co.,  27 
Pa.  St.  339,  dl  Am.  Dec.  471,  and 
note.  Oregon  &c.  R.  Co.  v.  Spo- 
kane &c.  R.  Co.,  83  Ore.  528,  163 
Pac.  600,  989,  Ann.  Cas.  1918C,  991. 
995  (citing  text). 

»3  Moses  v.  Pittsburgh  &c.  R.  Co. 
21  111.  516. 

s*  People  v.  Louisville  &c.  R.  Co.. 
(111.),  5  N.  E.  379. 

»5  Park's  Appeal,  64  Pa.  St.  137. 
See  also  Tnsley  v.  Shepard.  31  Fed. 


869;  Kirkbride  v.  Lafayette  Coun- 
ty, 108  U.  S.  211,  2  Sup.  Ct.  501,  27 
L.  cd.  705;  Boston  &c.  R.  Corp.  v. 
Midland  R.  Co.,  1  Gray  (Mass.) 
367;  Moore  v.  Maine  Cent.  R.  Co., 
106  Maine  297,  Id  Atl.  871;  Ottawa 
V.  Canada  &c.  R.  Co.,  Z2>  Can.  Sup. 
Ct.  376.  But  compare  State  v.  Old 
Town  Bridge  Corp.,  85  Maine  28, 
26  Atl.  947. 

osBestor  v.  Wathen,  60  111.  138; 
Berryman  v.  Cincinnati  &c.  R.  Co., 
14  Bush  (Ky.)  755;  Fuller  v.  Dame, 
18  Pick.  (Mass.)  472. 

9'  Pacific  R.  Co.  V.  Seely.  45  Mo. 
212.  100  Am.  Dec.  369;  Holladay  v. 
Patterson,  5  Ore.  177.  See  also 
Florida  &c.  R.  Co.  v.  State,  31  Fla. 
482.  13  So.  103,  20  L.  R.  A.  419,  34 
.Am.  St.  30;  Peckham  v.  Lane,  81 
Kans.  489,  106  Pac.  464,  25  L.  R.  A. 
(N.  S.)  967. 


591 


LOCATION  OF  THE  ROAD 


1138 


given  a  share  in  certain  lands,  on  condition  that  the  railroad 
shall  be  so  located  as  to  pass  through  them,  is  illegal  and  void.°* 
Such  an  agreement,  it  is  said,  must  either  be  in  the  nature  of  a 
bribe  to  procure  the  location  of  the  road  where  it  would  not  be  of 
the  greatest  benefit  to  the  stockholders,  or  it  is  a  contract  to  pay 
the  directors  for  doing  what  they  were  already  bound  to  do  but 
were  fraudulently  claiming  they  wcndd  not  do,  and  is.  therefore, 
without  consideration  ;  and  in  either  case  it  cannot  be  enforced.^'^ 
Such  a  contract  will  not  be  enforced  even  when  the  officers 
profess  to  act  for  the  company  in  making  it.  Thus  a  contract  to 
lay  off  160  acres  of  land  into  town  lots,  and  to  make  a  deed  to 
one-fourth  of  the  lots  to  such  persons  as  the  directors  might 
designate,  in  consideration  that  a  depot  should  be  located  on  the 
lands,  is  contrary  to  sound  public  policy,  and  can  not  be  en- 
forced even  at  the  suit  of  the  railroad  company.^  Contracts  by 
which  some  benefit  is  secured  to  the  corporation  itself  by  the 
choice  of  a  particular  location  are  upheld  so  long  as  they  do  not 
infringe  the  rights  of  the  public,  and  for  this  reason  contracts  of 
subscription  and  grants  of  land,  conditioned  upon  the  location  of 
the  road  or  a  depot  at  a  particular  place,  if  fairly  made,  are  up- 
held in  most  of  the  states.-     But  contracts  by  which  it  is  sought 


98  Woodstock  Iron  Co.  v.  Rich- 
mond &c.  Extension  Co.,  129  U.  S. 
643,  9  Sup.  Ct.  402,  32  L.  ed.  819, 
38  Am.  &  Eng.  R.  Cas.  683.  Cook 
V.  Sherman,  20  Fed.  167,  16  Am.  & 
Eng.  R.  Cas.  561.  In  Union  Pacific 
R.  Co.  V.  Durant,  3  Dill.  (U.  S.) 
343,  1  Cent.  L.  J.  581,  it  was  held 
by  Judge  Dillon  that  where  the 
president  uses  his  power  oppres- 
sively and  by  threats  to'  compel 
citizens  to  convey  lands  to  him  for 
the  company,  the  court  will  decree 
a  reconveyance  to  the  grantors. 
In  Fuller  v.  Dame,  18  Pick.  (Mass.) 
472  the  owner  of  a  large  tract  of 
land  in  the  south  part  of  Boston 
agreed  with  one  of  the  stockholders 
of  a  railroad  company  to  pay  him 


$9,600  for  his  services  in  inducing 
the  company  to  run  its  road 
through  that  land,  and  to  fix  its 
termination  and  principal  depot  at 
a  certain  point.  Suit  having  been 
brought  upon  the  note,  it  was  held 
that  the  contract  was  contrary  to 
public  policy,  and  that  the  note 
given  in  consideration  of  it  was 
void. 

^•0  Bestor  v.   Wathen,  60  111.   138. 

1  Pacific  R.  Co.  v.  Seely,  45  Mo. 
212.  100  Am.  Dec.  369. 

-  Atlanta  &c.  R.  Co.  v.  Thomas, 
60  Fla.  412.  53  So.  510;  Latham  v. 
Illinois  Cent.  R.  Co.,  253  111.  93. 
97  N.  E.  254:  Cedar  Rapids  &c.  R. 
Co.  V.  Spaflford,  41  Iowa  292; 
Whalen    v.    Baltimore   &c.    R.    Co., 


§1138 


RAILRO.VDS 


592 


to  prevent  the  establishment  of  a  rival  depot  at  some  other  point, 
where  the  interests  of  the  corporation  and  of  the  public  demand 
it/  and  contracts  by  which  it  is  sought  to  bind  the  corporation  to 
select  a  particular  route  can  not  be  enforced  against  the  company 
to  the  injury  of  the  public*  It  is  also  held  in  a  few  cases,  con- 
trary to  what  seems  to  be  the  weight  of  authority,  that,  no  matter 
V  hether  the  public  actually  suffer  any  detriment  or  not.  a  con- 
tract with  the  company  itself  in  a  right  of  way  deed,  requiring  it 


108  -Md.  11.  69  Atl.  390.  129  Am.  St. 
423,  17  L.  R.  A.  (N.  S.)  130;  Mis- 
souri Pac.  Ry.  Co.  v.  Tygard,  84 
Mo.  263,  54  Am.  Rep.  97;  note  to 
Atlanta  &c.  R.  Co.  v.  Camp,  14  Ann. 
Cas.  439;  ante,  §§  140,  417,  440,  441. 
See  also  Piper  v.  Choctaw  &c.  Co., 
16  Okla.  436,  85  Pac.  965.  In  Louis- 
ville &c.  R.  Co.  V.  Sumner,  106  Ind. 
55,  5  N.  E.  404,  55  Am.  Rep.  719, 
the  court  said:  "Public  policy  as 
declared  by  the  legislature  and  en- 
forced by  this  court,  permits  coun- 
ties, cities  and  townships  to  make 
subscriptions  or  donations  to  rail- 
way corporations,  subject  to  condi- 
tions in  respect  to  the  location  of 
depots.  Wc  can  sec  no  good  rea- 
son why  the  courts  should  declare 
a  different  policy  as  between  indi- 
vidual and  railway  companies." 
But  in  Dix  v.  Shaver,  14  Hun  (N. 
Y.)  392,  it  was  held  that  an  agree- 
ment by  a  land-owner  that,  if  the 
railroad  company  will  construct  its 
road  on  a  specified  line,  he  will  pay 
a  certain  sum  of  money,  is  against 
public  policy  and  can  not  be  en- 
forced. And  see  Fort  Edward  &c. 
Co.  V.  Payne.  15  N.  Y.  583;  But- 
ternuts &c.  Tpk.  Co.  V.  North,  1 
Hill  (N.  Y.)  518. 

^  Louisville  &c.  R.  Co.  v.  Sum- 
mer, 106  Ind.  55,  5  N.  E.  404.  55  Am. 
Rep.   719,  24  Am.   &   Eng.   R.   Cas. 


641;  Williamson  v.  Chicago  &c.  R. 
Co.,  53  Iowa  126,  4  N.  W.  870,  36 
Am.  Rep.  206  and  note;  ^larsh  v. 
Fairbury  &c.  R.  Co.,  64  111.  414,  16 
Am.  Rep.  564;  St.  Louis  &c.  R.  Co. 
V.  Mathers,  71  111.  592,  22  Am.  Rep. 
122;  St.  Louis  &c.  R.  Co.  v.  blath- 
ers, 104  111.  257,  9  Am.  &  Eng.  R. 
Cas.  600;  St.  Joseph  &c.  R.  Co.  v. 
Ryan.  11  Kans.  602.  15  Am.  Rep. 
357;  Farrington  v.  Stucky,  165  Fed. 
325.  But  see  Mahaska  Co.  R.  Co. 
V.  Des  Moines  &c.  R.  Co.,  28  Iowa 
437.  In  Lexington  &c.  R.  Co.  v. 
Moore.  140  Ky.  514,  131  S.  W.  257, 
this  general  rule  is  conceded  and 
approved,  but  the  court  held  that 
under  the  agreement  and  facts  of 
the  particular  case  it  did  not  come 
within   the  rule. 

4  But  it  is  held  that  damages 
may  be  awarded  against  a  railroad 
company  for  the  breach  of  an 
agreement  made  in  consideration 
of  a  right  of  way  across  the  plain- 
tiff's lands,  by  which  the  company 
undertoc5k  to  maintain  its  track  at 
certain  places  and  to  provide  the 
plaintiff  with  private  side  tracks 
connecting  with  his  warehouse. 
Chapman  &  Harkness  v.  Mad  River 
&c.  R.  Co.,  6  Ohio  St.  119.  See 
also  Louisville  &c.  R.  Co.  v.  Sum- 
ner, 106  Ind.  55,  5  N.  E.  404.  55  Am. 
Rep.  719. 


593 


LOCATION  OP  THE  ROAD 


§1139 


to  maintain  a  station  or  stop  at  a  certain  place,  even  though  not 
exchisive,  is  void  as  against  public  policy.^ 

§  1139   (929.)      Change    of    location — When    authorized. — The 

general  railroad  laws  of  many  of  the  states  provide  for  slight 
changes  in  the  route  of  a  railroad  whenever  it  is  necessary  to  im- 
prove the  location  and  the  change  can  be  made  without  depart- 
ing from  the  general  route  or  avoiding  any  points  named  in  the 
company's  charter.  Indeed,  it  is  held  that  a  railroad  company 
may,  under  the  general  power  to  locate  its  road,  change  its  loca- 
tion whenever  it  is  shown  to  be  necessary,  so  long  as  no  steps 
have  l)een  taken  toward  securing  possession  of  the  first  location. '^ 


^  Ford  V.  Oregon  Elec.  R.  Co., 
60  Ore.  278,  117  Pac.  809,  Ann.  Cas. 
1914A.  280,  citing  Florida  &c.  R. 
Co.  V.  State,  31  Fla.  482,  13  So.  103, 
20  L.  R.  A.  419,  34  Am.  St.  30; 
bouisville  &c.  R.  Co.  v.  Sumner, 
106  Ind.  55,  5  N.  E.  404,  55  Am.  St. 
719;  Cincinnati  &c.  R.  Co.  v.  Wash- 
burn, 25  Ind,  259;  Texas  &c.  R.  Co. 
V.  Robards,  60  Tex.  545,  48  Am. 
Rep.  268.  But  these  cases,  with 
the  possible  exception  of  the  Flori- 
da case,  do  not  fairly  support  the 
decision,  and  such  an  agreement 
now  seems  permissable  under  the 
Florida   statutes. 

fi  Mahaska  Co.  R.  Co.  v.  Des 
^Foines  Valley  R.  Co.,  28  Iowa  437; 
Hagner  v.  Pennsylvania  &c.  R.  Co., 
154  Pa.  St.  475,  25  Atl.  1082,  57 
Am.  &  Eng.  R.  Cas.  648.  In  this 
last  case  the  court  said:  "It  may 
be  said  that  the  company,  having 
made  its  location,  should  be  held 
to  it.  This  would  impose  unneces- 
sary hardships  upon  the  company. 
The  location  maj-  hive  been  m.'-de 
in  good  faith,  but  subsequent  in- 
vestigation or  action  may  sho\v 
that    a    construction    according    to 


the  location  is  not  feasible.  Sup- 
pose, in  this  case,  the  company 
had  been  restrained  from  crossing 
the  Philadelphia  and  Reading  road 
under  grade,  because  of  unneces- 
sary injury  to  the  road  so  crossed. 
To  hold  that  in  such  a  case  the 
company  had  exhausted  its  powers, 
and  could  not  change  the  location, 
might  deprive  the  public  of  neces- 
sary railroad  facilities.  .  .  .  We -are 
aware  that  it  has  been  decided  that 
a  railroad  company  may  not  change 
its  location  after  damages  for  land 
taken  are  assessed  (Neal  v.  Pitts- 
burgh &c.  R.  Co.,  31  Pa.  St.  19; 
Beale  v.  Pennsylvania  &c.  R.  Co., 
86  Pa.  St.  509);  but  these  deci- 
sions are  based  upon  the  ground 
that  a  railroad  company  has  no 
right  to  experiment  upon  the  ques- 
tion of  damages.  It  can  not  change 
its  location  to  escape  the  payment 
of  unsatisfactory  damages.  But  in 
the  case  before  us  no  work  v/as 
done  on  the  original  line  at  the 
time  the  change  was  made,  and  im 
steps  were  taken  to  assess  dam- 
ages; therefore  the  grounds  upon 
which  the   foregoing  decisions   are 


§  J 1 89  RAILROADS  594 

Grt)ss  injustice  ini^lit  arise  from  holdiiii;-  a  e()ni])an}'  l)()un(l  l)y  all 
the  details  of  an  ex])eriniental  surve}'.'  and  the  C()ni])any  has,  in 
General,  full  power  and  discretion  to  correct  any  errors  in  its 
first  survey.  And  it  will  not  be  disturbed  in  the  exercise  of  this 
discretion  unless  it  has  clearly  erred. ^  The  Supreme  Court  of 
Virginia  has  held  that  a  railroad  company  accepting  an  amend- 
ment to  its  charter,  allowing  it  to  reach  its  terminal  over  a  con- 
necting line  instead  of  over  a  line  of  its  own  construction,  as  re- 
riuired  by  original  charter,  cannot  urge,  as  excuse  for  failure  to 

based  do  not  exist  in  our  case.     If  Ann.    128;    Minneapolis   &c.    R.    Co. 

changes    in    location    can    not    be  v.    St.    Paul    &c.    R.    Co.,    35    Minn, 

made    when    i)ropcr    railroad    con-  265,  28  N.  W.  705,  26  Am.  &  Eng. 

struction  demands  them,  the  public  R.  Cas.  638;  Hewitt  v.  St.  Paul  &c. 

must  suffer  as  well  as  the  corpora-  R.  Co.,  35  Minn.  226,  28  N.  W.  705, 

tion.     Mistakes  will   happen   in    en-  27  -Am.  &  Eng.  R.   Cas.  342;   Miss- 

gineering,  as  well  as  in  other  work,  issippi    &c.   R.   Co.  v.   Devaney,  42 

and  such  mistakes  may  not  be  dis-  Miss.  555,  2  Am.   Rep.  608;   North 

covered   until   after  the   location   of  Missouri    R.    Co.    v.    T.ackland,    25 

the  road.     While  the  location   con-  Mo.    515;    Atlantic    R.    Co.    v.    St. 

tinues,  the  owner,  by  reason  of  the  T.onis,  66   Mo.  228;   New  York  &c. 

appropriation  of  his  land,  may  sus-  R.  Co.,  In  re,  88  N.  Y.  279,  10  Am. 

tain  some  damages.     These  should  &   Eng.   R.   Cas.    113;    South   Caro- 

be    paid,    and    when    they    are    paid  lina   R.   Co.    Ex   Parte,   2   Rich.    (S. 

no    one    is   injured   by  a   change   of  Car.)  434;  South  Carolina  R.  Co.  v. 

location  made  in  good  faith."     Sec  Blake,  9  Rich.  (S.  Car.)  228;  Collier 

also    Washington     &c.    R.    Co.    v.  v.  Union  R.,  113  Tcnn.  96,  83  S.  W. 

Coeur    D'Alenc    &c.    Nav.    Co.,    60  155   (deviation  to  avoid  destruction 

Fed.  881,  affirmed   in   160  U.   S.   11.  of     mill     justified).     P.ut     compare 

16    Sup.    Ct.    231.    40    T..    ed.    346;  State  v.  New  Haven  &c.  R.  Co.,  45 

Memphis    &c.    R.    Co.   v.   Union    R.  Conn.     346;     Leverett     v.     Middle 

Co.,   116  Tenn.  500,  95  S.  W.   1019.  Georgia  &c  R.  Co.,  96  Ga.  385,  24 

"See  Works  v.  Junction   R.   Co.,  S.  E.  154.     Pake  Shore  &c.  R.  Co. 

5  McL.  (U.  S.)  425;  Hoard  v.  Ches-  v.  Baltimore,  149  111.  272,  Zl  N.  E. 

apeake   &c.    R.   Co.,    123  U.   S.  222,  91. 

8   Sup.    Ct.   74,   31    L.   ed.    130;    Eel  «  Hcntz   v.   Long   Island    R.   Co., 

River  &c.   R.  Co.  v.  Field,  (^1  Cal.  13  Barb,  (N.  Y.)   646.     Equity  will 

429,  7  Pac.  814,  22  Am.  &  Eng.  R.  not  restrain  the  directors  of  a  rail- 

Cas.  91;  McCartney  v.  Chicago  &c.  road   company   unless   it   is    shown 

R.  Co.,  112  111.  611;  Mahaska  Co.  R.  that  they  wantonly  or  capriciously 

Co.  V.  Des  Moines  Valley   R.   Co.,  disregard  the  rights  of  others.  Ans- 

28  Iowa  437;  New  Orleans  &c.   R.  pach  v.  Mahanoy  &c.  R.  Co.,  5  Phil. 

Co.   V.    Second    Mnncipality,    1    Pa.  (Pa.)  491. 


595 


LOCATION  OF  THE  ROAD 


§1140 


avail  itself  of  either  method  of  reachiiii;'  the  terminal,  that  both 
methods  would  have  resulted  in  ilnancial  loss  to  the  eom])any.'' 

§  1140  (930).  Change  of  location  after  first  location  is  finally 
completed. — When  the  company  has  exercised  its  discretion  by 
making  a  final  location  of  its  road  and  filing  a  map  of  its  pro- 
posed route,  thereby  fastening  upon  the  right  of  way  its  claim 
for  an  easement/"  and  especially  after  the  damages  have  been 
assessed/^  the  company  can  not  change  its  route  and  invoke  the 
power  of  eminent  domain  to  procure  another  right  of  way  except 
for  reasons  amounting  to  a  legal  necessity  for  the  second  tak- 
ing/- and  a  successor  to  the  original  company  has  no  greater 
rights  as  to  a  relocation  after  its  predecessor  has  exercised  its 
discretion  in  the  matter. ^^  "Once  located,"  it  is  said,  "a  railroad 
is  permanently  located  for  the  wdiole  term  of  its  existence,  sub- 
ject only  to  the  exceptions  of  a  specially  granted  express  legisla- 
tive  enactment,   authorizing  a   change    or    relocation."^''     If    a 


9  Winchester  &c.  R.  Co.  v.  Com- 
monwealth, 106  Va.  264,  57  S.  E. 
692. 

10  San  Francisco  &c.  R.  Co.  v. 
Mahoney,  29  Cal.  112;  Old  Colony 
R.  Co.  V.  Miller,  125  Mass.  1,  28 
Am.  Rep.  194;  Davidson  v.  Boston 
&c.  R.  Co.,  3  Cush.  (Mass.)  91; 
Neal  V.  Pittsburgh  &c.  R.  Co.,  2 
Grant  Cas.  (Pa.)  137,  31  Pa.  St.  19. 

11  Railway  companies,  it  is  said, 
may  make  experimental  surveys  at 
pleasure,  before  finally  locating 
their  route.  But  they  can  not  have 
experimental  suits  at  law,  as  means 
of  chaffering  with  the  land-owners 
for  the  cheapest  route.  The  power 
of  taking  any  man's  land  by  such 
company  is  exhausted  by  a  loca- 
tion. It  can  not  be  indulged  with 
another  choice.  Neal  v.  Pittsburgh 
&c.  R.  Co.,  2  Grant  Cas.  (Pa.)  137, 
31  Pa.  St.  19;  Beale  v.  Pennsylva- 
nia &c.  R.  Co.,  86  Pa.  St.  509. 


12  Brown  v.  Atlantic  &c.  R.  Co., 
126  Ga.  248,  55  S.  E.  24;  Griffin  v. 
House,  18  Johns.  (N.  Y.)  397; 
Moorhead  v.  Little  Miami  R.  Co., 
17  Ohio  340;  Little  Miami  R.  Co. 
V.  Naylor,  2  Ohio  St.  235,  59  Am. 
Dec.  667.  A  railroad  company  may 
condemn  land  for  its  relocation,  if 
there  be  a  manifest  necessity  for 
the  change  of  location,  and  no  det- 
riment accrues  to  the  public.  Miss- 
issippi &c.  R.  Co.  V.  Devaney,  42 
Miss.  555,  2  Am.  Rep.  608.  But  as 
to  what  is  not  such  a  necessity,  see 
Lusby  V.  Kansas  City  &c.  R.  Co.. 
7Z  Miss.  360,  19  So.  239,  36  L.  R. 
A.  510,  and  note;  State  v.  New  Ha- 
ven &c.  R.  Co.,  45  Conn.  346. 

13  Brown  v.  Atlantic  &c.  R.  Co., 
126  Ga.  248,  55  S.  E.  24. 

1*  State  V.  Mobile  &c.  R.  Co.,  86 
Miss.  172,  38  So.  7Z2.  See  also 
State  V.  Sugarland  Ry  Co.,  (Tex. 
Civ.  App.)   163  S.  W.  1047.     Tt  has 


§  1140  RAILROADS  596 

change  of  location  is  made  under  statutory  authority  after  con- 
demnation proceedings  have  begun,  and  because  the  award  of 
damages  is  unsatisfactory,  and  the  proceedings  are  al)andoned. 
the  raih'oad  company  must  pay  all  damages  and  costs  occasioned 
by  their  institution.^''  After  the  road  has  been  constructed  the 
company  will  not  be  permitted  to  change  its  route  and  exercise 
the  power  of  eminent  domain  to  procure  a  new  right  of  way,  ex- 
cepting where  it  has  statutory  authority  to  make  the  change." 
Some  courts,  however,  hold  that  a  railroad  company  may  con- 
demn land  for  the  purpose  of  varying,  altering,  and  repairing  the 
road  upon  a  proper  showing  of  its  necessity.  But  in  such  a  case 
the  petition  for  condemnation  must  allege  in  detail  the  facts 
showing  the  taking  to  be  necessary,  and  such  allegations  are 
traversable  by  the  land-owner.'"  AVhere  the  power  to  change 
the  location  of  a  railroad  whenever  that  location  could  be  im- 
proved was  expressly  given  by  statute,  it  was  held  that  the  power 

l)een  lu-Id  that  where  a  railroad  oontimies.  the  owner,  I)y  reason  of 
was  constructed  and  operated  for  the  appropriation  of  liis  land,  may 
forty  years  its  hDcation  for  a  lon;^  sustain  some  damages.  These 
distance  could  not  be  changed  should  be  paid,  and  when  they  are 
without  legislative  authority,  but  if  paid,  no  one  is  injured  bj'  a  change 
so  authorized  a  member  of  the  of  location  made  in  good  faith." 
general  public  could  have  no  com-  i''  \^'orks  v.  Junction  R.  Co.,  5 
mon  law  right  to  damages.  Bryan  JNIcL.  (U.  S.)  425:  Cleveland  &c. 
V.  Louisville  &c.  R.  Co..  244  Fed.  R.  Co.  v.  .Specr.  56  I'a.  St.  .i25,  94 
650.  Am.  Dec.  84.  See  also  State  v. 
1'  North  Missouri  R.  Co.  v.  Rey-  Xorwalk  &c.  Tpk.  Co..  10  Conn, 
nal,  25  Mo.  534:  Leisse  v.  St.  Louis  157:  Lusby  v.  Kansas  Cit}-  &c.  R. 
Sec.  R.  Co.,  2  Mo.  App.  105,  72  Mo.  Co..  73  ^liss.  360,  19  So.  239.  36  L. 
561,  6  Am.  &  Eng.  R.  Cas.  61Lnote:  R.  A.  510:  Brown  v.  .Atlantic  &c. 
Hudson  River  R.  Co.  v.  Cutwater,  R.  Co..  126  Ga.  248,  55  S.  E.  24; 
3  Sandf.  (X.  Y.)  689:  Drath  v.  Louisville  &c.  Turnp.  Co.  v.  Nash- 
Burlington  &c.  R.  Co.,  15  Nelir.  villc  &c.  Tpk.  Co.,  2  Swan  (Tenn.) 
367,  18  N.  W.  717.  20  Am.  &  Eng.  282.  But  see  Colorado  Eastern  R. 
R.  Cas.  385.  In  Hagner  v.  Penn-  Co.  v.  Union  Pac.  R.  Co..  41  Fed. 
sylvania    &c.    R.    Co..    154    Pa.    St.  293. 

475,    25    .\tl.    1082,    the    opinion    is  ^'  Knight  v.   Carrolton   R.   Co.,  9 

expressed    that    the    mere    location  La.    .Ann.    284:    Mississippi    &c.    R. 

of  a  railroad  across  land  may  give  Co.  v.  Devaney.  42  Miss.  555.  2  .Am. 

a    claim    for    damages,    though    the  Rep.  608:  South  Carolina  R.  Co.  v. 

land     is    never    condemned.      The  Blake.  9  Rich.  (S.  Car.)  228. 
court    says:     "While     the     location 


'.f)7 


LOCATION  OF  THE  ROAD 


§1140 


ccmld  be  exercised  after  a  partial  construction  of  the  road.^^  And 
it  is  firmly  settled  by  the  weight  of  authority  that  making  one 
appropriation  does  not  exhaust  the  power,  but  new  appropria- 
tions of  land  for  the  construction  of  additional  tracks,  turnouts, 
engine  houses,  and  other  railroad  facilities,  may  be  made  from 
time  to  time  as  the  necessities  of  the  road  may  require.^''  The 
right  to  change  the  location  does  not,  as  a  rule,  authorize  a 
change  in  the  termini,  but  only  alterations  in  the  route  between 
the  same  termini.-'^  It  has  been  held,  however,  that  a  railroad 
company,  ha^•ing  authority  to  construct  branches,  mav  effect  a 


IS  Eel  River  &c.  R.  Co.  v.  Field. 
67  Cal.  429,  7  Pac.  814:  Cape  Girar- 
deau &c.  R.  Co.  V.  Dennis,  67  INIo. 
438.  In  the  case  of  Eel  River  &c. 
R.  Co.  V.  Field,  the  statute  pro- 
vided as  follows:  "If  at  any  time 
after  the  location  of  the  railroad 
and  the  filing  of  the  maps  and  pro- 
files thereof,  as  provided  in  the 
preceding  section,  it  appears  that 
the  location  can  be  improved,  the 
directors  maj-  .  .  .  alter  or  change 
the  same  and  cause  new  maps  and 
profiles  to  be  filed  showing  such 
changes,  in  the  same  ofifices  where 
the  originals  are  on  file,  and  may 
proceed  in  the  same  manner  as  the 
original  location  was  acquired  to 
acquire  and  take  possession  of  such 
new  line,  and  must  sell  or  relin- 
quish the  lands  owned  bj'  them  for 
the  original  location  within  five 
years  after  such  change.  No  new 
location  shall,  as  herein  provided, 
be  so  run  as  to  avoid  any  points 
named  in  their  articles  of  incor- 
poration." 

^^  St.  Louis  &c.  R.  Co.  V.  Petty. 
57  Ark.  359.  21  S.  W.  884.  20  L.  R. 
A.  434,  and  note;  Central  Branch 
Union  Pac.  R.  Co.  v.  Atchison  &c. 
R.  Co..  26  Kans.  669:  Water  Comrs. 
v.    Lawrence.   3    Edw.    Ch.    (N.    Y.) 


552;  Ligat  v.  Commonwealth,  19 
Pa.  St.  456:Philadelphia  &c.  R.  Co. 
V.  Williams.  54  Pa.  St.  103;  Black 
v.  Philadelphia  &c.  R.  Co.,  58  Pa. 
St.  249;  South  Carolina  R.  Co.  v. 
Blake.  9  Rich.  (S.  Car.)  228.  "It 
would  be.  indeed,  a  disastrous  rule 
to  hold  that  a  railroad  companj^ 
must,  in  the  first  instance,  acquire 
all  the  ground  it  will  ever  need  for 
its  own  convenience  or  the  public 
accommodation.  .  .  .  The  greatest 
degree  of  sagacity  could  hardly  de- 
termine precisely  what  conveni- 
ences the  future  might  demonstrate 
to  be  necessary  to  do  its  business 
with  facility."  Chicago  &c.  R.  Co. 
V.  Wilson.  17  111.  123;  Pabst  Brew- 
ing Co.  V.  Milwaukee,  157  Wis. 
158.  147  N.  W.  47,  49  (quoting  te.xt 
and  note).  See  also  Prather  v. 
JefYersonville  &c.  R.  Co.,  52  Ind. 
16.  42:  Toledo  &c.  R.  Co.  v.  Dan- 
iels. 16  Ohio  St.  390.  But  see  Lodge 
v.  Philadelphia  &c.  R.  Co..  8  Phila. 
(Pa.)   345. 

-0  Snook  V.  Georgia  Imp.  Co..  83 
Ga.  61,  9  S.  E.  1104;  Attorney-Gen- 
eral V.  West  Wisconsin  R.  Co..  36 
Wis.  466.  But  see  Protzman  v. 
Indianapolis  Co..  9  Ind.  467,  68  Am. 
Dec.   650. 


RAILROADS 


598 


virtual  change,  not  only  of  a  portion  of  its  route,  but  of  its  term- 
inus, by  the  construction  of  a  branch  road,  beginning  at  a  point 
near  the  end  of  the  line  and  running  in  the  same  general  direc- 
tion as  the  main  line  of  the  road.-^  It  has  been  held  that  a  grant 
contained  in  a  special  charter,  of  authority  to  vary  the  route  and 
change  the  location  of  a  railroad  whenever  a  better  and  cheaper 
route  could  be  had,  or  whenever  any  obstacle  occurred,  either  by 
way  of  difficulty  of  construction  or  inability  to  procure  a  right  of 
way  at  reasonable  cost,  does  not  include  authority  to  relocate  the 
line  after  the  road  has  been  constructed,  and  to  condemn  land  on 
which  to  build  the  road  as  relocated.--  Indeed,  most  of  the 
special  charters  granted  to  railroads  have  been  construed  to 
authorize  lout  one  exercise  of  the  power  of  locating  the  road,  and 
after  this  power  has  been  exercised  and  a  final  location  made,  the 
power  is  held  to  be  exhausted,  and  no  change  can  thereafter  be 
made,  except  by  express  consent  of  the  legislature.-^  Where  the 
charter  enumerates  the  causes  for  which  a  change  or  relocation 
may  be  made,  the  route  can  only  be  changed  for  some  cause  that 
is  fairly  within  the  terms  of  the  statute.-"*  In  New  York,  North 
Carolina  and  New  Hampshire,  provision  is  made  for  the  reloca- 


21  Atlantic  &c.  R.  Co.  v.  St.  Louis. 
66  iMo.  228. 

22  Atkinson  v.  Marietta  &c.  R. 
Co.,  15  Ohio  St.  21;  Little  :\Iiami 
R.  Co.  V.  Naylor,  2  Ohio  St.  235. 
59  Am.  Dec.  667;  Moorhead  v.  Lit- 
tle Miami  R.  Co.,  17  Ohio  340. 

23  Works  V.  Junction  R.  Co.,  5 
McL.  (U.  S.)  425;  State  v.  Nor- 
walk  &c.  R.  Co..  10  Conn.  157; 
Brigham  v.  Agricultural  &c.  R.  Co.. 
1  Allen  (Mass.)  316;  Hastings  v. 
Amherst  &c.  R.  Co.,  9  Cush. 
(Mass.)  596;  Doughty  v.  Somer- 
ville  &c.  R.  Co..  21  N.  J.  L.  442: 
Morris  &c.  R.  Co.  v.  Central  R. 
Co.,  31  N.  J.  L.  205;  Brooklyn  Cent. 
R.  Co.  V.  Brooklyn  City  R.  Co..  32 
Barb.  (N.  Y.)  358;  People  v.  New- 
York  &c.  R.  Co..  45  Barb.  (N.  Y.) 
7?,;  Hudson   &c.   Canal   Co.  v.   New- 


York  &c.  R.  Co.,  9  Paige  (N.  Y.) 
323;  Moorhead  v.  Little  Miami  R. 
Co..  17  Ohio  340. 

2*  Works  V.  Junction  R.  Co.,  5 
McL.  (U.  S.)  425;  McRoberts  v. 
Southern  Minn.  R.  Co.,  18  Minn. 
108;  New  York  &c.  R.  Co..  In  re, 
88  N.  Y.  279.  In  Works  v.  Junction 
R.  Co.,  5  McL.  (U.  S.)  425,  it  was 
held  that  the  fact  that  a  town  sit- 
uated upon  the  line  of  the  road 
refused  to  contribute  tow-ard  its 
construction  was  not  sufficient  rea- 
son for  the  relocation  of  the  route 
under  a  charter  authority  to  vary 
the  location  "either  for  the  diffi- 
culty of  construction,  or  of  procur- 
ing a  right  of  way  at  a  reasonable 
cost,  or  whenever  a  better  and 
cheaper  route  can  be  had." 


599 


LOCATION   OF  THE  ROAD 


§1140 


tion  of  a  proposed  railroad  ujx)!!  the  petition  of  any  land-owner 
aggrieved  l)y  the  location  as  made  by  the  company  whenever  a 
better  route  is  shown  to  exist.-"'  \\'here  the  company  has  built 
its  road  without  resorting  to  the  power  of  eminent  domain,  and 
is  able  to  acquire  a  new  right  of  way  by  purchase,  or  otherwise, 
v^ithout  condemnation,  it  has  authcjrity  to  make  any  changes  in 
route  that  do  not  interfere  with  the  rights  of  the  public.-®  And 
the  general  rule  against  changing  the  location  does  not  apply  to 
a  mere  change  of  track  from  one  part  of  the  right  of  way  to  an- 
other.-' It  has  been  held  that  a  provision  in  the  charter  of  a 
railroad  company  rec[uiring  it  to  establish  a  terminal  at  one  of 


25  Where,  in  a  proceeding  under 
the  New  York  statute,  it  appears 
that  notice  of  the  application  for 
commissioners  has  not  been  given 
to  an  individual  whose  lands  will 
be  affected  thereby  such  proceeding 
is  wholly  void.  Norton  v.  Wallkill 
Valley  R.  Co.,  62,  Barb.  (N.  Y.)  77. 
The  commissioners  appointed  by 
the  court  at  the  petition  of  a  land- 
owner, as  provided  by  the  New 
York  statute,  have  jurisdiction  of 
the  entire  subject  of  the  location 
of  the  route  through  the  county 
in  which  the  land  of  the  person 
applying  for  their  appointment  is 
situated,  and  are  not  confined  to 
the  consideration  of  necessary- 
changes  in  that  part  of  the  route 
which  passes  through  the  land  of 
the  petitioner.  Long  Island  R.  Co. 
In  re,  45  N.  Y.  364.  But  they  have 
no  power  to  so  change  a  portion 
of  the  proposed  route  as  to  leave 
it  disconnected  at  either  end  with 
the  other  portions.  People,  ex  rcl. 
Erie  &c.  R.  Co.  v.  Tubbs,  49  N.  Y. 
356.  See  generally  under  the  New 
York  statute.  New  York  &c.  R.  Co. 
Matter  of,  99  N.  Y.  388,  2  N.  E.  35: 
Erie  R.  Co.  v.  Steward,  170  X,  Y. 
172,  63  N.  E.  118. 


26  Mine  Hill  &c.  R.  Co.  v.  Lip- 
pincott,  86  Pa.  St.  468.  See  also 
Dewey  v.  Atlantic  Coast  Line,  142 
N.  Car.  392,  55  S.  E.  292;  Chicago 
&c.  R.  Co.  V.  People,  222  111.  396, 
78  N.  E.  784;  Mobile  &c.  R.  Co.  v. 
State,  89  Miss.  725.  41  So.  295,  299 
(citing  te.xt).  But  where,  in  con- 
sideration of  locating  its  machine 
shop  and  general  offices  in  a  cer- 
tain city,  it  has  received  lands  and 
other  concessions  from  the  city 
and  citizens,  it  is  held  that  it  can 
not,  by  amending  its  charter,  re- 
move them  to  another  city,  and 
that  the  court  may  enforce  specific 
performance  by  enjoining  such  re- 
moval. Tyler  v.  St.  Louis  &c.  R. 
Co.,  99  Tex.  491,  91  S.  W.  1.  See, 
however.  Armour  &  Co.  v.  Texas 
&c.  Ry.  Co.,  258  Fed.  185. 

27  Stark  V.  Sioux  City  &c.  R.  Co., 
43  Iowa  501 ;  Alinneapolis  &c.  R. 
Co.  V.  St.  Paul  &c.  R.  Co.,  35  Minn. 
265,  28  N.  W.  705;  Dougherty  v. 
Wabash  &c.  R.  Co.,  19  Mo.  App. 
419.  But  see  Lake  Shore  &c.  R. 
Co.  V.  Baltimore  &c.  R.  Co..  149 
111.  272,  Z7  N.  E.  91;  Chapman  v. 
Mad  River  &c.  R.  Co..  6  Ohio  St. 
119,  as  to  the  effect  of  constructing 
a  side-track  or  parallel  road. 


§  1  141  RAILROADS  600 

two  points  named  does  not  require  it  to  maintain  a  terminal  at 
each  of  these  points,  thoug'h  it  has  constructed  its  road  to  both 
and  established  terminals  at  lioth.-^ 

§  1141  (931).  Abandonment  of  location. — Effect. — It  is  pro- 
vided by  statute,  in  many  of  the  states,  that  a  faihn-e  on  the  part 
of  a  railroad  company  to  begin  the  construction  of  its  road  with- 
in a  time  limited  shall  amount  to  an  abandonment  of  its  loca- 
tion,'-^ and  many  of  the  states  which  authorize  a  company  to 
change  its  proposed  route  provide  that  such  a  change  shall  work 
an  abandonment  of  so  much  of  the  old  line  as  is  affected  by  the 
change.  By  abandoning  its  location  the  company  loses  all  right 
thereto,  and  the  land  reverts  to  the  owner.^° 

§  1142.  Abandonment — What  constitutes — When  and  how 
shown. — In  the  absence  of  an  express  legislative  enactment  on 
the  subject,  perhaps,  no  court  would  be  justified  in  fixing  a  limit 

-sShorwood    V.    Atlantic    &c.    I>L  R.  Co..  75  l<nva  526,39  N..W.  869; 

Co..  94  \'a.  291,  26  S.   R.  943.  Harrison  v.   Lc.xin.^ton   &c.   R.  Co., 

-!' Sec  Fernow  v.  Chicago  &c.  R.  9  B.  Alon.  (Ky.)  470;  RoanOKe  In- 

Co.,    75    Iowa  526,    39    N.    W.    769.  vestment    Co.    v.    Kansas    City    &c. 

Where  the  statute  provided  that  in  R,  Co.,  108  Mo.  50,  17  S.  W.  1000, 

case  any  railroad  company  should  51   Am.  &  Eng.  R.  Cas.  426;  Troy 

not,  within  twelve  months  after  the  &c.    R.    Co.   v.    Boston    &c,    R.    Co., 

acceptance  of  the  route  by  the  com-  86   N.    V.    107;    Girard    College    &c. 

missioncrs,  pay  for  a  right  of  way  R.    Co.    v.    Thirteenth    &c.    R.    Co., 

over    all    the    land    covered    liy    its  7     Phila.     (Pa.)     620;     Lawson     v. 

location,  such  acceptance  should  be  Georgia    So.    R.    Co.,    142    Ga.    14, 

void,  it  was   held  that  such   failure  82  S.  E.  233.     See  also  Mobile  &c. 

to    pay    for    the    right    of    way   was  R.  Co.  v.  Kamper,  88  Miss.  817,  41 

not   in    the    nature   of   a   forfeiture.  So.  513:  Spencer  v.  Wabash  R.  Co. 

to   be   taken   advantage   of  only   by  (Iowa),    109   N.   W.    453.      But    not 

the    state    in    a    direct    proceeding  where    the    railroad    companj'    has 

against  the  com])any,   but   that   the  been    deeded    the    land    in    fee    by 

whole    proceeding    became    of    no  warranty   deed.      Enfield    Mfg.    Co. 

efifect  upon  the  expiration  of  twelve  v.  Ward,   190   Mass.  314,  76   N.   E. 

months.     New  York  &c.  R.  Co.  v.  1053.     And  abandonment  of  part  of 

Boston  &c.  R.  Co.,  36  Conn.  196.  right  of  way  does  not  transfer  title 

30  New  York  &c.  R.   Co.  v.   Bos-  to  rails,  tics,  and  other   fi.xtures   to 

ton  &c.  R.  Co.,  36  Conn.  196;  ?Iast-  original   grantors   of   right   of  way. 

ings   V.    Burlington    &c.   R.    Co.,   38  llatton  v.  Kansas  City  &c.  R.  Co., 

Iowa  316;    Fernow  v.   Chicago   &c.  253  Mo.  660,  162  S.  W.  227. 


CO! 


LOCATIOX  Ot^  TilE  ROAD 


§  1142 


at  whicli  a  failure  to  construct  its  road  should  he  held  to  he  an 
ahandonment  of  its  lf)cation  on  the  part  of  the  company,  hut,  if 
not  controlled  hy  the  rule  as  to  the  loss  of  rights  hy  prescrip- 
tion-'^^  the  question  is  largely  one  of  intention.  Accordingly,  it  is 
held  that  a  failure  on  the  i)art  of  the  company  to  construct  its 
road  for  a  numher  of  years  is  not  itself  sufficient  to  show  an 
abandonment  of  its  right  of  way.-''-  Neither  does  the  use  of  a 
part  of  the  right  of  way  for  the  erection  of  restaurants  and 
places  of  amusement  constitute  an  abandonment  of  the  part  so 
used  if  such  structures  conduce  to  the  comfort  of  its  passengers 
and  augument  its  business  ;''^  nor  does  the  erection  of  a  public 
elevator  or  warehouse  by  the  company,  or  its  licensee,  to  be  used 
to  facilitate  the  business  of  the  company. ■''*  even  if  such  use  of  its 
lands  could  l)e  considered  as  unauthorized.""'     A  sale  or  transfer 


^'T-  Pittsburgh  &c.  R.  C...  v.  Pitts- 
burgh &c.  R.  Co.,  159  Pa.  St.  331, 
28  Atl.  155.  57  .'Vm.  &  Eng.  R.  Cas. 
46;  Western  Pennsylvania  R.  Co.'s 
Appeal.  104  Pa.  St.  399.  It  has 
been  held  that  an  adjoining  owner 
may  obtain  title  to  a  part  of  the 
right  of  way  of  a  railroad  company 
by  adverse  possession,  where  its 
conduct  shows  a  purpose  to  aban- 
don the  part  of  its  location  of 
wdiich  he  has  taken  pos  ;ession. 
Norton  v.  Londo-i  &c.  R.  Co.,  L. 
R.  9  Ch.  Div.  623,  L.  R.  13  :h.  Div. 
268. 

32Durfee  v.  Peoria  &c  R.  Co., 
140  111.  435,  30  N;  E.  686  (ten 
years);  Barlow  v.  Chicago  &c.  R. 
Co.,  29  Iowa  276  (thirteen  years) : 
Roanoke  Investment  Co.  v.  Kansas 
City  &c.  R.  Co.,  108  Mo.  50.  17  S. 
W.  1000,  51  Am.  &  Eng.  R.  Cas. 
426  (thirteen  years) ;  Kansas  City 
&c.  R.  Co.  v.  Kansas  City  &c.  R. 
Co..  129  Mo.  62,  31  S.  VV.  451; 
Western  Pennsylvania  R.  Co.'s  .\p- 
peal.  104  Pa.  St.  399:  Pittsburgh 
&c.  R.  Co.  V.  Pittsburgh  &c.  R.  Co.. 


159  Pa.  St.  331.  28  Atl.  155,  57  Am. 
&  Eng.  R.  Cas.  46  (five  years).  Un- 
der the  Iowa  statute  a  right  of  waj' 
of  a  railroad,  "not  used  nor  operat- 
ed for  a  period  of  eight  years,"  re- 
verts to  the  owner  of  the  land  from 
which  it  was  taken.  Fernow  v. 
Chicago  &c.  Co.,  75  Iowa  526.  39 
N.  W.  869,  36  Am.  &  Eng.  Cas.  420. 

33  Prospect  Park  &c.  R.  Co.  v. 
A\'illiamson,  91  N.  Y.  552.  Where 
it  was  shown  that  the  depot  was 
not  constructed  upon  ground  con- 
demned for  depot  purposes,  but 
the  land  adjoined  the  depot  and 
was  improved  and  used  for  beauti- 
fying the  depot  grounds,  it  was 
held  that  the  question  whether  the 
land  was  abandoned  should  be  left 
to  the  jury.  Muhle  v.  New  York 
&c.  R.  Co.,  86  Te.x.  459,  25  S.  W. 
607.  reversing  (Tex.  Civ.  App.).  23 
S.  W.  809. 

3-*  Gurney  v.  Minneapolis  &c.  Co.. 
63  Minn.  70,  65  N.  W.  136,  30  L. 
R.  A.  534. 

■■■•  (jurney  v.  Minneapolis  &c.  Co.. 
63    Minn.  70.  65   N.  W.   136,  30   L. 


§  1U2 


RAILROADS 


602 


of  its  right  ol  way  to  another  company,  by  whom  the  road  is  com- 
pleted and  operated,  is  not  an  abandonment.'^®  And  it  has  l)een 
held  that  the  fact  that  a  railroad  company  has  entered  into  a  con- 
tract to  run  its  trains  over  the  road  of  another  company,  and  has 
taken  up  part  of  its  own  track,  and  permitted  the  owner  of  the 
adjoining'  lands  to  take  possession  thereof  for  eulti\ation,  does 


R.  A.  534,  citing  Roby  v.  New  York 
R.  Co.,  142  N.  Y.  176,  36  N.  E. 
1053;  Peirce  v.  15ostoii  &c.  R.  Co., 
141  Mass.  481,  6  N.  E.  96. 

•'<'  United  States  v.  Little  M.iami 
&c.  R.  Co.,  1  l<ed.  700,  9  Rep.  676: 
Henery  v.  Dubuque  &c.  R.  Co.,  2 
Iowa  288;Noll  v.  Dubuque  &c.  R. 
Co.,  32  Iowa  66;  Commonwealth 
V.  Tenth  Mass.  Tpk.  Co.,  5  Cush. 
(Mass.)  509;  CroUey  v.  Minneapo- 
lis &c.  R.  Co.,  30  Minn.  541,  16  N. 
W.  422;  State  v.  Rives,  5  Ired.  L. 
(N.  Car/)  297;  Junction  R.  Co.  v. 
Ruggles,  7  Ohio  St.  1;  Hatch  v. 
Cincinnati  &c.  R.  Co.,  18  Ohio  St. 
92;  Commonwealth  v.  Central  Pass. 
R.  Co.,  52  Pa.  St.  506.  But  in  State 
V.  Atchison  &c.  R.  Co.,  24  Nebr. 
143,  38  N.  W.  43,  8  Am.  St.  164, 
and  note,  32  Am.  &  Eng.  R.  Cas. 
388,  it  was  held  that  a  lease  of  its 
road  without  statutory  authority 
was  such  an  abandonment  as  to 
incur  a  forfeiture  of  the  franchises 
of  the  company  under  a  'statute 
making  the  abandonment  of  its 
road  or  a  jnaterial  part  thereof  by 
a  railroad  company  a  cause  of  for- 
feiture. See  also  Hiakely  v.  Chi- 
cago &c.  R.  Co.,  46  Nebr.  272,  64 
N.  W.  972  (sale  an  abandonment). 
In  Roanoke  Investment  Co.  v. 
Kansas  City  &c.  R.  Co.,  108  Mo. 
50,  17  S.  W.  1000,  51  Am.  &  Eng. 
R.  Cas.  426,  435,  the  court  said: 
"It  is  not  the  policy  of  the  law  to 
permit  a  railroad  to  acquire  a  riglit 


of  \va_v  til  Iniild  ;i  raih-oad.  do  some 
work  on  it,  and  tlicn,  after  chang- 
ing its  route,  and  al^andoning  tlie 
easement,  still  claim  and  exercise 
tlio  right  to  sell  the  right  of  way 
to  another.  The  statute  permitting 
it  to  acquire  land  limits  it  to  its 
own  corporate  purposes.  It  is  not 
allowed  to  enter  the  market  and 
speculate  in  real  estate  in  this 
manner.  When  it  ceases  to  use  the 
land  for  the  legitimate  purposes 
indicated  in  its  charter,  the  lands 
revert  to  the  owner."  A  lease  of 
land  to  a  coal  company  for  a  coal 
yard  into  which  the  railroad  com- 
pany' extended  a  switch  by  which 
they  delivered  coal  to  the  lessee 
was  held  not  to  constitute  an  aban- 
donment. Roby  v.  New  York  &c. 
R.  Co..  142  N.  Y.  176,  36  N.  E. 
1053.  Where  a  railroad  company 
not  prohibited  by  statute  from  ac- 
quiring by  purchase  or  condemna- 
tion the  fee-simple  of  land,  on 
abandoning  for  railroad  purposes 
land  whose  fee  it  had  bought  con- 
veys such  fee  to  a  purchaser  for 
purposes  unconnected  with  its 
road — since  there  could  be  no  re- 
version to  the  company's  grantor, 
who  had  been  paid  full  value  for 
the  fee,  nor  to  his  heirs — the  title 
conveyed  is  at  least  good  as  against 
any  private  person.  Chamberlain 
v.  Northeastern  R.  Co.,  41  S.  Car. 
399.  19  S.  E.  743.  25  L.  R.  A.  139, 
and  note,  44  Am.  St.  717. 


603 


LOCATION  OF  THE  ROAD 


§1142 


not  show  an  abandonment  of  another  part  of  the  right  of  way 
wliich  is  retained  for  use  as  a  switch.''  \No  general  rule  of  law, 
applicable  to  all  cases,  can  be  laid  down  as  to  what  constitutes 
abandonment  of  the  whole  or  a  part  of  its  right  of  way  by  a  rail- 
road company,  but  the  question  whether  abandonment  exists  in 
a  given  case  must  be  determined  by  the  particular  circumstances 
of  that  case.^^  It  is  largely  a  question  of  intent,  and,  while  long 
nonuser  may  be  evidence  of  abandonment,  yet  mere  nonuser  does 
not  of  itself  constitute  an  abandonment  where  there  is  no  intent 
to  a])andon.^  The  relocation  of  part  of  a  railroa'd  in  order  to 
avoid  real  or  seeming  difficulties  in  the  wav  of  its  construction 


3'  Columbus  V.  Columbus  &c.  R. 
Co..  2>1  Ind.  294.  Where  a  street 
railroad  having  a  double  track  took 
up  one  of  its  tracks  and  operated 
its  line  as  a  single  track  road  for 
a  period  of  ten  years,  it  was  held 
that  its  right  to  operate  a  double 
track  was  not  thereby  lost,  but  that 
the  compan}^  could  relay  the  track 
which  it  had  taken  up.  Hestonville 
R.  Co.  V.  Philadelphia,  89  Pa.  St. 
210.  But  see  Hickox  v.  Chicago 
^'c.  R.  Co.,  94  Mich.  237,  53  N.  W. 
1105. 

3s  See  Henderson  v.  Central  Pass. 
R.  Co.,  21  Fed.  358;  Columbus  v. 
Columbus  &c.  R.  Co.,  2>1  Ind.  294; 
Central  Iowa  R.  Co.  v:  M.  &  A.  R. 
Co.,  57  Iowa  249,  10  N.  W.  639. 
Attorney-General  v.  Eastern  R. 
Co.,  137  Mass.  45;  In  Muhle  v.  New 
York  &c.  R.  Co.,  86  Te.x.  459,  25 
S.  W.  607,  the  question  of  what 
constitutes  abandonment  is  held  to 
be  one  for  the  jury. 

39  Northern  Pac.  R.  C<i.  v.  Smith, 
171  U.  S.  260,  18  Sup.  Ct.  794,  43 
L.  ed.  157:  Townsend  v.  Mich. 
Cent.  R.  Co.,  101  Fed.  757;  St.* 
Louis  &c.  R.  Co.  V.  Foltz,  52  Fed. 
627,   633;   Southern    Pac.    R.   Co.   v. 


Hyatt,  132  Cal.  240,  64  Pac.  272,  54 
1..  R.  A.  522;  Durfee  v.  Peoria  &c. 
R.  Co.,  140  HI.  435,  30  N.  li.  686; 
Barlow  v.  Chicago  &c.  R.  Co.,  29 
Iowa  276;  Morgan  v.  Des  Moines 
&c.  R.  Co.,  113  Iowa  561,  85  N.  W. 
902;  Hummel  v.  Cumberland  &c. 
R.  Co.,  175  Pa.  St.  537,  34  Atl.  848; 
Virginia  &c.  R.  Co.  v.  Crow,  108 
Tenn.  17,  64  S.  W.  485;  Nicomen 
Boom  Co.  v.  North  Shore  &c.  Co., 
40  Wash.  315,  82  Pac.  412.  416 
(citing  text).  Intention  and  non- 
"user  must  co-exist.  Stannard  V. 
Aurora  &c.  R.  Co.,  220  111.  469,  11 
N.  E.  254.  The  question  is  to  a 
great  extent  one  of  intent;  but  such 
intention  can  be  established  by  the 
act  of  the  company  clearly  indi- 
cating its  purpose  not  to  use  such 
right  of  way  and  by  long  nonuse 
thereof."  Gurdon  &c.  R.  Co.  v. 
Vaught,  97  Ark.  234.  133  S.  W^ 
1019,  1021  (citing  text  and  holding 
that  almost  twenty  years  nonuse 
under  the  circumstances  showed  an 
intention  to  abandon  and  that  there 
was  an  abandonment).  See  ;iho 
New  York  &c.  R.  Co.  v.  Cella.  88 
Conn.  515,  91  Atl.  972;  3  Elliott 
Ev.  §§  1578.  1579. 


§  1142 


RAILROADS 


604 


upon  the  line  as  ».)rig-inally  laid  out  amounts  to  an  implied  aban- 
donment of  a  portion  of  the  old  line,"'°  and  permitting  another 
company  to  occupy  and  use  the  land  included  within  its  location 
may  estop  a  railroad  company  from  denying  that  such  location 
had  been  abandoned,"  as  will  also,  in  general,  any  acts  by  which 
a  clear  intention  to  abandon  is  shown.*-     The  doctrine  of  aban- 


40  Louisville  &c'  R.  Cn.  v.  Louis- 
ville &c.  R.  Co.,  2  Duv.  (Ky.)  175; 
Hagner  v.  Pennsylvania  &c.  R.  Co., 
154  Pa.  St.  475,  25  All.  1082,  57  Am. 
&  Eng.  Cas.  648;  Stacey  v.  Ver- 
mont Central  R.  Co..  27  \'t.  39.  But 
see  Hickox  v.  Chicago  &c.  R.  Co., 
94  ^rich.  237,  53  N.  W.  1105. 

■*!  Chesapeake  &o.  Canal  Co.  v. 
Baltimore  &c.  R.  Co..  4  G.  &  J. 
(INId.)  1;  Coe  v.  New  Jersey  Mid- 
land R.  Co.,  31  N.  J.  Eq.  105. 

4- Where  a  route  was  wholly  dis- 
used for  a  period  of  ten  years,  dur- 
ing which  the  company  operated  a 
competing  line,  and  no  disposition 
to  relay  the  road  was  manifested 
until  ten  years  had  elapsed,  and 
until  after  there  was  a  move  made 
by  another  railway  company  to  ol)- 
tain  the  route  and  operate  a  street 
railwa_v  over  it.  the  court  held  that 
the  evidence  established  an  inten- 
tion to  abandon.  Henderson  v. 
Central  Pass.  R.  Co..  21  Fed.  358. 
See  also  Louisville  Trust  Co.  v. 
Cincinjiati.  1()  Fed.  296.  Rut  com- 
pare Wright  V.  ATilwaukcc  &c.  Co., 
95  Wis.  29.  69  N.  W.  791.  36  L.  R. 
A.  47,  60  Am.  St.  74;  Denison  &c. 
R.  Co.  V.  St.  Louis  &c.  Co.,  30  Tex. 
Civ.  App.  474.  72  S.  W.  201.  In 
Central  Towa  R.  Co.  v.  :\f.  &  A.  R. 
Co..  57  Towa  249,  10  N.  W.  639.  the 
court  held  that  making  a  survey  of 
the  unfinished  portion  of  its  line. 
and     building    station     houses    and 


sidetracks  along  the  part  which  had 
been  built  was  not  satisfactory  evi- 
dence that  a  company,  which  had 
done  nothing  toward  building  the 
part  of  road  that  remained  incom- 
plete, suspended  operations  with  a 
bona  fide  intention  of  resuming 
them  at  some  time  in  the  future. 
A  failure  to  run  passenger  trains  is 
not  evidence  of  abandonment  where 
the  road  is  regularly  used  for  haul- 
ing freight,  and,  because  of  com- 
petition, no  passengers  are  offered 
to  the  company  for  transportation 
at  a  price  that  would  be  a  reason- 
able compensation  for  the  service. 
Commonwealth  v.  Fitchburg  R.  Co.. 
12  Gray  (Mass.)  180.  Leasing  a 
parallel  road  for  a  period  of  ten 
years,  and  taking  up  its  track,  and 
allowing  its  right  of  way  to  be 
fenced  in  by  the  owner  of  the  ad- 
joining land  during  all  of  said  ten 
years,  is  not  an  abandonment, 
where  the  intention  to  resume  the 
use  of  the  right  of  way  at  the 
expiration  of  the  lease  is  clearly 
proved.  Durfee  v.  Peoria  &c.  R. 
Co..  140  111.  435,  30  N.  E.  686. 
Where  a  company  had  shown  a 
disposition  to  abandon  its  proposed 
route,  and.  upon  being  remonstrat- 
ed with  by  a  committee  of  citizens 
from  a  town  upon  that  route,  re- 
plied through  its  chief  engineer 
that  the  grade  was  so  heavy  that 
the  road  could  not  be  built,  where 


605 


LOCATIOX  OF  TlfK  ROAD 


§  11-^:^ 


duninent  will  be  applied  with  g'reater  strictness,  it  seems,  in  a 
suit  bv  the  state  against  the  company  for  nonuser  of  its  franchises 
than  in  a  suit  by  another  corporation  or  a  private  individual, 
claiming  title  to  the  abandoned  right  of  way.'*^  And,  under  the 
Mississippi  statute,  it  has  been  held  that  the  state  may  enjoin 
the  company  from  abandoning  a  portion  of  its  road  running 
through  a  town  where  it  had  maintained  a  depot.** 

§  1143  (931a).  Relocation  of  stations. — A  railroad  company 
has  the  undoubted  right,  in  the  absence  of  anything  to  the  con- 
trary, to  determine  the  location  of  its  stations,  provided  it  takes 
into  account  the  convenience  of  the  public  and  the  interest  of  the 
company  in  deciding  the  matter,  and  this  right,  similarly  lim- 
ited, applies  to  the  relocation  of  stations  already  established.  An 
important  inquiry  in  a  proceeding  to  prevent  abandonment  and 
relocation  is,  whether  persons  previously  using  the  station  are 


it  then  Iniilt  its  road  over  another 
rontc.  did  nothing  toward  Iniilding 
upon  the  land  in  dispute  for  a  pe- 
riod of  thirteen  j^ears,  permitted 
the  original  owner  and  his  assignee 
to  make  costly  improvements,  and 
even  to  fill  up  the  cut  which  it  had 
made  without  offering  any  protest, 
and  finally  conveyed  its  rights  in 
tlie  proposed  route  to  another  com- 
jiany.  it  was  held  that  the  evidence 
of  abandonment  was  conclusive. 
The  court  said:  "We  think  the  in- 
tention to  abandon  and  the  abso- 
lute abandonment  were  consum- 
mated, the  easement  was  lost,  and 
the  lands  in  question  became  dis- 
charged of  tliis  burden.  Acts  so 
decisive  and  conclusive  in  charac- 
ter as  these  have  but  one  meaning. 
They  indicate  and  prove  a  clear 
intention  to  abandon  the  right  of 
way.  ?^Ioore  v.  Rawson,  3  Barn. 
&  Cr.  332;  Liggins  v.  Tnge,  7  Bing. 
682:  Louisville  &  N.  R.  Co.  v.  Cov- 
ington. 2  Bush   (Kv.)    526." 


■*'■'  State  V.  Atchison  &c.  R.  Co., 
24  Nebr.  143,  38  N.  W.  43.  8  Am. 
St.  164,  and  note;  Crolley  v.  Min- 
neapolis &c.  R.  Co.,  30  Minn.  541, 
16  N.  W.  422.  See  also  Chesapeake 
Beach  R.  Co.  v.  Washington  &c. 
R.  Co.,  199  U.  S.  247,  26  Sup.  Ct. 
25,  50  L.  ed.  175;  Chicago  &c.  R. 
Co.  V.  Wright.  153  111.  307,  38  N.  E. 
1062.  In  the  last  case  above  cited, 
it  was  held  that  failure  to  complete 
the  road  within  the  time  limited  by 
its  charter  is  not  such  an  abandon- 
ment that  it  can  be  taken  advan- 
tage of  by  third  persons,  in  the 
absence  of  any  action  by  the  state. 

"State  V.  Mobile  &c.  R.  Co..  86 
Miss.  172.  38  So.  732.  Sec  also 
Kansas  City  &c.  Ry.  v.  Davis.  197 
Mo.  669,  95  S.  W.  881;  Seaboard 
Air  Line  R.  Co.  v.  Olive,  142  N. 
Car.  257,  55  S.  E.  263.  And  com- 
pare Brooks  Scanlon  Co.  v.  Rail- 
road Com.  of  La.  (T,a.\  81  So. 
727,  degree  reversed  in  40  Sup.  Ct. 
183. 


^1143  RAILROADS  606 

deprived  of  reasonable  facilities  to  transact  business  with  the 
lailroad  company  by  reason  of  the  change.^^  The  mere  fact  that 
jjrivate  citizens  may  have  constructed  residences  or  established 
business  enterprises  in  view  of  the  expectation  that  a  depot 
established  and  maintained  by  a  railroad  company  for  many 
A-ears  woukl  continue  to  1)e  a  regular  stopping  place  for  the 
trains  of  the  company  will  net  influence  the  court,  in  a  mandamus 
proceeding,  to  compel  the  continuance  of  the  depot  and  the 
stopping  of  trains  there,  where  it  appears  that  the  patrons  of  the 
company  in  the  vicinity  sufifer  no  inconvenience  or  hardship  from 
the  change.'"^  The  convenience  of  the  railroad  company,  in 
making  the  change,  however,  is  not  the  sole  consideration.  One 
court,  addressing  itself  generally  to  this  question,  has  said  :  "It 
would  seem  to  be  now  well-settled,  upon  principles  of  public 
policy,  that  the  decisive  question  in  such  a  case  should  not  be 
the  convenience  and  benefit  of  the  railway  companies  alone. 
They  un(lou])tedly  ha\e  a  right  to  consider  their  own  profit  and 
convenience  largely,  but  also  owe  duties  to  the  public,  for  which 
reasons  they  have  been  permitted  to  establish  their  roads,  and 
enjoy  many  substantial  ])rivileges  depending  on  benefits  which 
will  accrue  to  patrons  adjacent  to  their  lines,  and  incidental  to 
the  obligations  thus  imposed  must  be  the  duty  to  treat  the  public 
fairly,  and  furnish  them  with  reasonable  facilities  to  enjoy  the 
benefits  they  confer ;  hence  the  discontinuance  of  an  established 
railway  station,  which  their  patrons  have  been  permitted  to  use 
for  years,  upon  the  faith  of  wdiose  location  the  people  of  a  vil- 
lage and   the   surrounding  country   have  depended,  can   not   be 

•*^  Butler    V.    Tiftoii    &c.     R.    Co.,  frequented  street,  210  feet  from  the 

121    Ga..817,  49  S.   E.   763;    Mobile  corporate   line,   within    four   blocks 

&c.   R.   Co.  V.   People,   132   111.   559,  of    the    former    depot    in    the    city, 

24  N.  E.  643,  22  Am.  St.  556;   Chi-  and    within    the    police   jurisdiction 

cago  &c.  R.  Co.  V.  People,  222  111.  of  the   city,   will   not  be   restrained 

396,    78    N.    E.    784;    State    v.    Des  bec<ause    of    its    being    beyond    the 

Moines    &c.    R.    Co.,    87   Iowa    644,  city     limits.       Dewey     v.     Atlantic 

54  N.  W.  461;  State  V.  Alabama  &c.  Coast    Line,    142    N.    Car.    392,    55 

R.  Co.,  68  Miss.  653.  9  So.  469.     A  S.   E.  292. 

recent   decision    holds   that   the   lo-  ^^  Chicago  &c.  R.  Co.  v.   People, 

cation    of    a    union    depot    at    the  222  111.  396,  78  N.  E.  784. 
terminus  of  an  important  and  much 


607 


LOCATION  OP  THE  ROAD 


§1144 


(!etermined  solely  by  the  consideration  whether  a  railway  station 
is  profitable  to  the  road,  nor  upon  its  convenience  and  the  adap- 
tation of  its  affairs  to  the  increased  advantag'es  and  methods  of 
transactinj4"  its  business,  nor  1)_\-  the  test  whether  the  continuance 
of  a  station  will  require  it  to  incur  increased  expense.  This 
\\holesonie  conclusion  is  supported  b\'  authority,  and  is  founded 
upon  e(|uity  and  reasonable  i^'rounds  of  general  utility.'"'" 

§  1144.  Right  of  individual  to  enjoin  change  of  depot  or  sta- 
tion.— As  already  shown  a  railroad  com])an}-  ordinarily  has  a 
broad  discretion  in  determining  the  location  of  depots  and  sta- 
tions and  in  making  changes  in  their  location.*^  So,  too,  a  rail- 
road commission  have  been  created  in  many  of  the  states  with 
authority  over  such  matters.  For  these  reasons  it  is  seldom  that 
a  private  individual  can  enjoin  the  change  or  removal  of  a  depot 
or  station,  at  least  in  the  first  instance. ^^  It  may  be  that  in  some 
instances  a  private  individual  having  a  valid  contract  with  the 
company  might  maintain  mandamus  or  a  suit  for  specific  per- 
formance or  an  injunction  requiring  the  company  to  maintain  a 
depot  or  station  at  a  certain  place  or  preventing  its  removal,  but. 
ordinarily,  a  private  individual  has  no  such  right  and  the  courts 


•*'■  Gladsoii  V.  Minnesota,  166  U. 
S.  427,  17  Slip.  Ct.  627,  41  L.  ed. 
1064:  People  v.  Louisville  &c.  R. 
Co.,  120  111.  48.  10  N.  E.  657;  Peo- 
ple V.  Chicago  &c.  R.  Co..  130  Til. 
175,  22  N.  E.  857:  Mobile  &c.  R. 
Co.  V.  People,  132  111.  559,  24  N.  E. 
643,  22  Am.  St.  556;  citing  Railway 
Comnirs.  v.  Portland  &c.  R.  Co., 
63  Maine  269,  18  Am.  Rep.  208; 
State  V.  Northern  &c.  R.  Co..  90 
Minn.  277.  96  N.  W.  81;  State  v. 
Sioux  City  &c.  R.  Co.,  7  Nebr.  357. 
The  question  as  to  the  validity  and 
effect  of  statutes  and  orders  of 
railroad  or  public  utility  commis- 
sion as  to  maintaining  depots  or 
stations  at  certain  places  has  al- 
ready been  considered  in  other 
chapters     in     this     volume.       See. 


lK)\vever,  on  the  general  subject, 
notes  in  Ann.  Cas.  1912A,  227; 
Ann.  Cas.  1914C,  1171;  also  St. 
Louis  &c.  R.  Co.  V.  Bellamy,  113 
Ark.  384,  169  S.  W.  322:  Kansas 
City  So.  R.  Co.  v.  Redwine,  43 
Okla.  610,  143  Pac.  847;  Gulf  &c. 
R.  Co.  V.  State  (Tex.  Civ.  App.), 
167  S.  W.  192. 

*^  See  also  People  v.  Chicago  &c. 
R.  Co.,  130  111.  175.  22  N.  E.  857: 
Chicago  &c.  R.  Co.  v.  State.  74 
Xebr.  77,  103  N.  W.   1087. 

*3  Horton  v.  Southern  R.  Co., 
173  Ala.  231,  55  So.  531,  Ann.  Cas. 
1914A,  685:  College  Arms  Hotel 
Co.  V.  Atlantic  Coast  Line  R.  Co., 
61  Fla.  553,  54  So.  459:  Cooper  v. 
Mobile  &c.  R.  Co.,  94  Miss.  413, 
48  So.  832. 


^  ll-ti  liAlbKOADS  608 

can  not  or  will  not  assume  jurisdiction.  His  remedy,  if  any.  even 
where  there  is  a  contract  has  been  held  to  be  an  action  for  dam- 
ages and  not  injunction.''" 

•">"  Fritts  V.  Delaware  &c.  R.  Co.,  All.  18.    As  to  right  to  specific  per- 

75    X.   J.    L.   384,    72>   Atl.   92.     See  fnrmance  of  contract  to  erect  depot 

also  Armour  &c.  Co.  v.  Texas  &c.  or  maintain  station,  see  note  in  14 

Ry.  Co.,  258  Fed.  185;  Jacquelin  v.  Ann.  Cas.  478. 
Erie   R.    Co.,  69   N.  J.    Eq.  432,  61 


CIIAl'TI'.I^  .WWII. 

Acgrisiiiox  oi'  RKiirr  oi--  way 

Sec.  Sec. 

1150.  H(i\v    rii^lit    of    way    may    be  form       coiulitions       subse- 

ac(iuirc(l.  qiient. 

1151.  Authority  to  purchase.  1165.    Construction     of     conditions 

1152.  Who  may  convey.  subsequent  —   Complian-ce 

1153.  Construction     of    deeds     and  witli   conditions. 

contracts  for  right  of  way.  ]]()().    Wlien    equity    will    interfere 

1154.  Whore  route  is  not  described  in  case  of  a  breach  of  con- 

in   deed.  ditions  subsequent. 

1155.  I'"nl"(>rcenuiit     of     agreement  11()7.    Covenants   running   with   the 

to   sell  —  Specific  perform-  land. 

ance.  1168.    Other  covenants. 

1156.  When     specific    performance  1169.    Riglit    of    way    over    mineral 

will   not  be   enforced.  lands  —  Reservation    of 

1157.  Efifect    of   conveyance   or   re-  right  to  mine. 

lease  of  damages.  1170.    Use     of     land     acquired     for 

1158.  What  estate  is  taken.  right  of  way  purposes. 

1159.  What    estate    is   taken — Con-  1171.    Title     on      abandonment     of 

tinned.  right    of   way. 

1160.  Conveyance  of  right  of  way  1172.    Dedication  of  land  to  the  use 

by   railroad   companies.  of  railroad. 

1161.  Conditional   conveyances.  1173.    Dedication  to  railroad — Stat- 

1162.  Difiference     between     condi-  ute  of  frauds. 

tions  precedent  and  condi-  1174.    Title  by  adverse  possession, 

tions    subsequent  —  Effect  1175.    Adverse    possession  —  Tack- 

of  failure  to  perform  con-  ing — Extent    of    right    ac- 

ditions   precedent.  cjuired. 

1163.  Conditions  subse(|ucnt —  1176.    Adverse     possession     as 

What  is  sufficient  perform-  against   municipality, 

ance — Effect    of    failin^e    to  1177.    Rights    of   railroad    company 

perform.  acquired     bj'     entry    under 

1164.  Remedies  of  grantor  for  fail-  license. 

ure    of    company    to    per-  1178.    When   license   is   irrevocable. 

§  1150   (932).     How  right  of  way  may  be  acquired. — A  right 
of  \va\-  may  1)c  acquired  b}'  a  raih'oad  conipanv  by  purchase,  bv 

609 


$  1151 


RAILROADS 


GIO 


grant,  l)y  dedication,^  by  adverse  possession.  In'  license,  or  l^y 
condemnation  under  the  power  of  eminent  domain.  Or,  as  said 
in  a  recent  case,  it  may  be  by  condemnation,  purchase,  or  vohm- 
tary  grant,  and  also  by  estoppel,  adverse  possession,  or  license. - 
We  have  already  treated  of  the  acquisition  of  a  right  of  way  by 
pulilic  grant,  and  we  shall  consider  the  subject  of  eminent  do- 
main in  a  subsequent  chapter.  In  this  chapter  we  shall  consider 
the  other  modes  of  acciuiring  a  right  of  way.  The  first  is  by 
purchase. 

§  1151  (933),  Authority  to  purchase. — Railroads  are  gen- 
erally authorized  to  purchase  the  necessary  lands  for  a  right  of 
way  and  for  the  erection  of  station-houses,  repair  shops,  and 
other  accommodations  for  the  transaction  of  their  business,-'  or 
to  take  such  land  by  gift  or  as  a  consideration  for  any  agreement 
which  the  company  is  empowered  to  make.  Indeed,  an  attempt 
to  purchase  or  agree  upon  the  compensation  is  usually  made  a 
condition  precedent  to  the  exercise  of  the  power  of  eminent  do- 
main.*    But,  even  without  special  statutory  authority,  a  railroad 


1  But  see  post.  §  1172.  In  Clark 
^.  Wabash  R.  Co..  132  Iowa  11, 
109  N.  W.  309,  it  is  said  that  "a 
railroad  right  of  way  is  an  ease- 
ment which  can  be  acquired  onl)- 
by  grant,  cither  from  the  owner  or 
from  tlie  state,  through  the  exer- 
cise of  the  right  of  eminent  do- 
main, or  by  prescription";  but 
there  w^as  no  ([uestion  of  dedica- 
tion in  the  case. 

-  Town  of  New  Point  v.  Cleve- 
land &c.  R.  Co.,  59  Ind.  App.  147, 
107  N.  E.  560,  564.  See  also  Louis- 
ville &c.  R.  Co.  V.  Berkey,  136  Ind. 
591.  36  N.  E.  642;  Town  of  New- 
castle v.  Lake  Erie  &c.  R.  Co.,  155 
Ind.  18.  57  N.  E.  516:  Hill  v.  Wood- 
ward, 100  Miss.  879.  57  So.  294.  39 
L.  R.  A.  (N.  S.)  538,  .Xnn.  Cas. 
1914A,  390. 

■■'That    they     have     the     right     to 


purchase  the  right  of  way,  see 
]\Iunson  v.  Syracuse  &c.  R.  Co., 
103  N.  Y.  58.  8  N.  E.  355;  McClure 
v.  Missouri  River  R.  Co..  9  Kans. 
373:  Chamberlain  v.  Northwestern 
R.  Co.,  41  S.  Car.  399.  19  S.  E.  743, 
25  L.  R.  A.  139,  and  note,  44  Am. 
St.  717;  Williamsport  &c.  R.  Co. 
v.  Philadelphia  &c.  R.  Co..  141  Pa. 
St.  407.  21  Atl.  645,  12  L.  R.  A.  220. 
and  note;  State  v.  Boston  &c.  R. 
Co..  25  Vt.  433. 

•*  See  Brown  v.  Rome  &c.  R.  Co., 
86  Ala.  206.  5  So.  195,  36  Am.  & 
Eng.  Cas.  571;  Lake  Shore  &c.  R. 
Co.  V.  Cincinnati  &c.  R.  Co.,  116 
Ind.  578.  19  N.  E.  440;  Terre  Haute 
&c.  R.  Co.  V.  Scott,  74  Ind.  29; 
Toledo  &c.  R.  Co.  v.  Detroit  &c. 
R.  Co.,  62  Mich.  564,  29  N.  W.  500, 
28  Am.  &  Eng.  Cas.  272;  4  Am.  St. 
875:  Ellis  v.  Pacific  R.  Co.,  51  Mo. 


611 


ACQUISITION   OP   RKiHT  OF   WAY 


§  ^^-'^l 


C()ini>an\-  could,  if  not  expressly  forbidden  to  do  so.  ]»urchase  such 
lands  under  its  implied  power  as  a  corporation  to  acquire  and 
hold  whatever  property  is  reasonably  useful  and  convenient  in 
attaining-  its  legitimate  ends."'  A  grantee  in  existence,  and  cap- 
able of  taking-,  is  ordinarily  essential  to  every  conveyance.  Ac- 
cordingly it  has  been  held  that,  in  the  absence  of  special  statutory 
authority,  a  railroad  company  can  take  nothing  by  a  conveyance 
executed  before  its  organization.^  But  it  is  competent  for  the 
legislature  to  authorize  conveyances  to  be  made  to  a  corporation 
In-  name  in  advance  of  its  organization  as  an  inducement  to  the 
formation  of  the  company,  and  such  conveyances,  upon  ratifica- 
tion by  the  company  after  its  organization,  by  entering  upon  the 
land  and  locating  its  line  upon  the  same,  become  binding  upon 
the  grantor  and  the  company."  So,  of  course,  a  conveyance  may 
be  taken  by  individuals  in  trust  for  the  company  when  formed.^ 
So.  it  has  been  held  that  a  nonresident  company  which  has  no 
authority  to  condemn  land  may  nevertheless  acquire  it  by  con- 
tract with  the  owner,  and  that  the  latter,  by  taking  part  in  the 


200;  Omaha  R.  v.  Gerrard,  17  Nebr. 
587,  24  N.  W.  279;  Pennsylvania 
R.  Co.  v.  National  Docks  &c.  Co., 
57  N.  J.  L.  86,  30  Atl.  183;  Pros- 
pect Park  &c.  R.  Co.,  In  re,  67 
X.  Y.  371:  Powers  v.  Hazelton  &c. 
R.  Co.,  33  Ohio  St.  429;  Oregon 
&c.  R.  Co.  V.  Oregon  &c.  Co..  10 
Ore.  444;  O'Hara  v.  Pennsylvania 
R.  Co.,  25  Pa.  St.  445. 

5  Blanchard's  Gun  Stock  &c. 
Factory  v.  Warner,  1  Pdatchf.  (U. 
S.)  258;  Ryan  v.  Leavenworth  &c. 
R.  Co.,  21  Kans.  365,  400;  Old  Col- 
ony R.  Co.  v.  Evans.  6  Gray 
(Mass.)  25,  66  Am.  Dec.  394; 
Thompson  v.  Waters.  25  Mich. 
214.  227.  12  Am.  Rep.  243:  :\Ioss 
V.  Averell,  10  N.  Y.  449:  Spear  v. 
Crawford.  14  Wend.  (N.  Y.)  20.  28 
Am.  Dec.  513;  Page  v.  Heineberg. 
40  Vt.  81.  94  Am.  Dec.  378.  and 
note;   Roval   Bank   of  India's  Case, 


L.  R.  4  Ch.  App.  252,  L.  R.  7  Eq. 
Cas.  91;  1  Bl.  Com.  475.  478:  2 
Kent's  Com.  227.  But  it  has  been 
held  that  a  non-resident  corpora- 
tion may  acquire  a  right  of  way 
and  land  for  depot  grounds,  yards 
and  machine  shops  by  contract,  al- 
though prohibited  from  doing  so 
by  condemnation.  St.  Louis  &c. 
R.  Co.  V.  Foltz,  52  Fed.  627.  See 
American  &c.  Co.  v.  Minnesota  &c. 
Co.,  157  111.  641,  42  N.  E.  153. 

6  Gage  V.  New  Market  &c.  R. 
Co.,  18  Q.  B.  457.  See  Boston  &c. 
R.  Co.  V.  Babcock,  3  Cash.  (Mass.) 
228,  and  compare  Chattanooga  &c. 
Co.  V.  Evans,  66  Fed.  809.  See 
ante.  §  470. 

"  Bravard  v.  Cincinnati  (S:c.  R. 
Co..  115  Ind.  1.  17  N.  E.  183.  Ante, 
§  470. 

s  Burrow  v.  Terre  Haute  &c.  R. 
Co..  107  Ind.  432.  8  N.  E.  167. 


^^   1  ]')'!  RAILROADS  612 

coiidemiialion  ])r<)cee(lin.^s  and  accc'j)ting"  the  award,  is  estopped 
to  deny  that  there  was  an  implied  contract  for  the  ri^-ht  of  wav.'' 

§  1152  (934).  Who  may  convey. — A  C()n\  eyance  to  a  raih-oad 
company  is  subject  to  the  same  restrictions  and  conditions  as  if 
niade  to  a  person  not  possessing  the  rii^ht  of  eminent  domain. 
'J'he  grantor  can  ordinarily  convey  only  his  own  interest.  A  deed 
from  the  husband  does  not  convey  the  wife's  land.^"  and  the 
same  is  true  of  a  conveyance  by  the  wife  in  which  her  husband 

^  St.    Louis    &c.    R.    Co.   V.    Foltz,  102.       In     Iowa,    decisions    to    the 

52    Fed.  627.  sanu-  effect  are  put  upon  the  ground 

1"  Pilcher  v.  .Atchison  &c.  R.  Co..  liiat  a  release  of  a  mere  easement 
38  Kans.  516,  16  I'ac.  945,  5  .Am.  tlirou^h  a  homestead  for  the  con- 
St.  770;  Texas  &c.  R.  Co.  v.  Dur-  struction  of  a  railroad  may  be 
rett,  57  Tex.  48;  Galveston  &c.  R.  made  by  the  husband  without  the 
Co.  V.  Donahoo,  59  Tex.  128.  In  consent  of  the  wife  if  the  occu- 
Chicago  &c.  R.  Co.  v.  Anderson,  pancy  of  the  right  of  way  will  not 
42  Kans.  297,  21  Pac.  1059,  it  is  materially  interfere  with  the  use 
held  that  the  husband  or  wife  had  of  the  homestead  iM'emises  as  such, 
such  an  interest  in  the  lands  of  the  Chicago  &c.  R.  Co.  v.  Swinney,  38 
other  as  to  be  a  neccssarj-  partv  Iowa  182.  In  Ottumwa  &c.  R.  Co. 
to  condemnation  proceedings.  But  v.  ^IcWilliams,  71  Iowa  164,  32  N. 
it  has  been  held  that  where  the  W.  315,  29  Am.  &  Eng.  R.  Cas. 
husband  is,  in  law,  the  absolute  544,  the  same  court  held  that  a 
owner  of  all  lands  held  in  his  railroad  runnin.g  throu.gh  a  forty- 
name,  and  possessed  of  an  abso-  acre  homestead  tract,  through  a 
lute  power  f)f  sale  or  alienation.  cut.  the  edge  of  \\hich  was  ninety- 
that  a  statutory  inhibition  against  five  feet,  and  the  deepest  part,  in 
the  conveyance  of  any  part  of  the  which  the  track  was  laid,  144  feet 
"homestead"  without  the  consent  from  the  dwelling-house,  did  not 
of  the  wife  does  not  deprive  the  destroy  the  homestead  or  defeat 
husband  of  the  right  to  release  to  its  occupancy  as  such.  This  was 
the  railroad  a  right  of  way  over  an  action  on  a  contract  by  which 
which  it  has  located  its  line.  The  the  husband  bound  himself  to  con- 
railroad  company  could  take  the  vey  a  fee-simple  title  to  a  strip  of 
property  by  process  of  condemna-  groimd  for  a  right  of  way  for  the 
tion,  if  it  were  not  released,  in  railroad.  The  court  below  direct- 
which  case  the  damages  assessed  ed  the  conveyance  of  an  easement, 
would  be  payable  to  the  husband,  and  its  decree  was  approved  on 
and  a  release  from  him  is  merely  appeal.  In  Canty  v.  Lattcrner.  31 
a  release  f)f  his  claim  for  damages.  Alinn.  239.  it  was  held  that  the 
Randall  v.  Texas  Central  R.  Co.,  husband  has  the  sole  right  to  dam- 
63  Tex.  586,  22  .\m.  S:  Fng.  R.  Cas.  ages  awarded   on   condemnation   of 


(il3  ACQiisiTiox  OK  i;i(;ii'i'  ok  way  §  1152 

does  iKJt  join,  w  Iutc  the  hushaiul  is  recjuired  by  statute  t(i  join 
in  all  conveyances  of  land  by  the  wile."  Nor  does  the  deed  of 
the  niorts^^'it^or  affect  the  mort.s^af^ee's  interest.^-  A  guardian  can 
not  bind  the  trust  estate  l)y  his  deed  for  a  right  of  way  unless  it 
is  made  with  the  approval  of  the  court.''  Nor  can  an  executor 
(•r  administrator,  unless  he  has  a  power  to  sell."  If,  however, 
the  owner  of  an  equitable  interest  in  lands  conveys  to  a  railroad 
a  right  of  way  across  them,  and  afterward  perfects  his  title,  it 
has  been  held  that  the  new  rights  which  he  acquires  will  inure  to 
the  Ix^nefit  of  the  railroad  company.''  -V  life  tenant  may  convey 
tlie  land  during  his  tenancy  for  any  use  which  does  not  injure  the 

property    for    a    raih-oad    right    of  Pickort   v.    Ridgefield    I'ark    R.   Co., 

way    through    a    homestead,    from  25  N.  J.  Eq.  316,  it  is  held  that  the 

which    the    doctrine    of    Randall    v.  wife    can    not,    after    the    company 

Texas    Central    R.    Co.   would   logi-  has    entered    into    possession    and 

cally   follow.      Hut   this    position    is  begun   the  construction  of  its  road 

denied  in  Iowa,  and  the  court  holds  under   an   agreement   with   her  hus- 

that    the    damages    awarded    are    a  band   who   held   the    record   title   to 

part    of   the   homestead.      Kaiser  v.  the    property    and    who    made    the 

Seaton.  62  Iowa  463,  17  N.  W.  664.  agreement     with     her     knowledge. 

"  Colorado     Central     R.     Co.     v.  enjoin    the    further    prosecution    of 

Allen.  13  Colo.  229.  22  Pac.  605.  44  the   work    on   the  ground   that   she 

.\ni.   &   Eng.   R.   Cas.   193.     In   thi>  hdlds    an    unrecorded    deed    to    the 

rase  it  was  held  that  the  wife  could  property,     of     which     the     railroad 

convey  her  land  to  a  railroad  com-  company    had     no    opportunity    to 

])any  without  joining   her   husband  ac(|uire  knowledge, 

under    the    act    removing    the    dis-  i=  Wade  v.  Hennessy,  55  Vt.  207. 

abilities    of    married    women,    even  '^^  Indiana  &c.  R.  Co.  v.  Britting- 

though    the   law   reijuired    her   hus-  ham.   98    Tnd.   294;    Indiana    &c.    R. 

hand    to    be    joined    with    her    in    a  Co.  v.  Allen.   100  Ind.  409;   State  v. 

suit    by    the    railroad    company    to  Commissioners,     39     Ohio     St.     58. 

take   the   land    under   tiie   power   of  See    also    Myers    v.    McGavock.    39 

cuninent  domain.     In  Texas  &c.  R.  Nebr.   843.   58   N.    W.   522.   42    Am. 

Co.  V.   Durrett,  57  Tex.  48.  -it  was  St.  627. 

held    that    the    husband    could    not,  i-*  Rush    v.    McDermott.    50    Cal. 

without   the    concurrence    and   con-  471:    Ilankins    v.    Kimball.    57    bul. 

<ent    of   the   wife   as   prescribed   by  42:    T<unpkins    v.    .Augusta    &c.    R. 

the     statute,    grant     to    a     railroad  Co.,  21  S.  Car.  420. 

company  a  right  of  way  across  the  ■■■■  Indianapolis     t*tc.      R.     Cn.     v. 

separate  property  of  the  wife.     In  Rayl,  69  Ind.  424. 


§  ll'">^ 


RAILROADS 


614 


inheritance,^"  but  he  can  not  liind  the  reversioner.^'  As  in  the 
case  of  ])rivate  individuals,  the  raih-oad  company  takes  only  the 
estate  which  its  grantors  had  in  the  land.  Thus  the  holder  of  a 
leasehold  interest  can  not  he  divested  of  his  estate  hy  a  convey- 
ance hy  his  landlord. ^^  Neither  can  the  title  of  the  landlord  be 
prejudiced  by  a  deed  from  the  tenant. ^°  Where  the  company 
enters  under  a  deed  from  one  tenant  in  common,  it  has  been  held 
a  trespasser  as  to  the  other  tenants  in  common  who  do  not  join 
in  the  deed.-"  Where  the  joint  deed  of  husband  and  wife  is  nec- 
essary to  convey  her  real  estate,  a  release  of  damages  by  a  mar- 


^^  Chicago  &c.  R.  Co.  v.  Good- 
win. Ill  111.  273.  5.3  Am.  Rep.  622; 
Tutt  V.  Port  Royal  &c.  R.  Co.,  16 
S.  Car.  365;  Hope  v.  Norfolk  &c. 
R.  Co..  79  Va.  283.  See  also  Ren- 
tonville  R.  V.   Baker,  45  Ark.  252. 

17  Bentonvillc  R.  v.  Baker,  45 
Ark.  252:  Chicago  &c.  R.  Co.  v. 
Goodwin.  Ill  111.  nZ,  53  Am.  Rep. 
622;  Rradlej'  v.  Missouri  Pac.  R. 
Co..  91  ^lo.  493,  4  S.  W.  427;  Aus- 
tin V.  Rutland  &c.  R.  Co..  45  Vt. 
215;  Hope  v.  Norfolk  &c.  R.  Co., 
79  Va.  283.  Where  the  reversioner, 
and  her  trustee  know  of  the  grant 
of  a  right  of  way  across  the  estate, 
and  acquiese  in  the  construction 
and  operation  of  the  railroad  there- 
on for  manj^  years,  the  trustee  can 
not  recover  the  land  in  the  lifetime 
of  the  life  tenant  upon  allegations 
of  forfeiture  for  waste.  Tutt  V. 
Pnrt  Royal  &c.  R.  Co..  20  S.  Car. 
110.  Under  the  Canadian  statute 
a  tenant  for  life  is  authorized  to 
convey  to  a  railroad  company,  and 
the  latter  remains  liable  to  the 
reversioner  or  remainder-man  for 
the  proportion  of  the  price  due  to 
liis  interest.  .Midland  Railroad  v. 
Young,  22  Can.  .S.  C.   Rep.  190. 

18  Chattanooga  &c.  R.  Co.  v. 
Bn.wn,  84  Ga.  256.  10  S.  K.  730, 
43   Am.   &   Eng.   R.  Cas.  611:    I'.ur- 


bridge  v.  New  Albany  &c.  R.  Co., 
9  Ind.  546;  Crowell  v.  New  Or- 
leans &c.  R.  Co..  61  Miss.  631. 

li' Toledo  S:c.  R.  d-.  v.  Dunlap, 
47  Mich.  456,  11   X.  \V.  271. 

-"Rush  V.  Rurlingtnn  &c.  R.  Co., 
57  Iowa  201,  10  N.  W.  628.  i'.ut.in 
Charleston  &c.  R.  Co.  v.  Leech.  7)2) 
S.  Car.  175,  11  S.  E.  631,  26  Am. 
St.  667,  43  Am.  &  Eng.  R.  Cas.  588, 
it  was  held  that  a  railroad  company 
which  had  built  its  road  across  a 
farm  belonging  to  its  grantor  and 
her  three  children  as  tenants  in 
common,  was  entitled  to  an  order 
compelling  a  partition  of  the  land 
as  upon  the  applica'tion  of  the 
grantor,  and  directing  that,  if  pos- 
sible, the  allotment  to  the  grantor 
should  include  the  strip  over  which 
the  company  had  constructed  its 
road;  and  that  proceedings  institut- 
ed by  the  minor  children  to  recover 
damages  to  their  interests  should 
be  enjoined  pending  the  partition 
proceedings.  The  court  says:  "Sup- 
pose the  proceedings  instituted  by 
the  minors  for  compensation  and 
damages  are  allowed  to  proceed  to 
final  judgment  before  any  partition 
is  made.  Of  course  the  plaintifif 
would  be  compelled  to  pay  them 
the  ammuit  so  adjudged.  .\nd  sup- 
pose   that    after    this,    when    parti- 


615 


ACQUISITION  OF   RIGHT  OF   WAY 


§  1153 


ried  woman,  in  which  her  Inishand  does  not  join,  has  heen  held 
inoperative  for  any  purpose.-^  Contracts  o{  this  kind,  like  all 
other  contracts,  are  not  binding  upon  the  company  unless  those 
assinning  to  act  for  the  corporation  had  the  recjuisite  authority, 
or  their  acts  are  afterwards  ratified.-- 

§  1153  (934a).  Construction  of  deeds  and  contracts  for  right 
of  way. — The  ordinary  rules  governing'  the  construction  of  sim- 
ilar instruments  apply  in  general  to  the  construction  of  deeds 
and  contracts  for  a  railroad  right  of  way.  Statutory  provisions, 
and  the  nature  and  purpose  for  which  a  right  of  way  is  acquired 
and  used,  and  other  circumstances,  may  sometimes  result,  how- 


tion  is  made,  it  shall  turn  out  that 
the  railroad  does  not  go  througli 
or  over  any  portion  of  the  land 
allotted  to  the  minors,  but  goes 
only  over  tlu-  land  allotted  to  Mrs. 
Leech,  would  nut  this  be  the  great- 
est injustice  to  the  plaiiUiff?  For, 
in  such  case,  the  plaintiff  will  have 
been  required  to  pay  for  a  right  of 
way  over  land  for  which  it  holds 
a  grant,  and  to  persons  who,  as  it 
turns  out.  are  not  entitled  to  a  foot 
of  the  land  over  which  such  right 
of  way  has  been  paid  for."  But 
the  doctrine  of  this  case  is  mani- 
festly unsound,  since  the  construc- 
tion of  a  railroad  across  the  prop- 
erty may  have  damaged  it  to  a 
greater  or  less  extent,  and  such 
damage  coidd  not  be  taken  into 
account  by  the  commissioners  and 
charged  against  the  interest  i>f  the 
grantor  in  effecting  a  partition.  In- 
deed, it  is  conceivable  that  a  tract 
of  land  of  which  but  a  small  part 
was  taken,  should  be  damaged  by 
the  construction  of  a  railroad 
across  it  to  an  amount  greater  than 
the  entire  interest  of  the  tenant  in 
common  by  whom  alone  its  con- 
struction was  authorized.  Upon  the 
general  proposition  that  one  tenant 


in  common  can  not  convey  to  a 
stranger  a  specific  porti(Mi  of  the 
common  estate  so  as  to  prejudice 
the  rights  of  his  co-tenants  in  the 
part  conveyed,  see  Shepardson  v. 
Rowland,  28  Wis.  108:  Gates  v. 
Salmon.  35  Cal.  576.  95  Am.  Dec. 
139;  Marsh  v.  Holley,  42  Conn.  453; 
iVIarkoe  v.  Wakeman,  107  111.  251; 
Mattox  V.  Hightshue.  30  Ind.  95; 
Ballon  V.  Hale.  47  N.  H.  347,  93 
Am.  Dec.  438;  Dennison  v.  Foster, 
9  Ohio  126.  34  Am.  Dec.  429;  Jew- 
ett  V.  Stockton.  3  Yerg.  (Tenn.) 
492,  24  Am.  Dec.  594;  Good  v. 
Coombs,  28  Tex.  34.  See  also  Dra- 
per V.  Williams.  2  Mich.  536.  But 
compare  Casteel  v.  St.  Louis  &c. 
R.  Co..  81  Ark.  364,  99  S.  W.  540. 

21  Delaware  &c.  R.  Co.  v.  Burson. 
61  Pa.  St.  369.  Where  the  statute 
authorizes  the  railroad  company  to 
acquire  title  by  a  release  from  the 
"owner,"  the  fact  that  the  wife 
does  not  release  her  inchoate  right 
of  dower  is  immaterial.  Chouteau 
v.  Missouri  Pacific  R.  Co.,  122  Mo. 
375,  22  S.  W.  458. 

22  Reynolds  v.  Dunkirk  &c.  R. 
Co..  17  Barb.  (X.  V.)  613:  Central 
Mills  Co.  v.  New  York  &c.  R.  Co.. 
127  Mass.  537. 


§  1153  RAILROADS  616 

c\"er.  in  cansiiii^'  a  different  interpretation,  construction,  or  effect 
tti  l:)e  given  to  such  a  contract  or  some  of  its  provisions  from  that 
\\hich  might  l^e  given  to  an  ordinary  deed  or  contract  between 
individuals  for  land  or  for  a  ])rivate  right  of  way.  The  construc- 
tion of  provisions  as  to  the  location  and  extent  of  the  right  of 
Vcxy,  and  the  particular  rules  applicable  to  conditions  and  cove- 
nants, are  considered  in  subsecjuent  sections  in  this  chapter. 
Where,  as  is  usually  the  case,  the  statute  authorizes  only  an 
easement  or  interest  in  land,  and  not  a  fee  to  he  taken  by  con- 
demnation i)roceedings.  a  deed  will  not  be  construed  to  convey  a 
fee  in  the  absence  of  a  clearly  apparent  intention  to  that  effect.-" 
P^ven  where  an  agreement  ]:)urported  to  grant  and  convey  to  a 
lailroad  com])any  a  "full  right  of  way  of  the  width  of  fifty  feet." 
1)Ut  closed  with  a  statement  that  the  land-owner  also  covenanted 
and  agreed,  when  required  by  the  company,  to  execute  "a  deed 
conveying  to  said  company  in  fee-simple  the  land  hereinbefore 
described."  and  the  company  did  not  demand  a  deed  until  the 
discovery,  some  years  afterwards,  that  the  land  was  valuable  for 
gas  and  oil,  it  was  held  that  the  company  took  only  an  easement. 
and  that  nothing  more  was  intended  to  be  conveyed.'-*  It  was 
also  said,  in  the  same  case,  that  as  the  agreement  was  prepared 
l^y  the  railroad  company,  and  was  ambiguous,  the  constrtiction 
should  be  favorable  to  the  land-owner,  and  the  doubt  "should  be 
solved  adversely  to  the  railway  company."  On  the  other  hand, 
it  has  been  held  that  a  deed  granting  a  "right  of  way  of  sufficient 
widtli  for  the  track,  cuts  and  embankments  of  the  said  road,  as 
also  for  turnouts  and  all  other  extensions  and  enlargements,  or 
repair  of  the  same  from  time  to  time,  not  to  exceed  one  hundred 
feet  on  each  side,  with  the  right  to  use  the  earth,  stone,  and  tim- 
ber within  the  said  tract  for  the  construction,  extension,  orre])air 
of  the  same  road,"  conveys  such  rights  as  the  company  would  be 

-••'See     post.    §     1158.       See    also  (Tex.    Civ.    .Vpp.).    169    S.    W.    ()44, 

Shepard  v.  Suffolk  &c.   R.  Co.,   140  it  was  held  that  tlie  company  took 

\.  Car.  391,  53  S.  E.  137;  St.  Louis  a  fee. 

&c.   R.   Co.  V.  Temple   &c.   Ry.   Co.  -*  Lockwood    v.    Ohio     RIvlm-    R. 

(Tex.   Civ.   App.).   170  S.  W.   1073.  Co.,  103  Fed.  243.     See  also  South 

And  compare  People  v.  Walsh.  211  Penn.    Oil    Co.    v.    Calf    Creek    Oil 

X.   Y.    90,    105    N.    E.    136.      But    in  &c.  Co.,  140  l-ed.  507. 
Stevenson    v.    Galveston     &-c.R.Co. 


617  ACC^llSl'l'lON    OF   RIGHT   OF    WW  §  1153 

presumed  to  ha\e  acquired  if  it  acquired  them  l)y  condemnation 
proceeding's  under  the  statute.-"'  Where  the  riu^ht  of  way  is  ob- 
tained by  contract,  as  well  as  where  it  is  accpiired  l)y  condemna- 
tion, the  company  has  a  right  to  use  suitable  material,  found 
within  the  limits  of  the  right  of  way,  for  the  construction  of  its 
road.  l)Ut  nut  to  take  it  from  the  land  outside  of  such  limits  unless 
there  is  additional  compensation  or  an  agreement  to  that  efifect.-*' 
It  has  also  been  held,  in  other  cases,  that  a  deed  for  a  right  of 
way  gives  the  company  the  right  to  use  it  as  the  statute  pro- 
vides.-' but  that  the  language  of  the  deed  should  be  interpreted  in 
the  light  of  the  surrounding  circumstances,  in  order  to  arrive  at 
the  intention  of  the  parties,-**  and  that,  although  it  contains  a 
clause  gi\ing  the  compan}-  the  right  to  estal)lish  on  the  right  of 
way  so  conveyed  "any  business  connected  with  said  railway  or 
incident  thereto."  this  does  not  give  the  right  to  erect  and  main- 
tain stock  pens  that  would  constitute  a  nuisance."''  A  deed  of  a 
right  of  way  gi\'en  to  correct  a  ])rior  deed  therefor,  and  expressly 

-'''  Ilannan   v.   Southern   R.,  11  S.  E.    301,    it    is    iicld    that    where    the 

Car.   228,    51    S.    E.    689.      See    and  conveyance    of    a    right    of   way   is 

compare  §  1158.     See  also   Colgate  limited   to   a   certain    distance   from 

V.  New  York  &c.  R.  Co..  100  N.  Y.  the   center   line   of   the   road   it   can 

S.   650;    Seaboard   Air   Line   R.    Co.  not    assert    a    right    to    a    greater 

v.  Olive,   142  X.   Car.  257,  55   S.   E.  width       without       ac(|uiring       new 

263:   I  lord  v.  Holston  River  R.  Co.,  rights.      This    case    also    considers 

122  Tenn.  339.  123  S.  W.  dil .     And  the   relative  rights  of  the  company 

the   presumption    is   that    the    com-  and   the   landowner   having  a  right 

pany    in    obtaining   a   right   of   way  to    mine    coal    under    the    right    of 

by    agreement    did    not    intend    to  way. 

barter    away    the     right     to     make  -"  ^^lissouri    i^c.    R.    Co.    v.    Mott. 

necessary      improvements      author-  98  Tex.  91,  81  S.  W.  285.  287.  citing 

ized    by    statute.       Lillcy    v.    Pitts-  Calcasieu  Etmiher  Co.  v.  Harris.  11 

burgh   c'tc.   R.   Co.,  213   Pa.  St.  247,  Tex.    18.    12    S.    W.   453.      See   also 

62  Atl.  852.  Alobile   &c.    R.   Co.   v.   Kamper,  88 

SGTTendlcr    v.    T,ehigh    ^'alley    R.  Miss.   817,   41    So.   513. 

Co..  209  Pa.  St.  256.  58  Atl.  486,  103  -^  Newaygo  Mfg.  Co.  v.  Chicago 

Am.  St.  1005.  In  this  case  however,  i^c.  R.  Co.,  64  Mich.  114.  30  N.  W. 

the    right    to    take    timber   was    ex-  910:   Missouri   &c.   R.   Co.   v.    Mott. 

cepted     by     the     statute     and     the  98  Tex.  91.  81    S.  W.  285.  288. 

agreement    was    treated    as    having  20  Missouri  &c.  R.  Co.  v.  Mott,  98 

the  same  effect.     In  Cincinnati  &c.  Tex.  91,  81   S.  W.  285. 
R.    Co.  V.   Simpson    (Ind.).    104  N. 


§  1154  RAILROADS  618 

reserving  to  the  grantor  all  rights  under  the  former  deed,  has 
been  held  not  to  be  a  waiver  of  a  former  abandonment  of  the 
right  of  way  by  the  company.'"'  ]n  another  case,  a  deed  grant- 
ing a  railroad  company  a  right  of  way  of  a  certain  width  across 
grantor's  land,  followed  by  the  clause,  "this  right  of  way  to  be 
exclusive  for  one  year,"  was  held  not  to  impose  on  the  company 
the  duty  of  entering  within  the  year  under  penalty  of  a  rever- 
sion of  the  grant,  but  merely  to  give  to  the  company  an  exclusive 
right  for  one  year  to  a  way  over  grantor's  land,  after  which  the 
grantor  was  at  liberty  to  grant  other  rights  of  way  to  other 
companies.^^  An  election  not  to  take  advantage  of  an  option  to 
purchase  land  for  right  of  way  purposes  is  shown  by  the  com- 
mencement of  condemnation  proceedings. ■'*- 

§  1154  (934b).  Where  route  is  not  described  in  deed. — (len- 
crally,  where  a  right  of  way  is  granted  to  a  railroad  company 
without  any  particular  description  of  the  route  in  the  deed,  the 
occupancy  of  a  route  l)y  the  railroad  company  with  the  consent 
of  the  grantor  will  sufficiently  identify  and  locate  the  route 
granted. ^^  And.  in  a  recent  case,  where  a  description  was  insuffi- 
cient in  itself,  but  the  company  had  l)een  put  in  possession  and 
had  built  the  road,  the  court  enforced  the  contract.^* 

§  1155  (935).  Enforcement  of  agreement  to  sell — Specific 
performance, — The  railroad  company  may  make  a  binding  agree- 
ment for  the  purchase  of  lands  to  be  conveyed  to  it  at  some  fu- 
ture time,^^  and  may,  in  a  proper  case,  enforce  specific  perform- 
ance of  the  agreement  on  the  part  of  the  land-owner,  under  the. 
rules  governing  decrees  for  specific  performance  of  contracts  in 
general.'"'    These  rules  are  briefly,  but  comprehensi\el}'.   stated 

30  Gill  V.  ChicaRo  &c.  R.  Co.,  117       v.  Burger,  12  Johns.  (N.  Y.)  222. 
Iowa  278,  90  N.  W.  606.  '^^  Howard   v.   Huntington   &c.   R. 

31  Virginia    &c.   R.    Co.   v.    Crow,       Co.,  59  W.  Va.  91,  53  E.  278. 

108  Tenn.  17,  64  S.  W.  485.  ^s  Ross    v.    Chicago    &c.    R.    Co., 

32Stai-nnes   v.    Milwaukee   &c.   R.  77   111.   127;    Dayton    &c.    R.   Co.   v. 

Co.,  131  Wis.  85,  109  N.  W.  100.  Lawton,   20   Ohio    St.   401,   55   Am. 

33  Gaston  v.  Gansville  &c.  R.  Co.,  Dec.  464. 

120  Ga.  516,  48  S.  E.  188;  Pennsyl-  36  See     in     general     Purinton     v. 

vania  R.  Co.  v.  Guthrie.  66  Pa.  Su-  Northern    Illinois    &c.    R.    Co.,    46 

per.    Ct.   470.      See    also    Wynkoop  111.  297;  Telford  v.  Chicago  &c.  R. 


019  ACQUISITION    OF    RIGHT    OF    WAY  §  1155 

])\  liistice  Story.-"  as  follows:  "An  ajj^reement.  to  be  entitled  to 
be  carried  into  specific  performance,  ought  to  be  certain,  fair  and 
just  in  all  its  parts.  Courts  of  equity  will  not  decree  a  specific 
jierformance  in  cases  of  fraud  or  mistake;  or  of  hard  and  uncon- 
scionable barj^ains:  or  where  the  decree  would  produce  injustice; 
or  where  it  would  compel  the  ])arty  to  an  illegal  or  immoral  act; 
or  where  it  would  l)e  against  pul)lic  policy;  or  where  it  would 
involve  a  breach  of  trust;  or  where  a  performance  has  l)ecome 
impossible;  and.  generally,  not  in  any  cases  where  such  a  decree 
would  be  inequitable  under  all  the  circumstances.""^  If,  for  any 
reason,  it  would  be  inequitable  to  compel  performance,  the  party 
will  usually  be  left  to  his  remedy  at  law.^^  But  a  decree  for  spe- 
cific performance  of  a  contract  may  be  granted  in  a  proper  case, 
even  though  the  plaintiff  has  a  remedy  at  law.*''  A  defective  de- 
scription of  land  in  an  agreement  to  convey  may  be  cured  by 
putting  the  vendee  into  possession  of  a  tract  to  which  the  de- 
scription may  be  made  to  apply .*^  In  such  a  case,  conveyance 
of  the  tract  so  delivered  to  the  vendee  may  be  enforced  in  a  court 

Co..  172  111.  559.  50  N.  E.  105:  owner,  as  well  as  the  railroad  corn- 
Minneapolis  &c.  R,  Co.  V.  Cox,  76  pany.  may  have  his  action  for  dam- 
Iowa  306.  41  N.  W.  24,  14  Am.  St.  ages  for  breach  of  the  contract  by 
216:  Boston  &c.  R.  Co.  v.  Babcock,  the  other  party.  Morss  v.  Boston 
3  Cush.  (Mass.)  228;  Blanchard  v.  &c.  R.  Co.,  2  Cush.  (Mass.)  536; 
Detroit  &c.  R.  Co..  31  Mich.  43.  18  Sherwood  v.  St.  Paul  &c.  R.  Co., 
Am.  Rep.  142:  Coe  v.  N.  J.  Mid-  21  IMinn.  122;  Hubbard  v.  Kansas 
land  R.  Co.,  31  N.  J.  Eq.  105;  City  R.  Co.,  63  Mo.  68;  Houston 
Clarke  v.  Rochester  &c.  R.  Co.,  18  R.  Co.  v.  :vIcKinney,  55  Tex.  176. 
Barb.  (N.  Y.)  350;  South  Wales  R.  Specific  performance  was  refused 
Co.  V.  Wythes.  5  DeG.,  M.  &  G.  for  fraud  in  procuring  the  contract 
880:  Holmes  v.  Eastern  Counties  in  Grand  Tower  &c.  R.  Co.  v.  Wal- 
R.  Co..  3  K.  &  J.  675:  Flanagan  v.  ton,  150  111.  428.  37  N.  E.  920. 
Gt.  Western  R.  Co..  L.  R.  7  Eq.  *''  Blanchard  v.  Detroit  &c.  R. 
116;  Hood  v.  Northeastern  R.  Co.,  Co..  31  Mich.  43.  18  Am.  Rep.  142. 
L.  R.  5  Ch.  525.  Eastern       Counties       R.       Co.       v. 

•5"  Story's   E(iuity   Juris..   14th   ed.  Hawkes.   5  H.  L.  Cas.  331. 
§  1055.  ■^^  Purinton    v.    Northern    111.    R. 

•^s  See   note.    43    Am.    &    Eng.    R.  Co..   46   111.   297;    Ottumwa   &c.    R. 

Cas.  645.  Co.    v.    McWilliams,   71    Iowa    164. 

39  Whitney    v.     New     Haven.    23  See  Burrow  v.  Terre  Haute  &c.  R. 

Conn.  624-  Coe  v.  New  Jersey  &c.  Co..    107    Ind.    432.    8    N.    E.    167; 

R.  Co..  31  N.  J.  Eq.  105.    The  land-  Indianapolis    &c.    R.    Co.    v.    Rayl, 


§  1155  K.MLKOADS  620 

of  equity.'*-  And  the  mere  fact  that  the  xahie  of  the  land  exceeds 
the  price  agreed  upon  will  not  ])rt"\  t'lit  a  decree  for  specific  ])er- 
fonnance,  where  tlie  construction  of  the  road  is  a  ])arl  oi  the 
consideration.'''  The  right  to  coni])(.'l  a  specific  performance  oi 
an  agreement  is  reci])rocal.  and  the  land-owner  may,  in  a  ])roper 
case,  compel  the  company  to  perform  a  contract  to  purchase.'*"' 
A  contract  signed  by  only  one  of  the  contracting"  j)arties  cannot 

09  Ind.  424.  In  Hall  v.  I'eoria  &c.  '•' \'iele  v.  Troy  &c.  K.  Co.,  20 
R.  Co..  143  111.  163,  32  N.  E.  598,  it  X.  V.  184;  In-c  v.  Birmingham  &c. 
was  held  thai  a  court  of  equity  R.  Co..  3  DeG.,  .M.  &  G.  658:  Wil- 
would  decree  a  specific  perform-  Hams  v.  St.  George's  11  arbor  Co., 
ance  of  the  contract,  thougli  it  was  2  DeG.  &  J.  547.  Or  recover  dam- 
not  in  writing,  where  one  agreed  ages.  .\1  innea])olis  &c.  R.  Co.  v. 
to  convey  land  to  a  railroad  com-  Cox,  76  Iowa  306,  41  X.  W.  24,  14 
pany  for  depot  purpf)ses,  the  con-  Am.  St.  2l6.  In  lloard  v.  Ihuit- 
hideration  being  paid  and  accepted,  ingt()n  &c.  R.  Co.,  59  W.  \'a.  91, 
and  the  land  staked  out  by  the  53  .S.  E.  278,  the  descri])tion  was 
grantor  and  occupied  by  the  rail-  held  insullicient.  but  as  the  com- 
road  comi)an3-  for  twenty  j-ears.  i)any  had  been  ])ut  in  possession 
witli  valuable  improvements.  See  and  bad  built  the  road  it  was  held 
also  Sands  v.  Kagcy.  150  111.  109.  that  the  \-cn<hir  should  make  a 
36  N.  E.  956;  Cherokee  &c.  R.  Co.  i)ropcr  deed  and  that  the  ccmipany 
V.  Renken,  77  Iowa  316,  42  N.  W.  should  p:\y  the  purchase  money 
307.  with  interest.     The  fact  that  an  ap- 

■*- Ottmnwa  &c.  R.  Co.  v.  Me-  plication  to  p;irlianK-nt  was  neces- 
VVilliams,  71  Iowa  164,  32  N.  W.  sary  to  make  a  goorl  title,  was 
315.  Tn  this  case  suit  w-as- brought  held  not  to  be  a  valid  objection  to 
to  enforce  a  contract  to  convey  "a  a  decree  for  the  specific  perform- 
right  of  way"  of  a  designated  ance  by  a  railroad  company  of  its 
w'idth  "by  deed  in  fec-simi)le,"  and  contract  for  the  purchase  of  lands. 
the  court  decreed  the  conveyance  Eastern  Counties  R.  Co.  v. 
of  an  easement  for  a  right  of  way.  llawkes,  5  H.  1..  Cas.  331;  llawkes 
and  the  supreme  court  affirmed  the  v.  Eastern  Counties  R.  Co..  1  DeG., 
decree,  saying:  "The  purposes  for  'W .  &  G.  737.  liut  where  the  loca- 
which  the  land  was  to  be  u^rd.  ;ind  tiou  of  the  railway  frir  which  the 
the  object  of  the  plaintiff  in  secur-  land  was  taken  has  been  alian- 
ing  the  contract,  was  to  secure  a  doned,  and  it  would  be  inequitable 
right  of  way,  and  not  a  fee-simjile  to  re(|uire  tlie  company  to  pay  a 
title  to  the  land."  ])rice  for  the  land  based  upon  dam- 

'•'"  Ottumwa    &c.    R.    Co.    v.    Mc-  ages    which    were    never    inflicted. 

Williams,   71    Iowa    164,  32   X'.   W.  the  court  will  not  decree  a  specific 

315.     See  Western   R.  Co.  v.   Rab-  performance.        Webb      v.      Direct 

cock,  6  Mete.   (Mass.)   346.  London  &c.  R.  Co.,  9  Hare,  129.  1 


621  ACC^LISITION    OF   KIGUT   UF    WAY    .  §  1156 

ordinarily  hv  enforced  by  the  signer.'''  l)ut  it  may  l)e  enforced 
aii'ainst  him  by  the  other  party  upon  proof  that  he  has  acted 
u])on  it.'*'' 

§1156  (936).  When  specific  performance  will  not  be  en- 
forced.— lu|nit\-  w  ill  not.  as  a  rule,  decree  the  specific  perform- 
ance of  a  contract  to  do  a  succession  of  acts  extending  through 
a  long  period  of  time,  and  requiring  the  exercise  of  skill  and 
discretion  in  their  ])erf()rmance.^'  Accordingly,  the  land-owner 
cannot  enft>rce  specific  performance  of  a  contract  made  in  con- 
sideration of  the  grant  of  a  right  of  way.  by  which  the  railroad 
undertakes  to  build   a   branch  road/®  to  operate  a   line   of  rail- 

DcG..  M.  &  G.  521:  W'liilney  v.  and  llic  land  flaked  out  by  the 
New  Haven,  23  Conn.  624.  See  .grantor  and  occupied  by  the  rail- 
also  as  to  right  of  landowner  to  road  company  for  twenty  years 
compel  specilic  performance  of  an  with  valuable  improvements.  East 
agreement  for  a  crossing.  Childs  Tennessee  &c.  R.  Co.  v.  Davis,  91 
v.  Boston  &c.  R.  Co..  213  Mass.  91.  Ala.  f)15.  8  So.  349. 
99  N.  E.  957.  48  L.  R.  A.  ( \.  S.)  ■»'  -Marble  Co.  v.  Ripley,  10  Wall. 
378,  387  and  cases  there  cited  in  ( U.  S.)  339,  19  L.  ed.  955;  Ross  v. 
note.  Union    Pac.    Co..    Woolw.    (U.    S.) 

43  Boston  &c.  R.  Co.  v.  Bartlett.  26;  Blanchard  v.  Detroit  &c.  R.  Co., 
10  Gray  (Mass.)  384:  Jacobs  v.  31  Mich.  43,  18  Am.  Rep.  142; 
Peterborough  &c.  R.  Co..  8  Cush.  South  Wales  R.  Co.  v.  Wythes,  1 
(Mass.)  223.  And  where  the  con-  K.  &  J.  186;  Ranger  v.  Great  West- 
tract  was  a  mere  option  to  pur-  crn  R.  Co.,  1  Eng.  R.  &  Can.  Cas.  1. 
chase  it  was  held  that  the  railroad  ■**  Peto  v.  Brighton  &c.  R.  Co.,  1 
company  had  elected  not  to  take  H.  &  'SI.  468:  South  Wales  R.  Co. 
advantage  of  it  by  beginning  con-  v.  Wythes,  1  K.  &  J.  186:  Munro 
demnation  proceedings.  Stamnes  v.  Wivenhoe  &c.  R.  Co.,  4  DeG. 
V.  Milwaukee  &c.  R.  Co.,  131  Wis.  J.  &  S.  723:  Heathcote  v.  North 
85.  109  N.  W.  100.  Staffordshire  R.  Co.,  20  L.  J.  N.  S. 

'"Old  Colony  R.  Co.  V.  Evans.  Ch.  82;  Waring  v.  :\ranchester  &c. 
6  Gray  (Alass.)  25.  66  Am.  Dec.  R.  Co.,  7  Hare  482:  Ross  v.  Union 
394.  But  in  liall  v.  Peoria  cSjc.  R.  Pacific  R.  Co..  Woolw.  (U.  S.)  26. 
Co.,  143  111.  163,  32  X.  E.  598,  it  In  Hoard  v.  Chesapeake  &c.  R. 
was  held  that  a  court  of  equity  Co.,  123  U.  S.  222,  8  Sup.  Ct.  674, 
would  decree  a  s])ccitic  perform-  31  L.  ed.  130,  the  court  declined  to 
ancc  of  the  contract,  though  it  was  enforce  the  specific  performance 
not  in  writing,  where  one  agreed  of  an  agreement  to  build  the  rail- 
to  convey  land  to  a  railroad  com-  road  across  certain  lots  through 
pany  for  depot  purposes,  the  con-  which  it  was  granted  a  right  of 
sideration  being  paid  and  accepted,  way. 


§  1156 


li.ULROADS 


U22 


road,"*"  to  stop  daily  trains  a  certain  point  on  the  road,'"'  or  to 
erect  fences  and  cattleg-uards  and  keep  them  in  repair."  lUit  it 
has  been  held   tliat  the  breach  of  such  a  contract  may  l)e  ])re- 


•»■•  Port  Clinttni  R.  Co.  v.  Cleve- 
land R.  Cn..  13  Ohio  St.  544.  In 
this  case  the  P.  C.  Co.  conveyed  its 
line  to  the  Cleveland  Co.  by  lease 
in  partial  consideration  of  a  cov- 
enant t)n  the  part  of  the  Cleveland 
Co.  to  keep  the  road  in  operation. 
A  railroad  cori)oratinn,  in  consid- 
eration of  a  grant  of  the  right  of 
way  through  the  premises  of  S.. 
contracted  to  place  beside  their 
road,  on  said  premises,  a  platform 
convenient  for  lading  and  unlading 
cars,  and  t<>  take  from  that  plat- 
form all  produce  to  be  shipped  by 
S.,  and  to  bring  and  place  on  it  all 
freight  shipped  by  or  for  him  to 
that  place  from  any  other  point  on 
their  road,  provided  that  the  rail- 
road had  three  days'  notice  of  any 
such  freight  to  be  transported. 
Held,  that  a  i^ill  in  equity  would 
not  lie  to  compel  a  specific  per- 
formance of  the  contract.  Atlanta 
&c.  R.  Co.  V.  Speer,  32  Ga.  550,  79 
Am.  Dec.  305. 

■50  Rlanchard  v.  Detroit  &c.  R. 
Co..  31  Mich.  43,  18  Am.  Rep.  142. 
In  this  case  the  court  said:  "If  the 
writing  embodies  any  promissory 
agreement  at  all,  it  is  that  when 
and  so  long  as  trains  run  on  the 
road,  one  train  each  way  shall 
every  day  stop  at  that  place,  and 
also  that  passengers  and  freight 
shall  there  be  regularly  received 
and  discharged.  .  .  .  Waiving  all 
considerations  of  possible  future 
action  by  the  government  under 
the  postal,  war,  police  or  other 
powers,  inconsistent  with   any  par- 


ticular decree  which  might  now  be 
made,  can  the  court  see  that  in  all 
coming  time  these  requirements 
are  carried  out?  Can  it  know  or 
keep  informed  whether  trains  are 
running,  and  what  accommodations 
are  suitable  to  the  public  interest? 
Can  it  see  whether  the  proper  stop- 
I)ages  are  made  each  day?  Can  it 
take  notice,  or  legitimately  and 
truly  ascertain  from  day  to  day, 
what  amounts  to  regularity  in  the 
receipt  and  discharge  of  passengers 
and  freight?  Can  it  have  the  means 
of  deciding  at  all  times  whether 
the  due  regularity  is  observed? 
Can  it  superintend  and  supervise 
the  business,  and  cause  the  re- 
quirements in  question  to  be  car- 
ried out?  If  it  can,  and  if  it  may 
do  this  in  regard  to  one  station  on 
the  road,  it  may  with  equal  pro- 
priety upon  a  like  showing  to  the 
same  in  regard  to  all  station  on 
the  road,  and  not  only  so,  hut  in 
regard  to  all  stations  on  all  the 
present  and  future  roads  in  the 
state." 

•''1  Cincinnati  &:c.  R.  Co.  v.  Wash- 
burn. 25  Ind.  259;  Columbus  &c. 
R.  Co.  V.  Watson,  26  Ind.  50.  But 
see  opinion  in  Dayton  v.  Lewton, 
20  Ohio  St.  401,  55  Am.  Dec.  464; 
Aikin  v.  .Mbany  &c.  R.  Co.,  26 
Barb.  (N.  Y.)  289;  Midland  R.  Co. 
v.  iMsher,  125  Ind.  19,  24  N.  E.  756, 
8  L.  R.  A.  604,  and  note,  21  Am. 
St.  189.  A  covenant  by  a  railroad 
company  in  consideration  of  a 
grant  of  a  right  of  way  to  fence  it 
and  put  in  cattle-guards  and  cross- 


623 


ACQUISITION   OF   KKllIT   OF   WAY 


§1157 


vented  by  injunction."'-  Where  the  railroad  company  makes  a 
contract  with  persons  who  are  known  to  have  no  interest  in 
the  lands  through  which  it  desires  to  run,  by  which  such  persons 
bind  themselves  to  procure  the  owners  to  grant  a  right  of  way 
across  such  lands  to  the  railroad,  it  cannot  have  a  decree  for 
specific  performance,  l)ut  must  be  left  to  its  action  at  law  for 
damages.  The  court  will  not  command  the  defendants  to  con- 
trol the  actions  of  other  persons  not  before  the  court.'"' 

§  1157  (937).  Effect  of  conveyance  or  release  of  damages. — 
The  conveyance  of  land  to  a  railroad  for  a  right  of  way'*  or  the 
execution  of  a  release  of  damages  for  its  construction  '^  usually 
has  the  same  efifect  as  the  assessment  and  payment  of  damages 
under  proceedings  for  condemnation,  and  the  land-owner  can 
claim  no  further  damages  for  the  legal  and  proper  construction 


ings  runs  with  the  hind,  and  is 
binding  upon  immediate  and  subse- 
quent grantees,  and  passes  to  im- 
mediate and  remote  grantees  of 
both  the  easement  and  the  fee- 
simple.  Toledo  &c.  R.  Co.  v.  Co- 
sand,  6  Ind.  App.  222.  See  also 
Lake  Erie  &c.  R.  Co.  v.  Priest,  131 
Ind.  413,  31  N.  E.  11;  Childs  v.  Bos- 
ton &c.  R.  Co..  213  Mass.  91,  99 
N.  E.  957,  48  L.  R.  A.  (N.  S.)  378, 
(agreement  to  put  in  crossing  en- 
forced). 

-'-  It  is  now  firmly  established 
that  the  court  will  often  interfere 
by  injunction  to  restrain  acts  in 
violation  of  a  lawful  contract,  al- 
though the  nature  of  the  contract 
is  such  that  specific  performance 
would  not  be  enforced.  Singer 
Sewing  Machine  Co.  v.  Union  &c. 
Co.,  1  Holm.  (U.  S.)  253;- Western 
I^nion  Tel.  Co.  v.  Union  Pac.  R. 
Co.,  3  Fed.  423.  429:  Coe  v.  Louis- 
ville &c.  R.  Co.,  3  Fed.  775;  Wells, 
Fargo  &  Co.  v.  Oregon  &c.  R.  Co., 


18  Fed.  517:  Wells,  Fargo  &  Co.  v. 
Northern  Pac.  R.  Co.,  23  Fed.  469; 
Chicago  &c.  R.  Co.  v.  New  York 
&c.  R.  Co.,  24  Fed.  516,  22  Am.  & 
Eng.  R.  Cas.  265,  aand  note  on 
page  271.  See  also  Miller  v.  Lake 
Shore  &c.  R.  Co..  88  Ohio  St.  499, 
103  N.  E.  374;  Tyler  v.  St.  Louis 
&c.  R.  Co.,  99  Tex.  491,  91  S.  W.  1. 
For  instances  where  affirmative 
acts  have  been  required  similar  to 
those  prayed  for  in  the  cases  cited 
in  preceding  notes,  see  ante,  §  T2)}> 
et  seq. 

•"•^  Chicago  &c.  R.  Co.  v.  Durant, 
44  Minn.  361,  46  N.  W.  676,  46  Am. 

6  Eng.  R.   Cas.  488. 

=54  St.  Louis  &c.  R.  Co.  V.  Wal- 
bring,  47  Ark.  330.  1  S.  W.  545: 
St.  Louis  &c.  R.  Co.  V.  Hurst,  14 
111.  App.  419. 

•■■'5  Eaton  v.  Boston  &c.  R.  Co.. 
51  N.  H.  504,  12  Am.  Rep.  147.  See 
Trickey  v.  Schlader,  52  111.  78: 
Freeman    v.   Weeks,   45    Mich.   335. 

7  N.  \\\  904. 


§  llo/                                                           RAILROADS  624 

of  the  railroad.''®  The  same  effect  has  been  given  to  a  receipt  ])y 
the  owner  for  the  amount  of  damages  agreed  upon.""'  It  has  been 
held  that  a  release,  to  be  binding,  must  have  been  executed  by 

the  owner  while  free  from  legal  disabilities,^®  and  must  be  free 

•'■"  McDonald  v.  Southern  Cali-  road  across  the  land  of  an  adjoin- 
fornia  R.  Co.,  101  Cal.  206,  35  Pac.  in<j;  jji-oprietor;  Eaton  v.  Boston 
643;  Gilbert  v.  Savannah  &c.  R.  &c.  R.  Co.,  51  X.  H.  504.  12  Am. 
Co.,  69  Ga.  396:  Stodghill  v.  Chi-  Rep.  147:  St.  Louis  &c.  R.  Co.  v. 
cago  &c.  R.  Co.,  43  Iowa  26,  22  Harris,  47  .\rk.  340,  1  S.  W.  609. 
Am.  Rep.  211:  Chicago  &c.  R.  Co.  Sec  also  Egbert  v.  Lake  Shore  &c. 
V.  Smith.  Ill  111.  363:  St.  Louis  R.  Co.,  6  hid.  App.  350,  33  N.  E. 
&c.  R.  Co.  V.  Van  Hoorebeke,  191  659:  Doan  v.  Cleveland  &c.  R.  Co., 
111.  633,  61  N.  E.  326:  McCarty  v.  54  Ind.  App.  620,  100  N.  E.  95  (not 
St.  Paul  &c.  R.  Co.,  31  Minn.  278.  released  from  damages  for  lovver- 
17  N.  \V.  616:  Radke  v.  Minneap-  ing  grade  on  old  right  of  way  by 
olis  &c.  R.  Co.,  41  Minn.  350,  43  grant  of  adjoining  strip);  Hartley 
N.  W.  6:  Benson  v.  Chicago  &c.  v.  Keokuk  &c.  R.  Co.,  85  Iowa  455, 
R.  Co.,  78  Mo.  504:  Moreley  v.  52  N.  W.  352:  Lunden  v.  Brook- 
Chicago  &c.  R.  Co.,  57  Nebr.  636,  ings  &c.  R.  Co.,  31  S.  Dak.  357,  141 
78  N.  W.  293,  294:  North  &c.  R.  X.  W.  93.  The  grant  of  a  right  of 
Co.  v.  Swank,  105  Pa.  St.  555:  way  gives  the  company  the  right 
International  &c.  R.  Co.  v.  Bost,  to  raise  its  grade  without  liabilitj- 
2  Tex.  Ct.  App.  (Civ.  Cas.)  334:  for  damages  to  the  rest  of  the 
Houston  &c.  R.  Co.  v.  Adams,  58  tract  owned  by  the  grantor,  but  the 
Tex.  476:  Norris  v.  Vermont  Cen-  company  is  liable  to  the  owners  of 
tral  R.  Co.,  28  \'t.  99:  Watts  v.  land  abutting  on  a  highway  for  in- 
Xorfolk  &c.  R.  Co..  39  W.  Va.  196,  jury  {<>  their  rights  as  such  abutter 
19  S.  E.  521,  23  L.  R.  A.  674,  45  by  raising  the  approaches  of  the 
Am.  St.  894:  Croft  v.  London  &c.  highuiiy  outside  the  company's 
R.  Co.,  3  B.  fc  S.  436,  113  Eng.  C.  right  of  way.  Fleming  v.  Elgin 
L.  R.  435:  Kirk  v.  Kansas  City  &c.  &c.  R.  Co..  275  111.  486,  114  N.  E. 
R.  Co.,  51  La.  Ann.  667,  25  So.  187:  Longworth  v.  Meriden  &c.  R. 
457.  461  (citing  text).  See  als<^  Co.,  61  Cmn.  451,  23  Atl.  827.  And 
Hodge  v.  Lehigh  Val.  R.  Co.,  39  see  also  as  to  damages  for  removal 
Fed.  449:  Burrows  v.  Terre  Haute  of  lateral  supptn-t  not  being  cover- 
fee.  R.  Co.,  107  Ind.  432:  Hord  v.  ed  in  Kentucky.  Louisville  &c.  R. 
Holsten  River  R.  Co.,  122  Tenu.  Co.  v.  Culbertson,  158  Ky.  561,  165 
399,    123    S.    W.   637,    135   Am.    St.  S.  W.  681. 

878:  Libby  v.  Canadian  Pac.  R.  Co.,  "  Rockland  Water  Co.  v.  Tillson, 

82  Vt.  316,  73  Atl.  593.     But  it  has  69    Maine   255. 

been    held    that    he    is    not    barred  ^^  Delaware    &c.    R.    Co.    v.    Bur- 

from      an      action      for      damages  son,  61  Pa.  St.  369. 
caused   bv   the   construction   r>f  the 


025  ACQI'ISITION   OF   RIGHT   OF    WAY  §  1157 

irom  fraud. •'^^■'  If  it  was  made  upon  a  condition,  the  performance 
of  the  condition  must  be  shown/'"  It  will  be  presumed,  however, 
that  a  deed  to  the  right  of  way,  or  a  release  of  damages,  was 
executed  in  contemplation  of  the  lawful  and  i)roper  construction 
of  the  road,  and  the  land-owner  will  be  permitted  to  recover  for 
damages  occasioned  by  negligence  and  lack  of  skill,"'  such  as  a 
failure  to  pro\  ide  necessary  culverts,"-  the  diversion  of  a  stream 
of  water,"^  the  negligent  removal  of  earth  by  which  the  adjoin- 
ing soil  is  deprived  of  support,''*  or  the  construction  of  its  em- 

•-■•'  Rock-ford    &c.    R.    Co.    v.    Slui-  R.    Co.    v.    Eagles.   9    Colo.   544,    13 

nick,  65  in.  223.  Pac.  696;  Ohio  &c.  R.  Co.  v.  Thill- 

'>"  Rockt.)r(l    &c.    R.    Co.    v.    Shu-  man,  143  111.  127.  31  X.  E.  529,  2>6 

nick,    65    ill.   Hi.      See    also    Hum-  Am.  St.  359. 

phreys  v.  Richmond  &c.  R.  Co.,  88  "-  Heath  v.  Texas  &c.  R.  Co.,  2,7 
Va.  431.  13  S.  E.  985:  Rredin  v.  La.  Ann.  728.  See  also  Van  Wert 
Pittsburgh  &c.  R.  Co.,  165  Pa.  St.  Co.  v.  Peirce,  90  Fed.  764:  O'Con- 
262,  31  Atl.  39.  lUit  compare  Mat-  nell  v.  East  Tenn.  &c.  R.  Co.,  87 
son  V.  Port  Townsend  &c.  R.  Co.,  Ga.  246.  13  S.  E.  489.  13  L.  R.  A. 
9  Wash.  449,  Z7  Pac.  705.  In  a  re-  394,  and  note  27  Am.  St.  246:  Em- 
cent  case  before  the  ^lissouri  Su-  cry  v.  Raleigh  &c.  R.  Co.,  102  N. 
preme  Court,  it  was  held  that  the  Car.  209,  9  S.  E.  139,  11  Am.  St. 
railway  company'.s  charter,  by  pro-  727;  Chicago  &c.  R.  Co.  v.  Ely,  77 
viding  for  relinquishment  of  the  Nebr.  809,  110  N.  W.  539.  But  see 
right  of  way  by  the  "owuer,"  im-  Forsythe  v.  Southern  R.  Co.  (Ky. 
pliedly  made  it  unnecessary  for  the  .A.pp.).  113  S.  W.  85. 
wife  to  join  in  the  conveyance  by  ea  Stodghill  v.  Chicago  &c.  R. 
reason  of  her  inchoate  right  of  Co.,  43  Iowa  26,  22  Am.  Rep.  211: 
dower,  ard  it  made  no  difference  Toledo  &c.  R.  Co.  v.  Chicago  &c. 
that  the  husband  did  not  convey  R.  Co.,  155  111.  9,  39  N.E.809. 
directly  to  the  railroad,  but  by  "■*  Ludlow  v.  Hudson  River  R. 
mesne  conveyances.  Chouteau  v.  Co.,  6  Lans.  (N.  V.)  128.  See  also 
^lissouri  Pac.  R.  Co.,  122  Mo.  375.  Nading  v.  Denison  &c.  -R.  Co. 
22  S.  W.  458,  30  S.  W.  299.  (Tex.  Civ.  App.).  62  S.  W.  97.     It 

fii  Jacksonville  &c.  R.  Co.  v.  Cox.  has    been    held    that    a    general    re- 

91   111.  500:  TTortsman  v.  Lexington  lease  of  damages  covered  all  dam- 

(."^cc.   R.   Co..  IS   P..   Mon.   (Ky.)   218:  ages     from     the     making     of     cuts 

Ludlow    V.    Hudson    River    R.    Co..  necessary  to  the  proper  enjoyment 

6    Lans.    (X.    Y.)    128:    Spencer    v.  of   the   right   of  way.   and   that   the 

Hartford    i1-c.   R.    Co..    10   R.    I.    14:  company    is     not    bound     to     build 

Hatch   V.  Vermont   Cen.tral    R.   Co..  walls    to    prevent    the    banks    froni 

25    \'t.    49.    7\).      See    also    Sims    v.  falling.       LTortsman     v.     Covington 

Ohio   River   &c.  R.  Co..  56  S.   Car.  -t    R.   Co..  18  R.  :don.   (Ky.)  218. 

30.   :•>:•,   S.    K.   746;    C^er.-v.-Mvn    &c.  See  post.  §  1233. 


^  lloS  KAILUOADS  626 

bankment  in  such  a  way  as  to  unnecessarily  flood  the  grantor's 
land."-'  or  leave  dirt  and  rock  upon  a  part  not  .granted.'"'  It  has 
also  been  held  that,  wlu-rt-  the  statute  recpiires  a  railroad  com- 
pany to  fence  its  right  of  way.  a  conveyance  t)l  a  right  of  way 
in  consideration  of  a  ])romise  to  fence  is  without  consideration, 
and  does  not  ])revent  the  grantor  from  afterwards  having  his 
damages  assessed."^  So,  it  was  held,  in  another  case,  that  a  deed 
conveying  a  right  of  way,  and  releasing  all  damages  by  reason 
of  the  location  and  construction  of  the  railroad,  did  not  release 
the  grantor's  right  to  a  way  of  necessity  across  the  land  con- 
veyed.*^^ 

§  1158  (938).  What  estate  is  taken. — An  estate  in  fee  may  be 
acquired  by  purchase,  even  though  the  corporation  is  created  for 
c.  limited  period,  and  the  fee  so  acquired  may  be  transferred  to 
the  successor  or  assignee  of  the  company.*'^  The  question  as  to 
what  estate  is  acquired  by  the  railroad  company  under  a  grant 
must  usually  be  settled  by  reference  to  the  deed  of  conveyance.'" 
And  the  mere  fact  that  the  railroad  company's  charter  empow- 

6''  St.  Louis  &c.  R.  Co.  V.  Morris,  32    \'t.    68.      See    also    Watkins    v. 

35  Ark.  622;  New  York  &c.  R.  Co.  Iowa  Central  R.  Co.,  123  Iowa  390, 

V.    Hamlet   Hay   Co.,   149   Ind.  344.  98  N.  W.  910;  Enfield  Mfg.  Co.  v. 

49   N.  E.  269;  Hunt  v.  Iowa  Cent.  Ward.    190    Mass.    314.    76    N.    E. 

R.  Co.,  86  Iowa   15,  52  N.  W.  668.  1053;  Coburn  v.  Coxeter,  51    N.  H. 

41  Am.  St.  473.  158;  Page  v.  Heineberg,  40  Vt.  81, 

60  Watts  V.    Norfolk   &c.    R.    Co.,.  94    Am.    Dec.    378,    and    ncnc.      In 

39  W.  Va.   196,   19  S.  E.  521.  23   L.  Wisconsin  it  is  held  that  a  railroad 

R.  A.  674,  45  Am.  St.  894.  taking  a  warranty  deed  to  a  strip 

0"  Shortle  v.  Terre  Haute  &c.  R.  of    land    for    its    track    acquires    a 

Co.,   131    Ind.  338.  30  N.   E.   1084.  title    in    fee,    subject,    at    most,    to 

fis  New  York   &c.   R.  Co.  v.   Rail-  forfeiture    for   nonuser    or    misuser, 

road    Comrs.,    162   Mass.   81.   38    X.  and  not  a  mere  easement.     Hicks  v. 

E.   27.     See  also  Cleveland  &c.    K.  Smith,  109  Wis.  532.  85  N.  W.  512. 

Co.  V.  Smith,  177  Ind.  524,  97  N.  E.  '"  Cincinnati  &c.  R.  Co.  v.  Geisel, 

164:     Pittsburgh     &c.     R.     Co.     v.  1 19  Ind.  77,  21  N.  E.  470.     See  also 

Kcarns.    58   Ind.    App.   694,    108    X.  as    to    the    width,    Olive    v.    Sabine 

E.  873.'  ^^-i^-  R-  Co..  11  Tc.x.  Civ.  App.  208. 

fi"  Holt    V.    City    &c.    of    Somer-  33   S.   W.   139;   Indianapolis   &c.   R. 

ville,  127  Mass.  408;  Nicoll  v.  New  Co.   v.    Reynolds,    116    Ind.   356,    19 

York    &c.    R.    Co.,    12    N.    Y.    121;  N:  E.   141. 
Hill    v.   Western   Vermont   R.   Co.. 


627  ACCillSITKJX    OF   KIGIIT  OF   WAY  §  1158 

ercd  it  to  acquire  a  greater  estate  than  that  which  it  contracted 
for  does  not  affect  its  rights  in  the  land  purchased.'*  Under  the 
Missouri  statute,  however,  it  has  been  held  that  a  railroad 
company  takes  only  an  easement  under  a  deed  purport- 
ing to  convey  the  fee.'-  The  courts  of  North  Carolina'^ 
.ind  Iowa'"  seem  to  take  the  same  ])<)siti()n.  and  hold 
that  a  deed  conveying  land  to  a  railroad  for  a  right  of 
way  gives  the  railroad  no  more  rights  than  it  would  have 
acquired  by  condemnation.  In  the  latter  state  it  is  said: 
"The  easement  is  not  that  spoken  of  in  the  old  law  I)ooks.  but 
is  peculiar  to  the  use  of  a  railroad  which  is  usually  a  permanent 
improvement,  a  perpetual  highway  of  travel  and  commerce,  and 
will  rarely  l)e  abandoned  by  nonuser.  The  exclusive  use  of  the 
surface  is  acquired,  and  damages  are  assessed,  on  the  theory  that 
the  easement  will  be  perpetual;  so  that,  ordinarily,  the  fee  is  of 
little  or  no  value  unless  the  land  is  underlaid  by  quarry  or 
mine."'^  Where  the  intention  to  convey  a  fee  does  not  appear,'*' 
as  in  case  of  the  conveyance  of  a  "right  of  way"  for  the  railroad 

-1  Cincinnati  &c.  R.  Co.  v.  Geisel,  "^  Shepard  v.  Suffolk  &c.   R.  Co., 

119  Ind.  n,  21  N.  E.  470.  140  N.  Car.  391,  53  S.  E.  137.     See 

72  Chouteau  v.  :\Iissouri  Pac.  R.  also  to  same  effect  Hodges  v.  Tel- 
Co.,  122  Mo.  375,  22  S.  W.  458,  30  egraph  Co.,  133  N.  Car.  225,  45  S. 
S.    W.    299;    Union    Depot    Co.    v.  E.  572. 

Frederick.    117   Mo.    138,  21    S.    W.  '■»  Smith  v.  Hall,  103  Iowa  95,  11 

1118:    St.    Louis    &c.    Co.   v.    Clark,  N.   W.   427. 

121   Mo.  169,  25  S.  W.  192,  906,  26  "''Smith  v.  Hall,  103  Iowa  95,  72 

L.    R.    A.    751.      "The    term    'ease-  N.  W.  427.     See  also  Santa  Fe  &c. 

ment,"  as  employed  in  those  cases.  R.   Co.  v.  Loune   (Okla.),  168  Pac. 

was  not  used  in  its  strict,  technical  1022    (warranty    deed    for    railroad 

sense,   but   partakes,   rather,  of   the  right   of   way   held    not   to   vest   an 

meaning  of  an  interest  in  the  land,  absolute   title    in    the   company   but 

than  of  the  original  meaning  given  only    an    interest    limited    by    such 

to   the   term,   'easement;'   that  is,   a  use,    so    that    on    its    abandonment 

right   in   common,   with   the  owner  the    land    reverts    to    the    origmal 

or     others."       Royce     v.     Missouri  owners"). 

Pac.  R.  Co.,  168  Mo.  583,  68  S.  W.  "6  Junction    R.   Co.  v.   Ruggles,   7 

920,  58  L.  R.  A.  442.  Ohio  St.   1. 


§  lloS                                                             RAILKOADS  628 

thrf)iio-h  certain  lands,"  the  company  takes  an  easement  only."^ 

[\\hen  tlie  width  of  the  right  of  way  is  not  specified  in  the  grant 

""  Cincinnati  &o.  R.  Cn.  v.  Geisel.  obtained  by  lawful  condemnation 
119  hid.  77.  21  X.  l-^.  470:  Blakely  to  i)uljlic  use  or  l)y  inn-chase. 
V.  Cliica^-o  &c.  R.  Co..  46  Xel)r.  (.Mills  I'.ni.  Dom.  §  110.)  It  would 
272.  64  X.  W.  972;  Cincinnati  &c.  be  using  the  term  in  an  unusual 
R.  Co.  V.  Wachter.  70  Ohio  -St.  11.3.  sense,  by  applying  it  to  an  aliso- 
70  X.  K.  974:  Chi  v.  Ohio  River  lute  purchase  of  the  fee-simple  of 
R.  Co..  51  W.  y-d.  106.  41  .S.  1^.  lands  to  be  used  fiu"  a  railway  or 
340.  Where  the  dt-cd  conveys  the  any  other  kind  of  way."  See  Walk- 
land  absolutely  "for  railroad  pur-  er  w  Illinois  Cent.  R.  Co..  215  111. 
poses."  it  has  1)een  said  that  the  610,  74  X.  K.  812:  Wild  v.  Deig.  43 
railroad  company  takes  a  base  or  Ind.  455,  13  Am.  Rc]).  399;  ]'\i\f{ 
(lualitied  fee,  liable  to  be  divested  v.  Terre  Haute  &c.  R.  Co..  108  Ind. 
whenever  the  land  is  devoted  to  144.  9  X.  I'..  93:  Lake  l^rie  &c.  R. 
other  uses.  State  v.  Ih-own,  27  N.  Co.  v.  Ziebarlh.  6  Ind.  .\pi).  228.  33 
J.  L.  13.  .\  deed  to  a  railroad  com-  X.  K.  256:  P.odfish  v.  I'.odfish,  105 
pany  entitled  "Deed  of  Right  of  Mass.  317:  Jones  v.  \'an  liochove. 
Way,"  but  in  the  form  of  a  regular  103  .Mich.  93.  61  X.  W.  342;  Blake- 
warranty  deed,  will  convey  the  fee  ly  v.  Chicago  t*v:c.  R.  Co.,  46  Ne'  ■. 
and  not  merely  an  easement.  I'al-  272.  64  X.  W.  972:  Stuyvesant  v. 
lard  V.  Louisville  &.c.  R.  Co..  9  Ky.  Woodruff.  21  X.  J.  L.  133.  47  Am. 
L.  523,  5  S.  W.  484.  .\  contract  re-  Der.  156.  Where  a  Land-owner  con- 
leasing  to  a  railroad  company  a  veys  to  a  railroad  ccunpany  a  right 
right  of  way  of  indefinite  size  and  of  way.  and  the  property  and  fran- 
location,  through  certain  land,  and  chises  of  the  company  to  which 
a.greeing  to  convey  a  strip  of  the  conve\-ance  is  made  are  subse- 
ground  by  metes  and  bomids.  by  (piently  mortgaged  and  sold  on  a 
deed  in  fee-simple,  when  desired,  decree  of  foreclosure,  the  raih-oad 
has,  however,  bet  n  held  to  be  a  comp;iny  which  becomes  the  owner 
contract  for  the  conveyance  of  an  <if  such  ])roperty  and  franchises, 
easement  merely  and  not  the  fee.  .and  constructs  a  railroad  on  the 
Ottnmwa  &c.  R.  Co.  v.  McWil-  right  of  way.  will  be  entitled  to 
Hams.   71    Iowa    164.  32   N.   W.  315.  ihe    easement    granted   to   the   com- 

'Mn  Williams  v.  Western  Uni..n  pany  by  which  the  ni..rtgage  was 
R.  Co..  50  Wis.  71.  5  .\m.  &  Eng.  executed.  Columbus  8:c.  R.  Co.  v. 
R.  Cas.  290.  Judge  Orton.  speaking  I'.raden.  110  Ind.  558.  11  X.  K.  357. 
for  the  court,  said:  '"Right  of  Cnder  a  written  agreement  a  land- 
way."  in  its  strict  meaning,  is  'the  owner  granted  and  conveyed  to  a 
right  of  ])assage  over  another  railro.ad  company  "the  lull  and 
man's  ground:'  and  in  its  legal  and  free  right  of  way,  of  the  width  of 
generally  accei)ted  meaning,  in  50  feet,"  through  his  laud  on  a  line 
reference  to  a  railway,  it  is  a  mere  previously  surveyed  and  cove- 
easement    in    the    lands    of    others.  nanted  to  execute  a  deed  when  re- 


(i2i)  Acqiisrnox  ok  Kicirr  of  way  §  1158 

llic  c-onii)any  will,  in  general,  ac(|nire  only  so  much  as  is  actually 
l;iken  and  used.'"  or  is  reasonably  necessary,^"  and  the  acts  and 
dfclaralions  of  the  jiarties  are  admissible  to  determine  the 
w  idlh."'  Tlierc  is  much  reason,  however,  lor  holding"  that,  where 
till'  width  is  not  s])ecified.  and  there  is  nothing  either  in  the  con- 
tract or  in  the  acts  of  the  parties  to  indicate  that  less  than  the 
statutor\-  width  was  gi-antcd.  it  will  be  presumed  that  a  right 
of  wa\-  of  the  full  statutor}-  width  was  intendecLf-  Where  land 
is  con\e\e(l  to  a  railroad  company  in  fee-simple,  the  company 
ma\-  (le\()te  it  to  any  use  to  which  a  ])rivate  owner  might  ]iut 

(inircd    l)y    tlic    railroad    comi)any.  ("iray      (Mass.)      423;     Onthank     v. 

conveyiiiK    il"-'    land    in    fee-simple.  Lake    Shore   &c.    R.   Co.,   71    N.    Y. 

The  instrnnient  was  signed  and  ac-  194.  11  Am.   Rep.  35:   Pennsylvania 

knowledgcd    by    the    grantor    alone  R.   Co.   v.   Pearsol,   173    Pa.  St.  496, 

and  filed  for  record  by  the  railroad  34   .\tl.   226. 

eom])any   and   some   16  years   after-  ^-Indianapolis      &c.      R.      Co.     v. 

ward    when    oil    was   discovered    on  Ray!,  69  Ind.  424:  Prather  v.  West- 

the  right  nf  way,  the  railroad  com-  ern    Unitin    Tel.    Co.,    89    Ind.    501; 

])any  demanded  a  deed.  Tt  was  held  Campbell    v.     Indianapolis    &c.    R. 

that    a   right   of   way   only   was   in-  Co..    110    Ind.    490,    11    X.    E.    482; 

tended  to  be  conveyed  and  that  the  Hargis  v.  Kansas  City  &c.  R.  Co., 

railroad     company    took     only    an  100  Mo.  210,  13  S.  W.  680;  Morris 

easement    in    the    land.      Lockwood  ^c.   R.   Co.  v.   Bonnell,  34  N.  J.   L. 

V.  Ohio  River  R.  Co.,  103  Fed.  243.  474:     Philadelphia     &c.     R.     Co.    v. 

-0  Fort  Wayne  &c.  Co.  v.  Sherry,  Obert.     109    Pa.     193,     1     Atl.    398; 

126  Ind.  334.  25  N.  E.  898,  10  L.  R.  Jones  v.   Erie    &c.   R.    Co..   144   Pa. 

A.  48;   Peoria   &c.  R.  Co.  v.  Attica  St.    629.    23    Atl.    251;    Dnck    River 

&c.  R.  Co.,  154  Ind.  218,  56  N.  E.  &c.    R.    Co.    v.    Cochrane.    3    Lea 

210;  Lake  Erie  &c.  R.  Co.  v.  :Miche-  (Tenn.)   478;   Nashville  &c.   R.  Co. 

ner.  117   Ind.  465.  20  N.  E.  254.  See  v.    ^IcReynolds    (Tenn.    Ch.)    48    S. 

also    .Morgan    v.    Railroad    Co.,    96  W.   258.     But  see   Nashville   &c.   R. 

U.  S.  716,   24  L.  cd.  743:   Nashville  Co.  v.   Llammond.   104  Ala.   19L   15 

&c.   R.   Co.   V.   Hammond,    104   Ala.  So.  935:    Ft.  Wayne   &c.   R.    Co.   v. 

191,  15  So.  935.  Sherry,  126  Ind.  334,  25  N.  E.  898. 

s"  See  Grafton  v.  Moir,  130  N.  ^'.  10  L.   R.  A.  48.      In   Cedar  Rapids 

465,  29  N.   E.  974,  27  Am.  St.  533:  &c.   Co.  v.   Burlington   &c.   R.   Co.. 

Jones   V.   I'.rie   &c.    R.   Co.,   169    Pa.  120   Iowa   724,  95   N.   W.   195.   it   is 

St.  }>2^?).  2^2  .\tl.  535.  47  \vc\.  St.  916.  said  that  there  is   such  a  prcsumj)- 

'^'  Indianapolis     &c.      R.     Co.     v.  tion    but   that   it   was   overcome   by 

Lewis,  119  Ind.  218.  21    N.   F.  660:  other  facts  in  that  case.     See  also 

lndiana]iolis    &c.     R.    Co.    v.    Rev-  Llendrix  v.  Southern  R.  Co.,  162  N. 

nobis.   116    Ind.  356,   19    X.    1-..    141.  Car.  9.  11  S.   E.    1001. 
See    also     lennison    v.    Walker.     11 


§  1159  RAILROADS  630 

his  land  without  incurring-  a  liabiHty  to  the  adjoining  land- 
owner. Thus,  it  is  held  that  it  may  lease  a  portion  of  the  land 
over  which  its  track  runs,  for  use  as  a  lumber  yard,  and  may 
permit  the  erection  of  necessary  buildings  for  handling  and 
storing  lumber,  where  such  a  use  of  its  land  will  not  interfere 
with  the  transaction  of  its  business  as  a  common  carrier.^'' 

§1159  (938a).  What  estate  is  taken — Continued. — It  has 
been  held  that  a  railroad  company,  without  power  to  acquire  a 
fee  in  its  right  of  way  but  only  an  easement  therein,  will  take  a 
valid  title  to  a  right  of  way  transferred  to  it  under  a  warranty 
deed.  The  transaction,  even  though  ultra  vires  in  a  sense,  is 
regarded  as  valid  until  assailed  in  a  direct  proceeding  brought 
lor  that  purpose  by  the  government.  Private  persons  cannot 
attack  the  title  in  a  collateral  action.^*  Another  decision  is  to 
the  effect  that  a  railroad  company,  taking  possession  of  land  for 
its  right  of  way  under  a  verbal  gift,  and  maintaining  such  pos- 
session for  the  statutory  period,  w'ill  acquire  only  an  easement  in 
such  right  of  way.  and  not  the  fee.^^ 

§  1160  (938b).  Conveyance  of  right  of  way  by  railroad  com- 
panies.— A  railroad  company,  acquiring  title  to  land  for  railroad 
purposes  either  by  purchase  or  condemnation,  and  constructing 
its  railroad  thereon,  has  been  held  to  have  such  an  interest  in 
the  land  that,  without  intending  to  abandon  the  same,  it  may  sell 

8^  Calcasieu   TAimber   Cn.  v.   Har-  does  not   give  the   right   to   perma- 

ris.  11  Tex.   18,  43   Am.  &  Eng.   R.  nently   appropriate   and   cut   timber 

Cas.   570.     See   also   Cleveland   &c.  on  the  land  outside  of  the  right  of 

R.  Co.  V.  Huddleston,  21  Tnd.  App.  way.     Gulf  &c.  R.  Co.  v.  Richards, 

621,  627,  52  N.  E.  1008,  69  Am.  St.  11  Tex.  95,  32  S.  W.  96.     See  also 

385  (citing  text).     The  company  is  Hendler  v.    Lehigh   Valley   R.   Co., 

not   liable   for   the    expense   of   re-  209    Pa.    St.    256,    58    Atl.   486,    103 

moving  a  building  on   the  right  of  Am.  St.   1005. 

way    purchased    by    it.      Delsol    v.  84  Hicks  v.   Smith,   109  Wis.  532. 

Spokane   &c.   R.   Co.,  4   Idaho   456,  85  N.  W.  512.     See  also  Farwell  v. 

40  Pac.  59.     But  a  grant  of  a  right  Wolfe,  96  Wis.    10,  70  N.  W.  289, 

of  way  100  feet  wide,  with  the  right  ^1  L.  R.  A.  138,  65  Am.  St.  22. 

to  use  such  additional  land  as  may  ^s  Capps  v.  Texas  &c.  R.  Co.,  21 

be   necessary   for   the    construction  Tex.  Civ.  .\pp.  85,  50  S.  W.  643. 
and    maintenance    of    the    roadbed. 


631  ACQnSITION    OF   RIGHT   OF   WAY  §  1161 

to  another  railroad  company  for  like  purposes  all  or  part  of  the 
premises  so  acquired.'*"  Thus,  under  an  Alabama  statute  .i,nving 
a  railroad  company  ])()\ver  to  lease  or  purchase  any  part  of  any 
railroad  constructed  by  any  other  corporation,  if  its  line  be  con- 
tinuous or  connecting,  it  has  been  held  that  a  railroad  company 
was  authorized  to  convey  to  a  connecting  railroad  company 
lands  acquired  by  it  for  right  of  way.^"  So,  it  has  been  held  that 
a  railroad  company  may  lease  a  portion  of  its  right  of  way  for 
business  purposes  with  a  view  to  securing  freight.  Such  a  con- 
tract, it  was  held,  is  not  opposed  to  public  policy .^^ 

§  1161  (939).  Conditional  conveyances. — A  railroad  company 
may,  in  general,  accept  a  conveyance  of  land  upon  any  condi- 
tions that  may  lawfully  be  annexed  to  an  ordinary  grant.^*' 
And,  generally  speaking,  it  may  be  said  that  an  agreement  with 
a  railroad  company  for  a  right  of  way  stands  upon  the  same 
footing  as  any  other  contract  for  the  conveyance  of  an  interest 
in  land.-'"   Where  title  is  not  expressly  made  to  depend  upon  the 

86  Garlick  v.  Pittsburg  &c.  R.  ^^  Detroit  v.  C.  H.  Little  R.  Co., 
Co.,  Gl  Ohio  St.  223,  65  N.  E.  896.  146  Mich.  ZIZ,  109  N.  W.  671,  13 
But    corrrpare    State   v.    Grimes,    96       Det.  Leg.  N.  803. 

Nebr.  719.  148  N.  W.  942.  So,  ^9  Hammond  v.  Port  Royal  &c. 
where  a  city  grants  a  right  of  way  R.  Co.,  15  S.  Car.  10.  And  condi- 
in  an  alley  to  a  railroad  company,  tions  may  be  either  conditions 
it  has  been  held  that  the  company  precedent  or  conditions  subse- 
may  transfer  such  right  to  another  quent.  Gray  v.  Chicago  &c.  R. 
company,  though  it  has  never  used  Co.,  189  111.  400.  59  N.  E.  950; 
the  alley  for  railroad  purposes.  Cleveland  &c.  R.  Co.  v.  Coburn, 
Morgan  v.  Des  Moines  U.  R.  Co.,  91  Ind.  557;  Louisville  &c.  R.  Co. 
113  Iowa  561,  85  N.  W.  902.  Even  v.  Power,  119  Ind.  269,  21  N.  E. 
though  such  a  conveyance  should  751;  Hannibal  &c.  R.  Co.  v.  Pro- 
be regarded  as  an  abandonment  it  wein,  163  Mo.  1,  63  S.  W.  500; 
would  only  be  taken  advantage  of  New  York  &c.  R.  Co.  v.  Provi- 
by  the  owner  of  the  fee,  and  can  dence,  16  R.  I.  746,  19  Atl.  759; 
not  avail  a  city  which  claims  the  ]\Ionat  v.  Seattle  &c.  R.  Co.,  16 
land  for  public  purposes  through  a  Wash.  84,  47  Pac.  233. 
dedication  made  by  a  lessee  of  ''o  Ljttlejohn  v.  Chicago  &c.  R. 
the  railroad  company.  Durham  v.  Co..  219  111.  584,  1(^  N.  E.  840.  841; 
Southern  R.  Co.,  121   Fed.  894.  St.  Louis  &c.  R.  Co.  v.  Van  Hoore- 

87  Coyne  v.  Warrior  Southern  R.  beke.  191   III.  633,  61  N.  E.  326. 
Co.,  137  Ala.  553,  34  So.   1004. 


S  ]  -1(11  KAILKOADS 


632 


performance  of  certain  conditions,  stipulations  contained  in  a 
deed  will  usually  be  construed  to  amount  to  covenants  only, 
since  conditions  by  which  title  is  prevented  from  vesting,  or  by 
which  lorfeitures  are  incurred,  are  not  favored  in  law."^  But 
provisos"'-  and  recitals  of  the  consideratit)ns  for  which  the  deed 
was  made"-'  have  been  construed  to  amount  to  im])lied  condi- 
tions, upon  a  l)reach  of  which  the  land  would  revert  to  the 
o-rantors.'"    And  if  it  clearly  ai)i)ears  by  the  form  and  terms  of  a 

91  Georgia     Soutlieni     R.     Co.     v.  veycd   U>  a  raih-oad   company  ui)on 

Reeves,    64    Ga.    492;     Midland     R.  wliich   to  build   its   mad.  "provided 

Co.  v.   I'"islicr,  125    Ind.   19,  24  N.  E.  tlie    same    docs    n(Jt    intcrfcM-e    with 

756,   8    L.    R.    A.   604,   and   note,   21  hnildings    on    the    y;rantnr"s    land," 

Am.   St.    189:   Jefferson ville    &c.    R.  and   it  was   held   that   the   company 

Co.  V.  Barbour,  89  Ind.  375.     Tf  it  took    the    land   subject   to   an   obli- 

be  doubtful    whether  a   clause   in   a  Ration  to  construct  its  road   so  far 

deed   is   a   condition   or   a   covenant  away    from    said    buildin,u:s    as    not 

the   courts   will    incline   against   the  to   endanger  them  or  prevent  their 

condition,    for    a    covenant    is    far  usefulness.       See     also     St.     Louis 

preferable.      Roanoke    Inv.    Co.    v.  Southwestern  R.  Co.  v.  Curtis,  113 

Kansas    City   &c.   R.    Co.,   108   Mo.  .\rk.  92,  167  S.  W.  489:  Stevens  v. 

50.    51    Am.    &    Kng.    R.    Cas.    426,  Galveston    &c.    R.    Co.    (Tex.    Civ. 

433,    quoting-    4    Kent's    Com.    132.  App.),  169  S.  W.  644. 

See    also    Pittsburg    &c.    R.    Co.    v.  93  Indianapolis     &c.     R.     Co.     v. 

Wilson.  34  Ind.  App.  324.  72  N.  E.  Hood,    66    Ind.    580.      In    this    case 

666:    Krueger   v.    St.    Louis    &c.    R.  the   i]ccd  recited   that   it   was   made 

Co.,    185    Mo.    227,    84    S.    W.    808:  ''for    and    in    consideration    of    the 

Gratz  V.   Highland   &c.  R.   Co..   165  permanent    location    and    construc- 

:Mo.  211,   65   S.  W.   223,  225:  2   El-  tion   of  the  depot  of  said  railroad" 

liott   Cont.  §§  1575.  1611.  thereon,    and    the    court    held    that 

92  Taylor  v.   Cedar  Rapids   &c.  R.  upon   the   removal   of  the  depot  In- 

Co.,  25  Iowa  371:  Southard  v.  Cen-  the    railroad,    the    land    reverted    to 

tral  R.  Co.,  26  N.  J.  L.  13.     In  this  the     grantor.      See     also     Seaboard 

latter  case,  the  owner  of  land  con-  Air   Line   R.   Co.   v.   Anniston    Mfg. 

veyed    a   part   thereof   for   the   pur-  Co  .   186  Ala.  264.  65   So.   187.      I'.ut 

poses    of    a    depot    and    passenger  see    contra.    East    Line    R.    Co.    v. 

refreshment    room   by   a   deed   con-  Garrett,  52  Tex.   153:   P.lanchard   v. 

taining   a   proviso   that    if    the   rail-  Detroit  &c.  R.  Co.,  31   Mieli.  43,  18 

road     company    should     erect     and  Am.  Rep    142. 

use    any    other    buildings    within    a  "4  |„  Ajkin  v.  Albany  &c.  R.  Co., 

mile    fr.r    the    same    purposes,    the  26  Barb.   (N.  V.)  289.  the  owner  of 

deed  should  be  avoided.     In   Rath-  a   farm   granted   to  a   railway   eom- 

hone    V.    Tioga    Navigation    Co..    2  pany  a  right  of  way  through   it  by 

\y     &    S.    (V^.)    74.   land    was   con-  a  deed  which  contained,   inter  alia. 


G33  .\C(,Mysi'n()x  of  [{Kiiir  of  way  §  1162 

clause  in  a  dvvd  that  it  is.  in  Ic^al  ftVect,  a  coiulition.  the  fact  tliat 
tlif  p.'irtics  make  use  of  the  word  "ccnenant''  will  not  alter  its 
ie,^"al   character."'' 

§  1162  (940).  Difference  between  conditions  precedent  and 
conditions  subsequent — Effect  of  failure  to  perform  conditions 
precedent. — Where  an  act  is  required  to  l)e  done  before  the  title 
\ests.  it  is  a  condition  ])recedent,'"''  and  the  coni])any  can  assert 
no  rii^hts  under  the  deed  without  showing-  the  performance  of 
the  condition.""  But,  "if  the  act  or  condition  required  do  not  nec- 
essaril}'  precede  the  xesting"  of  the  estate.  Init  may  accom])any  or 
follow  it,  and  if  the  act  may  as  well  be  done  after  as  before  the 
^■esting•  of  the  estate  ;  or,  if  from  the  nature  of  the  act  to  be  ])er- 
lormed,  and  the  time  rec|uired  for  its  performance,  it  is  evidently 
the  intention  of  llie  ])arties  that  the  estate  shall  vest,  and  the 
y:rantee  perform  the  act  after  taking  pc:)ssession,  then  the  condi- 

the    following    clause:      "'I'lie    said  struotion    of    side    tracks    upon    the 

Albany     Nortlicrn     Railroad     is    to  right  of  waj'. 

construct    and    maintain    two    good  '■''■  Blanchard    v.    Detroit    &c.    R. 

farm    crossings."      The    court    inti-  Co.,  31   Mich.  43,   18  Am.   Rep.  142. 

mated    the    opinion    that    tliis    was  .As    to    the    effect    of   a    C(5nveyance 

properly  a  condition,  but,  in  order  of  land  "for  railroad  purposes,"  or 

to  aid  the  grantor,  it  was  construed  the    like,    see    Ritter    v.   Thompson, 

in    that   case   to  amount   to  a   cove-  102  .Ark.  442.  144  S.  W.  910;  United 

nant  only.     Tn  Donisthorpe  v.   h're-  States    &c.    Wood    Co.    v.    Bangor 

mont  &c.   R.  Co.,  30  Nebr.  l42.  27  &c.  R.  Co.,  104  Maine  472,  72  Atl. 

Am.    St.    387.    43    Am.    &    Eng.    R.  190:    Kensington   R.   Co.  v.  Moore, 

Cas.    583.    it    was    held    that    parol  115   Md.  36,  80  .Atl.  614;  American 

evidence   was    admissible   to   annex  Spinning    Co.    v.    Southern    R.    Co.. 

the     condition     that    the     property  81    S.  Car.  482.  62  S.   E.  787;   note 

should    be    used    only    for    the   main  in    ]..   R.   A.   1918B,  695  et  seq.  "^ 

line   and    not    for   side   tracks,    to   a  '""' Nicoll  v.  New  York  &c.  R.  Co., 

deed     which     expressly     stipulated  12   X.   ^'.   121;    Rome   &c.   R.   Co.  v. 

that    the    grantor   thereby    released  Gleason,  42  App.  Div.  530,  59  N.  ^^ 

the  grantee,  its  successors  and   as-  S.   647. 

signs,  from  all  costs,  expenses  and  ""  Crosbie  v.  Chicago  &c.  R.  Co., 

damages  sustained  by  the  construe-  62  Iowa  189,  17  N.  W.  481,  14  .Am. 

tion.   building   and   use   of  the   rail-  &  Eng.  R.  Cas.  463.     See  also  Cen- 

road.      .And    the    grantor    was    held  tral   T.   R.   Co.  v.   McMains,  58  Tnd. 

entitled    to    damages    for    the    con-  Apj).   132.   107   X.   E.  88. 


^^  1162 


KAILROADS 


634 


tioii  is  sul)scquent.'"'^  Tbe  same  words  have  1-)een  construed  dif- 
ferenth-.  and  the  ([uestion  whether  a  condition,  precedent  or 
sul)seciuent,  is  created,  is  always  one  of  intention.''''  The  dis- 
tinction between  conditions  precedent  and  conditions  subse- 
quent, while  difficult  to  define,  is  very  important,  since  a  condi- 
tion precedent  must  be  fulfilled  before  the  title  vests,  and  in  case 
it  be  impossible  or  unlawful,  or  the  _^rantee  neis^lect  to  perform, 
the  title  remains  with  the  i^'rantor.'  But  in  case  of  a  grant  ujxm 
condition  subsequent  the  title  vests  at  once,  and  in  case  an  il- 
leg'al  condition  is  imposed  the  condition  is  treated  as  a  nullity 
and  the  estate  is  held  to  be  absolute.'-  Thus,  where  land  is  deeded 
to  a  railroad  company  upon  condition  that  it  shall  locate  its  road 
upon  a  certain  route,  it  has  been  held  that  the  company  acquires 
no  rig'hts  under  the  deed  until  the  route  is  located  in  substantial 
compliance  Avith  the  condition.'  So,  where  land  is  conveyed  up- 
on condition  that  the  railroad  is  to  be  built  by  a  certain  date,  it 
has  been  held  that  a  failure  to  comply  with  the  condition  will 


98  Underhill  v.  Saratoga  R.  Co., 
20  Barb.  (N.  Y.)  456;  Parmelee  v. 
Oswego  &c.  R.  Co..  6  N.  Y.  74. 
See  also  Bright  v.  Louisville  &c. 
R.  Co..  27  Ky.  L.  1052,  87  S.  W. 
780.  For  rule  for  determining 
whether  condition  is  precedent  or 
subsequent,  see  Rannals  v.  Rowe, 
145  Fed.  296,  and  for  suggested 
tests  see  note  in  102  Am.  St.  Z66, 
et  seq. 

99Finlay  v.  King.  3  Ret.  (U.  S.) 
346.  374,  7  L.  ed.  711.  per  Marshall, 
Ch.  J.;  Rannels  \.  Rowe,  145  Fed. 
296;  Parmelee  v.  Oswego  &c.  R. 
Co.,  6  N.  Y.  74;  Hotham  v.  East 
India  Co.,  1  T.  R.  638. 

1  Vanhorne  v.  Dorrance.  2  Dall. 
(U.  S.)  304.  1  L.  ed.  391;  Taylor 
v.  Mason,  9  Wheat.  (U.  S.)  325. 
6  L.  ed.  101;  Martin  v.  Ballon.  13 
Barb.  CN.  Y.)  119;  Bertie  v.  Falk- 
land, 2  Freem.  222;  Mizell  v.  Bur- 
nett, 4  Jones  L.  249. 


2  Bertie  v.  Falkland,  2  Freem. 
220;  Story's  Eq.  Juris..  14  ed. 
§  1720;  4  Elliott  Cont.  §  3876;  Co. 
Litt.  206,  a  and  b;  Co.  Litt.  217a; 
2  Bl.  Com.  156,  157.  Indianapolis 
&c.  R.  Co.  v.  Hood,  66  Ind.  580. 
See  also  IMorrill  v.  Wabash  &c.  R. 
Co..  96  Mo.  174.  9  S.  W.  657;  Gratz 
v.  Highland  &c.  R.  Co.,  165  Mo. 
211,  65  S.  W\  223;  Cleveland  &c. 
R.  Co.  V.  Coburn,  91  Ind.  557.  It 
does  not,  ordinarily,  produce  a  re- 
version of  the  title,  without  some 
proper  step  being  taken  to  con- 
summate a  forfeiture.  Rannels  v. 
Rowe,   145   Fed.  296. 

3  Crosbie  v.  Chicago  &c.  R.  Co., 
62  Iowa  189.  17  N.  W.  481;  Detroit 
&c.  R.  Co.  v.  Forbes.  30  Mich.  165. 
See  also  Littlejohn  v.  Chicago  &c. 
R.  Co.,  219  111.  584,  76  N.  E.  840 
Clicense  also  given  to  take  posses- 
sion). 


635 


ACQUISITION   OF  RIGHT   OP    WAY 


§1163 


depri\e  the  company  of  the  right  to  locate  thereon  under  the 
deed/  After  performance  on  the  part  of  the  grantee,  it  is  entitled 
to  the  proi)erty  in  the  same  manner  that  it  would  be  after  pay- 
ment in  case  of  an  ordinary  contract  of  purchase.^ 

§  1163  (941).  Conditions  subsequent — What  is  sufficient  per- 
formance— Effect  of  failure  to  perform. — Conveyances  of  land  to 
lailroad  companies  are  very  frequently  made  upon  conditions 
subsecjuent.  as  that  the  property  shall  be  used  for  railroad  pur- 
poses,'' that  a  depot  shall  be  permanently  located  thereon/  that 


•»  Peterson  v.  Atlantic  &c.  R.  Co., 
120  Ga.  967,  48  S.  E.  372. 

5  Chicago  &c.  R.  Co.  v.  Boyd,  118 
111.  73.  7  X.  E.  487;  Borders  v. 
Murphy.  7S  HI.  81. 

6  Boone  V.  Clark,  129  111.  466.  21 
N.  E.  850,  5  L.  R.  A.  276,  and  note. 
A  conve\'ance  to  a  railroad  com- 
pany of  the  right  of  waj'  for  its 
road,  the  consideration  for  which 
is  shown  to  be  the  construction 
and  permanent  maintenance  of  the 
road  upon  the  line  so  granted,  and 
the  erection  and  maintenance  of 
its  depot  upon  adjoining  lands,  is 
a  condition  subsequent,  and  if  such 
depot  and  tracks  be  afterward 
abandoned,  it  is  a  breach  of  the 
condition,  which  defeats  the  grant. 
Cleveland  &c.  R.  Co.  v.  Coburn, 
91  Ind.  557,  17  Am.  &  Eng.  R.  Cas. 
37.  Where  a  grant  was  of  land  to 
be  used  for  the  raceway  of  a  mill, 
it  was  held  to  be  no  breach  of  the 
condition  that  it  was  also  used  for 
a  towpath,  or  that  a  building  en- 
croached upon  it,  so  long  as  it  con- 
tinued to  be  used  as  a  racewa}'. 
McKehvaj-  v.  Seymour,  29  N.  J.  L. 
321.  See  cases  in  next  note.  The 
limitation  that  the  estate  is  to  ex- 
ist only  so  long  as  the  property  is 
used  for  a  specified  purpose  is  dis- 


tinguished from  the  ordinary  con- 
dition subsequent,  inasmuch  as  it 
marks  the  limit  or  boundary  be- 
yond which  the  estate  conveyed 
can  not  continue  to  exist.  Mayor 
ttc.  Macon  v.  East  Tennessee  &c. 
R.  Co.,  82  Ga.  501,  9  S.  E.  17,  40 
Am.    &   Eng.   R.    Cas.   462. 

■  Indianapolis  &c.  R.  Co.  v.  Hood, 
66  Ind.  580;  Jefifersonville  &c.  R. 
Co.  V.  Barbour,  89  Ind.  375:  Tay- 
lor V.  Cedar  Rapids  &c.  R.  Co.,  25 
Iowa  371;  Close  v.  Burlington  &c. 
R.  Co.,  64  Iowa  149.  19  N.  W.  886, 
17  Am.  &  Eng.  R.  Cas.  33;  Brown 
V.  Chicago  &c.  R.  Co.  (Iowa).  82 
N.  W.  1003;  Vicksburg  &c.  R.  Co. 
V.  Ragsdale.  54  Miss.  200;  New 
York  &c.  R.  Co.  v.  Stanley,  34  N. 
J.  Eq.  55;  Horner  v.  Chicago  &c. 
R.  Co.,  38  Wis.  165.  See  note  38 
Am.  &  Eng.  R.  Cas.  711:  Jessup 
v.  Grand  Trunk  R.  Co.,  28  Grant 
Ch.  (Up.  Can.)  583.  See  also  La- 
tham V.  Illinois  Cent.  R.  Co.,  253 
III.  93,  97  X.  E.  254:  Lexington 
&c.  R.  Co.  V.  Moore.  140  Ky.  518. 
131  S.  W.  257:  ^laxwell  v.  Missis- 
sippi &c.  R.  Co.,  95  Miss.  466.  48 
So.  610:  Bridgess  v.  Beaman.  159 
X.  Car.  521,  75  S.  E.  798.  But  com- 
pare Killgore  v.  Cobell  County,  80 
W.   Va.  283,  92   S.    F.   562:    Shreve 


oll6o                                                          RAILROADS  G36 

the  railroad  shall  be  constrnctcd  across  the  g'rantor's  land  upon 
a  particular  route. ^  fjr  that  the  conij)any  maintain  crossings  and 
cattle-guards,-'  or  build  a  dam  or  embankment/"  or  keep  open 
certain  ]:)ortions  of  the  land  conveyed  as  a  public  street, ^^  or  keep 
up  a  certain  system  of  drainage,^"  or  furnish  the  grantor  and  his 

V.  Norfolk  &c.  R.  Co..  109  Va.  706.  »  Cleveland  &c.  R.  Co.  v.  Co- 
64  S.  E.  972,  2i  L.  R.  A.  (X.  S.)  burn.  91  Ind.  557:  Douglass  v.  New 
771.  Contracts  for  the  location  of  York  &c.  K.  Co..  Clarke  Ch.  (N. 
a  depot  at  a  certain  point  are  gen-  Y.)  174.  A  condition  in  a  deed  to 
erally  sustained  where  the  contract  a  railroad  company  providing  that 
does  not  prohibit  the  location  of  the  same  shall  be  void  unless  the 
depots  at  other  points,  and  the  railroad  shall  be  built  upf)n  a  par- 
agreement  is  fairK'  made -for  a  val-  ticular  route,  and  one  of  its  sta- 
uable  consideration.  Louisville  &c.  tions  located  at  a  particular  point. 
R.  Co.  V.  Sumner,  106  Ind.  55,  5  is  not  void  as  being  opposed  to 
N.  E.  404,  55  Am.  Rep.  719;  Mc-  public  policy.  AlcClure  v.  Missouri 
Clure  v.  ^Missouri  River  &c.  R.  Co.,  &c.  R.  Co..  9  Kans.  ?>7?).  See  Chi- 
9  Kans.  ?>72,\  Cedar  Rapids  &c.  R.  cago  &c.  R.  Co.  v.  Estes,  71  Towa 
Co.  V.  SpafTord,  41  Iowa  292:  Kan-  60,3.  ?,i  N.  W.  124,  30  Am.  &  Eng. 
sas  Pac.  R.  Co.  v.  floi)kins,  18  R.  Cas.  276.  as  to  what  constitutes 
Kans.  494;  \'icksburg  &c.  R.  Co.  a  contract  upon  such  a  condition. 
V.  Ragsdale,  54  :\Iiss.  200:  Kinealy  "Dayton  v.  Lewton,  20  Ohio  St. 
V.  St.  Louis  &c.  R.  Co..  69  Mo.  401.  55  Am.  Dec.  464.  Where  the 
658:  }iIissouri  Pac.  R.  Co.  v.  Ty-  maintenance  of  fences  between  the 
gard,  84  Mo.  263,  54  Am.  Rep.  97:  railroad  right  of  way  and  the  ad- 
Courier  v.  Concord  R.  Co.,  48  N.  joining  property  is  expressly  made 
H.  321;  Cuinberland  Valley  R.  Co.  a  condition  of  holding  title  to  the 
V.  Baab,  9  Watts  (Pa.)  458,  2)6  Am.  land,  a  failure  to  maintain  the 
Dec.  132;  Texas  &c.  R.  Co.  v.  Rob-  fences  will  defeat  the  title.  Emer- 
ards,  60  Tex.  545.  48  \m.  Rep.  268.  son  v.  Simpson.  43  N.  IT.  475,  80 
But  some  courts  have  held  tliat  .\m.  Dec.  184:  Hartung  v.  Witte. 
an  agreement  by  which  a  railroad  59  Wis.  285.  18  N.  W.  175. 
company  undertakes  to  locate  and  i"  Underbill  v.  Saratoga  &c.  R. 
maintain  a  station  at  a  particular  Co.,  20  Barb.  (N.  Y.)  455. 
l)oint  is  void,  as  being  contrarj^  to  ^^  Such  a  condition  is  not  void 
the  public  policy  which  demands  as  imposing  upon  the  company  a 
that  stations  shall  be  located  with  duty  or  trust  inconsistent  with  its 
a  view  to  the  best  interests  of  the  business  and  foreign  to  the  objects 
l)ul)lic  and  of  the  stockholders,  and  for  which  it  was  formed.  Tink- 
can  not  be  hampered  l)y  private  ham  v.  Erie  R.  Co..  53  Barb.  (N. 
contracts.      .Mobile    &c.     R.    Co.    v.  Y.^   393. 

People,    132   111.  559,  24  N.   E.  643.  12  Hammond    v.    Port    Royal    &c. 

22   Am.    St.   556:   Pacific    R.    Co.    v.  R.    Co..    15    S.    Car.    10.    11    Am.    & 

Seely.    45    Mo.    212.    100    Am.    Dec.  Eng.    R.   Cas.  352. 
369. 


687  ACQUISITION   OP   KKillT   OF    WAY  §  1164 

famih'  annual  ]>assc's  durinj^- their  li\cs.''  The  performance  of  a 
condition  subsequent  ma\  he  excused  when  its  performance  l)e- 
comes  impossible  by  the  act  of  God/*  or  the  company  is  pre- 
vented by  the  grantor  from  performing  it.^^  Performance  is  also 
unnecessary  where  the  conditi(Mi  is  opposed  to  positive  law  or 
]>ublic  ])olicy.  as  in  case  the  conveyance  is  made  upon  condition 
that  no  stations  shall  be  established  within  a  certain  distance  of 
one  to  be  located  u])on  the  land  conveyed.^'' 

§  1164  (942).  Remedies  of  grantor  for  failure  of  company  to 
perform  conditions  subsequent. —  In  case  of  a  failure  un  the  ])art 
of  the  grantee  to  comply  with  a  condition  subsequent  in  the  deed 
the  grantor  may  usually  re-enter  and  maintain  ejectment  to  re- 

i-'  Riuldick    V.    St.    Louis    &c.    R.  legislation,    see    also    and    compare 

Co..    lU)   M,,.  25,  22   S.  VV.  499.  38  Louisville    &c.    R.    Co.    v.    Crowe. 

.\m.    St.    570,    57    Am.    &    Eur.    R.  156    Ky.  27,   160  S.   W.   759,   49   L. 

Cas.  290.     In  this  case  it  was  held  R.    A.    (X.    S.)    848.    with    Dorr    v. 

that    the    railroad    company's    sue-  Chesapeake   &c.   R.  Co..  78  W.   Va. 

cesser    to,^k   subject   to   the    condi-  150,  88  S.  E.  666,   L.   R.  A.   1916E, 

tion  annexed  to  its   deed,  and  that,  622. 

upon  its  failure  to  furnish  the  i*  Stuyvesant  v.  Mayor  of  Xew 
passes,  the  land-owner  could  main-  York.  11  Paige  (N.  Y.)  414. 
tain  an  action  to  recover  the  land.  ^-^  Jones  v.  Chesapeake  &c,  R. 
But  see  Dickey  v.  Kansas  Ctiy  &c.  Co.,  14  W.  Va.  514. 
R.  Co.,  122  Mo.  223,  26  S.  W.  685.  i^  St.  Louis  &c.  R.  Co.  v.  Matli- 
and  post,  §  1168.  See  also  for  other  ers.  71  111.  592.  22  Am.  Rep.  122. 
conditions  subsequent,  Rannels  v.  104  111.  257:  Williamson  v.  Chicago 
Rowe.  145  Fed.  296:  Schlesinger  &c.  R.  Co..  53  Iowa  126.  4  N.  W. 
V.  Kansas  City  &c.  R.  Co..  152  U,  870.  36  Am.  Rep.  206  and  note: 
S.  444.  14  Sup.  Ct.  647.  38  L.  ed  St.  Joseph  &c.  R.  Co.  v.  Ryan.  11 
507:  Nic.ll  V.  New  York  &c.  R.  Kans.  602.  15  Am.  Rep.  357:  Holla- 
Cn..  12  N.  Y.  121.  Rut  the  inter-  day  v.  Patterson.  5  Ore.  177.  In 
state  commerce  act  and  recent  stat-  McClain  v.  Chicago  i^c.  R.  Co..  90 
utes  may  make  such  an  agreemen'  Iowa  646.  57  N.  W.  594.  it  was  held 
illegal.  Louisville  &c.  R.  Co.  '.-.  that  the  provisions  of  the  code 
Mottley.  219  U.  S.  467.  31  Sup.  Ct  declaring  that  eight  years'  non- 
265,  55  L.  od.  297.  34  1..  R.  .\.  (  K.  user  nf  a  railroad  right  of  way 
S.)  671:  2  Elliott  Cont.  §  686:  4  shall  work  a  reversion  does  not 
Elliott  Cont.  §  3326.  .-Xs  to  the  forbid  forfeiture  for  abandonment 
rights  and  remedies  where  the  by  non-user  in  accordance  with 
agreement  to  give  pas-^es  rende'\'i  the  conditions  of  a  deed, 
impossible    because    of    subsc(|ue.u 


§1164 


RAILROADS 


638 


cover  the  pn)])erty,'"  or  he  may  waive  the  forfeiture,  and  sue  for 
damages/*  or,  in  some  cases,  he  ma}'  bring"  a  ImII  lor  specihc 
performance  l)y  the  railroad  company  of  its  impHed  agreement 
to  perform  the  conditions.^''  A  waiver  by  the  grantor  of  a  breach 
of  the  conditions  in  a  deed  relieves  the  estate  from  the  forfeiture, 
even  though  it  does  not  affect  the  grantor's  right  to  have  the 
condition  ])erformed.  Thus,  where  a  grant  to  a  railroad  company 
of  land  was  upon  condition  that  the  road  should  be  completed  by 
a  certain  time,  and  the  company  failed  to  complete  it  before  the 


1"  Indianapolis  &c.  R.  Co.  v. 
Hood,  66  Ind.  580;  See  also  and 
compare  Gratz  v.  Highland  &c.  R. 
Co..  165  Aro.  211.  65  S.  W.  223; 
McClellan  v.  St.  Louis  &c.  R.  Co.. 
103  Mo.  295,  15  S.  W.  546.  In  Close 
V.  Burlington  &c.  R.  Co..  64  Iowa 
149.  19  N.  W.  886,  it  was  held  that 
a  railroad  company  did  not,  by 
accepting  a  conveyance  of  land  in 
consideration  of  one  dollar  "and 
the  permanent  location  of  a  depot 
on  the  grounds  conveyed"  render 
itself  liable  in  damages  for  a  fail- 
ure to  maintain  the  depot;  but  that 
this  provision  was  a  condition  sub- 
sequent, for  a  breach  of  which  the 
estate  could  be  forfeited.  But  see 
Hubbard  v.  Kansas  Citj^  &c.  R. 
Co.,  63  Mo.  68;  Bright  v.  Louis- 
ville &c.  R.  Co.,  27  Ky.  L.  1052,  87 
S.  W.  780.  The  grantor  can  only 
enter  for  breach  of  an  entire  con- 
dition, and  such  an  entry  affects 
the  entire  tract  conveyed.  And 
where  a  grantor  parts  with  his 
right  of  re-entry  as  to  part  of  a 
tract,  the  condition  is  destroyed. 
Tinkham  v.  Erie  R.  Co..  53  P)arb. 
(N.  Y.)  393. 

isjoliet  &c.  R.  Co.  v.  Jones.  20 
111.  221;  Kankakee  &c.  R.  Co.  v. 
Fitzgerald,  17  111.  .'\pp.  525;  Rush 
V.   Burlington   &c.  R.  Co.,  57  Iowa 


201.  10  N.  W.  628;  Gray  v.  Bur- 
lington &c.  R.  Co.,  n  Iowa  119; 
Baker  v.  Chicago  &c.  R.  Co.,  57 
Mo.  265.  See  Hubbard  v.  Kansas 
City  &c.  R.  Co..  63  Mo.  68;  Thorn- 
ton V.  Sheffield  &c.  R.  Co.,  84  Ala. 
109.  4  So.  197.  5  Am.  St.  2>il .  In 
Jones  V.  St.  Louis  &c.  R.  Co..  79 
Mo.  92,  the  court  held  that  the 
I)ropcr  remedy  of  a  grantor  of 
land  u]Kjn  condition  that  it  be  used 
for  depot  purposes  alone,  was  to 
re-enter  for  condition  broken  in 
the  event  of  its  being  devoted  to 
other  purposes,  and  not  by  suit  to 
set  aside  the  deed. 

1^  Gray  v.  Burlington  &c.  R.  Co., 
}il  Iowa  119;  Hubbard  v.  Kansas 
City  &c.  R.  Co..  63  Mo.  68;  Aikin 
V.  Albany  &c.  R.  Co.,  26  Barb. 
(N.  Y.)  289.  But  see  Hoard  v. 
Chesapeake  &c.  R.  Co.,  123  U.  S. 
222.  8  Sup.  Ct.  74,  31  L.  ed.  130; 
Louisville  &c.  R.  Co.  v.  Mottley. 
219  U.  S.  467,  31  Sup.  Ct.  265,  55 
L.  ed.  297,  34  L.  R.  A.  (N.  S.)  671 
(specific  performance  refused 
where  agreement  to  issue  annual 
pass  for  life  was  invalid  under  in- 
terstate commerce  act);  Tyler  v. 
St.  Louis  &c.  R.  Co.  (Tex.  Civ. 
App.).  87  S.  W.  238  (reversed  in 
91   S.  W.  1). 


639  ACQIISITIOX    OF    IMOKT   OP   WAY  §  1164 

time  expired;  and  after  that,  the  .grantor,  knowiiii^'  the  fact,  suf- 
fered the  company  to  go  on  and  incur  expenses  in  constructing 
their  road,  and  made  no  objection,  it  was  held  to  he  a  waiver  of 
the  condition  and  forfeiture.-"  A  breach  of  a  condition  sul)se- 
(juent  can  nnl\'  be  taken  ad\antaii'e  of  l^y  the  ti^rantor  or  his 
heirs.-'  and  a  person  to  wIkiui  he  has  conve\-ed  liis  interests 
either  l)efore  or  after  the  lireach  acquires  no  ri.ijhts  as  against 
the  compam'.--  "Phe  general  rule  is  that  a  forfeiture  for  this  cause 
can  only  be  enforced  l)y  an  actual  entry-''  with  intent  to  defeat 
the  estate.-*  or  at  least  by  some  act  equivalent  thereto.  But  in 
an  Iowa  case,  where  a  right  of  way  was  deeded  to  a  railroad 
company  upon  condition  that  the  company's  depot  should  be 
located  near  a  certain  point,  and  the  condition  was  not  complied 
with,  it  was  held  that  the  breach  of  this  condition  forfeited  the 
title,  and  that,  the  estate  being  less  than  a  freehold,  no  formal 
act  of  entry  was  necessary  to  enable  the  land-owner  to  proceed 
under  the   statute   for  an  assessment   of  his   damages.-''    Other 

2«  Baker   v.    Chicago    &c.    R.    Co..  141 ;  Nicoll  v.  New  York  &c.  R.  Co., 

57   Mo.  265:  Ludlow  v.   New  York  12  N.  Y.  121;  Underbill  v.  Saratoga 

&c.  R.  Co.,  12  Barb.  (N.  Y.)  440.  &c.   R.   Co..  20  Barb.    (N.  Y.)   455; 

-1  This    rule    has    been    changed  4   Kent's   Com.   129.     See  also  Gol- 

by    statute    in    some    of   the    states  conda   Northern  Ry.  v.  Gulf  Lines 

in     favor     of     devisees     and     some  &c.  R..  265  111.  194.  106  N.  E.  818, 

others.     Southard  v.  Central  R.  Co.,  Ann.   Cas.   1916A.  833. 

26  N.  J.  L.  13:  McKissick  v.  Pickle.  ^-  Hall    v.    Pickering.    40    .Maine 

16  Pa.   St.   140:   Hayden  v.   Stough-  548:    Fonda    v.   Sage,   46   Barb.    ( N. 

ton.  5  Pick.  (Mass.)  528;  .\ustin  v.  Y.)  109.    See  also  Golconda  North- 

Cambridgeport     Parish,     21      Pick.  ern   Ry.   Co.  v.   Gulf   Lines   &c.   R., 

(Mass.)    215.      In    Rice    v.    Boston  265    111.    194,    106   N.    E.   818.    Ann. 

&c.   R.   Co..   12   Allen    (Mass.)    141.  Cas.   1916A.  833. 

it  is  held  that  a  son  of  the  grantor.  -■*  Ruddick    v.    St.    Louis    &c.    R. 

to  wh.mi   he   conveyed  the  adjoin-  Co..   116  Mo.  25.  22  S.  W.  499.  38 

ing    property    by    deed,    could    not  .■\m.  St.  570.  57  Am.  &  Eng.  R.  Cas. 

take   advantage  of  the   breach  of  a  290;    Rollins   v.   Riley.   44   X.    H.   9. 

condition,     since     he     claimed     by  As    to    whether    the    right    can    be 

grant  and  not  by  descent.     Hooper  assigned,  see  Bouvier  v.  Baltimore 

V.  Cummings.  45  Maine  359.  &c.  R.  Co..  67  N.  J.  L.  281.  51  Atl. 

22  Paul     V.     Connersville    &c.     R.  781.  60  T,.   R.   A.  750  and   note. 

Co..   51    Ind.   527;   Hooper   v.   Cum-  2-' Taylor  v.  Cedar  Rapids  &c.  R. 

mings,  45   Maine  359:  Rice  v.   Bos-  Co..  25  Iowa  371. 
ton    &c.    R.    Co.,    12   Allen    (^fass.) 


§  1165  KAILKOADS  640 

strong"  courts  take  a  like  stand,  and  hokl  that  it  is  not  necessary 
that  the  grantor  demand  compliance  with  the  conditions  in  the 
deed  before  liringing  suit  for  a  decree  of  forfeiture  of  the  right 
I'f  way.  In  this  view  the  commencement  of  the  action  stands  in 
hen  (if  entr}-  and  demand  of  possession.-*' 

§  1165  (943),  Construction  of  conditions  subsequent — Com- 
pliance with  conditions. — Conditions  subsequent  are  not  favored 
in  law.-'  l)ut  are  strictly  construed,  and  a  substantial  compliance 
with  the  conditions  is  generally  held  sufficient.'-*  Thus,  it  has 
been  held  that  a  railroad  company  will  hold  a  right  of  way  con- 
veyed to  it  for  the  location,  construction  and  maintenance  of  its 
road,  and  conditioned  upon  the  continued  maintenance  and 
operation  thereof,  provided  it  builds  and  operates  the  road  across 
the  land  conveyed  :  and  the  fact  that  it  does  not  build  a  road  the 
full  extent  of  its  charter  route  will  not  work  a  forfeiture.-^  A 
conveyance  recited  that  the  ground  was  deeded  "expressly  for 
the  use  and  purj'jose  of  dejiot  grounds"  for  a  railroad  com]:)any, 

2«  Lyman  v.  Suburban  R.  Co..  190  acre  tract  of  land  whicli  touclied 
111.  320.  60  X.  E.  515.  52  L.  R.  A.  the  corner  .)f  a  designated  field 
645;  Cowell  v.  Colorado  Sijrings  was  held  to  be  a  substantial  corn- 
Co..  100  U.  S.  55.  25  L.  ed.  547,  cit-  pliancc  with  a  condition  rcciuiring 
ing  Austin  v.  Cambridgeport.  21  the  depot  to  be  located  on  a  five- 
Pick.  (Mas.-.l  215:  Cornelius  v.  acre  tract  adjoining  that  field. 
Ivins.  2  Dutch.  (X.  J.  L.)  376;  Fitzgerald  v.  Britt,  43  I-.wa  498. 
Ruch  V.  Rock  Island.  97  U.  S.  693.  I5uilding  a  depot  a  quarter  of  a 
24  L.  ed.  1101.  See  also  .Maison  mile  from  the  edge  of  the  town 
St.  Joseph  (In  Sault  an  Recollet  v.  i)lat,  and  stopping  trains  there,  was 
Montreal  Park  &c.  R.  Co.,  Rap.  held  a  compliance  with  a  condition 
Jud.  Que.  19  C.  S.  484.  that  a  certain  town  should  be  made 

-'  Jeffersonville     &c.     R.     Co.     v.  a   station  on   the   road.     Jenkins   v. 

Barbour.  89   Tnd.  375;    Ellis   v.   El-  Burlington  &c.  R.  Co..  29  Iowa  255; 

khart   Car  \A'orks  Co..  97  Tnd.  247;  Meader    v.     Lowry.    45     Iowa    684. 

Smnner  v.   Darnell.   128   Ind.   38.  27  And  sec  Cedar  Falls  &c.  R.   Co.  v. 

X.  I-:.  162,  13  1..  R.  A.  173  and  note;  Rich.    2>i    Iowa    113;    Courtright    v. 

1-fammond    v.    Port    Royal    &c.    R.  Stickler.   2>7   Towa   382. 

Co.,  15  S.  Car.  10.  11  Am.   &  Eng.  -''.Morrill  v.  Wabash  &c.  R.  Co.. 

R.  Cas.  352,  369.  96  Mo.  174,  9  S.  W.  657,  36  Am.  & 

-^  Voris  V.   Renshaw,  49    111.  425;  Eng.  R.  Cas.  425.     See  also  Union 

TToyt    V.    Kimball.    49    X.    H.    ?>22.  Stockyards     Co.    v.    Xashville     &c. 

Locating    the    depot    upon    a    five-  Co..   140   ]''ed.   701. 


(141  AC'C^T'ISITIOX   OF   RIGHT   OK    WAY  §  1165 

,'Ui(l  prov  idccl  that  in  case  the  grantee  "shrill  fail  to  erect  bnild- 
ings  and  occupy  said  ground  for  the  use  and  purpose  above  men- 
tioned," it  should  re\ert  to  the  donor.  The  buildings  were 
erected  and  the  ground  used  for  depot  purposes  for  thirty-three 
years,  after  whicli  the  depot  was  removed  to  another  location, 
and  the  tract  in  question  ceased  to  be  used  for  such  purposes. 
The  court  held  that  the  condition  had  been  full}-  performed,  and 
that  the  title  of  the  railroad  company  was  absolute.''"  But  a  mere 
colorable  compliance  with  a  condition  that  the  road  over  a  cer- 
tain tract  shall  be  used  and  operated  as  a  railway,  by  using  it  for 
the  storage  of  cars,  while  trains  are  run  over  another  route,  has 
been  held  insufficient  to  prevent  a  forfeiture. ^^  It  has  been  held 
that  a  city  is  without  power  to  release  a  railroad  company  from 
the  performance  of  these  conditions  b}'  ordinance,  as  this  would 
amount  to  the  impairment  of  a  contract.^-  "In  determining 
whether  a  condition  subsequent  in  a  deed  has  been  broken  or  not, 
construction  is  required  in  nearly  every  case.  But  littl-e  assistance 
can  be  had  from  examining  other  cases,  except  to  ascertain  rules 
for  interpretation.  Each  case  differs  so  widely  from  all  others 
that  even  rules  of  construction  cannot  be  wholly  depended  upon. 
The  application  of  good  sense  and  sound  equity  are  as  much  to  be 
relied  upon  as  subtle  and  artificial  rules  of  construction.     The 

•*o  Jeffersonville  &c.  R.  Co.  v.  lin,  to  the  effect  that  the  words 
Barbour,  89  Ind.  375.  The  court  "used  and  operated"  in  the  deed 
said:  "Tlie  condition  of  the  grant  under  consideration  referred  to  the 
in  the  present  case  was  in  effect  railroad  as  a  whole.  And  that  the 
that  the  p;rantec  should  locate  and  fact  that  the  track  laid  upon  this 
occupy  the  lots  as  depot  grounds.  particular  tract  was  used  for 
No  time  was  mentioned,  and  the  switching  purposes,  while  the  cars 
language  does  not,  strictly  con-  were  run  over  a  parallel  track, 
strued,  mean  perpetuity.  We  think  passing  through  the  stations  near- 
thirty  years'  occupancy  of  the  lots  est  to  the  plaintiff's  farm,  was  not 
as  depot  grounds  was  a  snbstan-  a  breach  of  the  condition.  See  also 
tial  compliance  with  the  condi-  in  support  of  text  Lyman  v.  Sub- 
tion."  urban  R.  Co.,  190  III.  320.  60  N.  E. 

3^Hickox  V.  Chicago  &c.  R.  Co.,  515.  52  L.  R.  A.  645. 
78    :\Iich.   615.   43   .^m.    &    Eng.    R.  ^2  i.yman  v.  Suburban  R.  Co..  190 

Cas.  613.     But  see  dissenting  opin-  111.  320,  60  N.  E.  515.  52  L.  R.  A. 

ion  of  Judges  Campbell  and  Champ-  645. 


1166 


RAILROADS 


642 


point,  of  course,  to  be  arrived  at  in  every  case,  is  to  ascertain 
the  intention  of  the  parties. "^^ 

§  1166  (944).  When  equity  will  interfere  in  case  of  a  breach 
of  conditions  subsequent. — Equity  ^vill  not.  as  a  general  rule,  lend 
its  aid  to  enforce  a  forfeiture  for  the  breach  of  a  condition  subse- 
quent, but  will  sometimes  cancel  a  deed  as  a  cloud  U])()n  the 
grantor's  title,  where  the  right  to  a  forfeiture  is  clear,  and  there 
is  no  adequate  remedy  at  law.-"**  Even  after  entry  for  condition 
broken  the  railroad  company  has  a  right  to  proceed  under  the 
statute  to  condemn  the  land  it  occupies  for  a  right  of  way.^^ 
And,  in  view  of  the  hardship  attending  the  ejectment  of  a  rail- 
road company  from  any  part  of  its  right  of  way,  equity  will  en- 
join proceedings  to  oust  it  from  land  upon  which  it  has  in  good 
iaith  constructed  its  road,  until  it  can  have  an  opportunity  to 
acquire  title  by  condemnation.^^ 


33  Jeffersonville  &c.  R.  Co.  v.  Bar- 
bour, 89  Ind.  375,  379,  per  Ham- 
mond, J.  It  was  held  under  a  deed 
obligating  the  railroad  company  to 
establish  and  maintain  a  station 
on  the  land  conveyed  that  the  erec- 
tion of  a  small  building  called  a 
"depot"  for  temporary  purposes, 
until  the  grantee  could  build  a  per- 
manent structure,  was  not  a  com- 
pliance with  the  contract;  and 
neither  the  grantee,  nor  a  compa- 
ny which  purchased  its  property 
and  franchises,  having  ever  erected 
a  permanent  structure,  the  purchas- 
er must  respond  in  damages  for 
the  breach  of  contract.  Ecton  v. 
Lexington  &c.  R.  Co.,  22  Ky.  L. 
1133,  59  S.  W.  864.  In  another  case 
a  condition  in  a  deed  of  land  for  a 
railroad  right  of  way  that  the  com- 
pany should  stop  all  its  accommo- 
dation passenger  trains  at  the  point 
thereon  where  its  passenger  de- 
pot was  tlien  located  on   the  prem- 


ises was  held  to  continue  so  long 
as  the  grantee  holds  and  uses  the 
land.  Gray  v.  Chicago  &c.  R.  Co., 
189  111.  400,  59  N.  E.  950. 

34  Memphis  &c.  R.  Co.  v.  Neigh- 
bors, 51  Miss.  412;  Vicksburg  &c. 
R.  Co.  V.  Ragsdale,  54  Miss.  200; 
Stringer  v.  Keokuk  &c.  R.  Co.,  59 
Iowa  277,  13  N.  W.  308.  That  it 
will  not  ordinarily  interfere  to  en- 
force a  forfeiture.  See  also  Brown 
v.  Chicago  &c.  R.  Co.  (Iowa),  82 
N.  W.  1003,  and  other  cases  there 
cited. 

35  New  York  &c.  R.  Co.  v.  Stan- 
ley, 35  N.  J.  Eq.  283,  10  Am.  & 
Eng.  R.  Cas.  345. 

36  South  &c.  R.  Co.  V.  Alabama 
&c.  R.  Co.,  102  Ala.  236,  14  So.  747; 
Harrington  v.  St.  Paul  &c.  R.  Co.. 
17  Minn  215:  New  York  &c  R.  Co. 
V.  Stanley,  35  N.  J.  Eq.  283:  Jones 
v.  Great  Western  R.  Co.,  1  Eng. 
R.  &  Can.  Cas.  684.  See  also  Sil- 
ver   Springs    &c.    R.    Co.    v.    Van 


643 


ACQUISITION  OF  RIGHT  OF  WAY 


§1167 


§  1167  (945).  Convenants  running  with  the  land. — An  impor- 
tant difference  between  conditions  and  covenants  is  in  the  reme- 
dy allowed  for  a  breach  of  them,  and  it  has  been  held  that  words 
which  may  import  either  will  be  construed  as  one  or  the  other, 
according  to  which  construction  is  necessary  that  the  party  for 
whose  benefit  the  provision  is  made  may  have  a  remedy."  The 
breach  of  a  covenant  involves  the  payment  of  damages  only,  and 
because  of  the  hardship  which  usually  attends  the  enforcement 
of  a  forfeiture,  and  the  consequent  aversion  to  forfeitures  on  the 
part  'of  the  courts,^**  stipulations  and  agreements  contained  in 
deeds  are  usually  construed  as  convenants  running  with  the  land 
where  complete  relief  can  be  given  by  a  decree  for  specific  per- 
formance or  an  award  of  damages,  or  where  the  language  of 
the  deed  admits  of  a  doubt  as  to  whether  a  condition  is  intend- 
ed.^^  Thus  stipulations  in  the  deed  that  the  grantee  shall  fence 
its  right  of  way*"  or  construct  farm  crossings,  or  other  conven- 


Ness,  45  Fla.  559,  34  So.  884,  888 
(citing  text).  In  Pittsburgh  &c. 
R.  Co.  V.  Bruce,  102  Pa.  St.  23,  the 
court  said,  that  an  injunction 
might  be  obtained  to  restrain  the 
execution  of  a  judgment  in  eject- 
ment that  had  been  recovered  until 
an  assessment  of  damages  under 
the  statute  could  be  had.  Justice 
v.  Nesquehoning  Valley  R.  Co.,  87 
Pa.  St.  28. 

37  Aikin  v.  Albany  &c.  R.  Co.,  26 
Barb.  (N.  Y.)  289. 

38  See  Sappington  v.  Little  Rock 
&c.  R.  Co.,  Zl  Ark.  23;  Lake  Erie 
&c.  R.  Co.  V.  Lee.  14  Ind.  App.  328, 
41  N  E.  1058;  See  Louisville  &c. 
R.  Co.  v.  Taylor,  96  Ky.  241,  28  S. 
W.  666;  Hornback  v.  Cincinnati 
&c.  R.  Co.,  20  Ohio  St.  81:  Kemble 
v.  Philadelphia  &c.  R.  Co.,  140  Pa. 
St.  14,  21  Atl.  225;  Chicago  &c.  R. 
Co.  v.  Titterington,  84  Tex.  218,  19 
S.  W.  472,  31  Am.  St.  39.  Relief 
from    forfeiture    is    ahvaj-s    proper 


wlien  compensation  in  damages 
can  be  calculated  with  certainty. 
Giles  v.  Austin,  62  N.  Y.  486;  Nel- 
son V.  Carrington,  4  Munf.  (Va.) 
ZZ2,  6  Am.  Dec.  519;  Hill  v.  Bar- 
clay, 16  Ves.  402.  See  Walker  v. 
Wheeler,  2  Conn.  299;  Messer- 
smith  V.  ]\Iessersmith.  22  Mo.  369; 
Voorhis  v.  Murphy,  26  N.  J.  Eq. 
434;  Hagar  v.  Buck,  44  Vt.  285,  8 
Am.  Rep.  368. 

•■'^  Blanchard  v.  Detroit  &c.  R. 
Co.,  31  Mich.  43,  18  Am.  Rep.  142; 
Hornback  v.  Cincinnati  &c.  R.  Co., 
20  Ohio  St.  81.  See  also  Gatz  v. 
Highland  &c.  R.  Co.,  165  Mo.  211, 
65  S.  W.  223,  225;  Union  Stock 
Yards  Co.  v.  Nashville  &c.  Co..  140 
Fed.  70. 

4"  Louisville  &c.  R.  Co.  v.  Power, 
119  Ind.  269.  21  N.  E.  751;  Ken- 
tucky Cent.  R.  Co.  v.  Kennej%  82 
Ky.  154;  New  York  &c.  R.  Co.  v. 
Clarke,  228  Mass.  274.  117  N.  E. 
322     (covenant    running    with    the 


<^  1167  RAILROADS  614 

iences,'*  or  that  it  shall  locate  and  maintain  a  depot  at  a  certain 
point,^-  will  he  construed  as  covenants  unless  the  language 
clearly  makes  them  conditions.  And  the  company  will  become 
bound  to  observe  covenants  contained  in  a  deed  which  it  ac- 
cepts, to  the  same  extent  that  it  would  be  bound  by  the  execu- 
tion of  an  instrument  signed  by  itself.'*"  A  railroad  may  covenant 
to  pave  and  repair  a  street  along  which  its  track  is  laid,**  or  to 
permit  other  railroads,  upon  certain  conditions,  to  use  the  right 

land);   Ilonihack  v.  Cincinnati   &c.  Co..  168  Pa.  St.  64,  31   .\tl.  940. 

R.  Co.,  20  Ohio  St.  81;  Dayton  &c.  -t-^  Gilmer   v.    .Mobile   &c.    R.    Co., 

R.  Co.  V.  Levvton,  20  Ohio  St.  401,  79  Ala.  569.  58  .\m.  Rep.  623;  Geor- 

55  Am.  Dec.  464;  Kelly  v.  Nypano  g^ia    Sd.    R.    Co.    v.    Reeves,   64    Ga. 

R.  Co.,  23  Pa.  Co.  Ct.  177.    But  see  492.    11    Am.    &    Eng.   R.    Cas.   333: 

Railway  v.  Bosworth,  46  Ohio   St.  Dor>ey  v.  St.  Louis  &c.  R.  Co.,  58 

81,  38  Am.   &  Eng.   R.   Cas.  290,  2  Til.  65;   Pitkin   v.   Long   Island   &c. 

L.  R.  A.  199  and  note.     In  Martin  R.  Co.,  2  Barb.  Ch.  (N.  Y.)  221,  47 

v.   New  York  &c.  R.  Co.,  36  N.  J.  Am.  Dec.  320:  Say  re  v.  New  York 

Eq.  109,  the  court  enforced  a  cov-  i<tc.    R.    Co..    3    Duer    (N.    Y.)    54; 

enant    to    fence    which     had     been  Galveston    &c.    R.    Co.    v.    Pfcuffer, 

stricken    out    of    tlie    deed    before  56   Te.x.   66.      Sec   also   Little   Rock 

it  was  signed,  upon  the  promise  of  &c.    R.    Co.    v.    Birnic,    59   Ark.    66, 

the    receiver    of    the    grantee    com-  26   S.   \V.   528.     But  stipulations   of 

pany    tliat    tlic     fences    should    be  this    kind    arc    often    construed    as 

maintained.       Sec     Donisthorpe     v.  conditions    subsequent.      Taylor    v. 

Fremont  &c.  R.  Co..  30  Nebr.   142.  Cedar  Rapids  &c.  R.  Co.,  25  Iowa 

46   N.   W.  240.  27  Am.  St.  387.  43  371;    Blanchard    v.    Detroit    &c.    R. 

Am.  &  Eng.  R.  Cas.  583.  Co..  31  ^lich.  43.  18  Am.  Rep.  142; 

■'^  Congregation  &c.  v.  Texas  Pac.  Horner   v.   Cliicago    &c.    R.   Co.,   38 

R.    Co.,   41    Fed.   564;    Aikin    v.    .^1-  Wis.  165.     Wlicre  a  deed  recites  that 

bany  &c.   R.  Co.,  26  Barb.   fN.  Y.)  it  is  made  '"in  consideration  of  tlie 

289.     See  also  Illinois  Cent.  R.  Co.  sum  of  one  dollar,  and  the  perma- 

V.  Willenborg,  117  111.  203.  7  N.  E.  nent  location  of  a  depot  on  grounds 

698,  57  Am.  Rep.  862;  Hull  v.  Chi-  conveyed."  the  stipulation  is  a  con- 

cago   &c.    R.   Co.,   65   Iowa    713.   22  dition    subsequent    wliicli     imposes 

N.   W.   940;    Elizabethtown    &c.    R.  no    personal    obligation     upon    the 

Co.  V.  Killen,  21   Ky.  L.  122,  50  S.  grantee.     Close  v.   Burlington   &c., 

W.    1108;    Louisville  &c.   R.    Co.   v.  64  Iowa   149,  19  N.  W.  886. 

Durbin,  178  Ky.  363,  198  S.  W.  908  ^^  Georgia    S.    R.    Co.    v.    Reeves, 

(grantor  to  fence  and  company  to  64  Ga.  492. 

provide     suitable     crossings,     cove-  **  Mayor   &c.   New   York   v.   Sec- 

nants   running  with   the   land   anad  ond  Ave.   R.   Co.,   102  N.   Y.   572.   7 

binding     on     remote     grantee     and  N.  E.  905.  55  Am.  Rep.  839. 
railroad):   Hall  v.  Clearfield  &c.  R. 


(i-lf) 


ACQIISI'I'IOX   OF   RIGHT   OV   WAY 


§1167 


of  way  iiranted,*''  or  to  construct  a  switch  upon  the  lands  con- 
vened, and  to  stop  trains  thereat,'*"  or  to  pay  a  rental  for  the  land 
used  for  railroad  purposes."'^  Covenants  such  as  these,  which  are 
connected  with,  or  require  something'  to  be  done  on  or  about  the 
land,  and  Ix'conu'  united  with,  and  form  a  part  of,  the  considera- 
tion for  which  the  land,  or  some  interest  in  it,  is  parted  with,  run 
with  the  land,''^  and  bind  it  in  the  hands  of  any  one  who  claims 
title  through  or  under  the  covenantor,*"  with  notice  of  the  cov- 


^•^Joy  V.  St.  Louis,  138  U.  S.  1 
11  Sup.  Ct.  243,  34  L.  cd.  843.  45 
Am.  &  Eng.  R.  Cas.  655. 

■»•=  Gilmer  v.  Mobile  &c.  R.  Co., 
79  Ala.  569,  58  Am.  Rep.  623.  Pit- 
kin V.  Long  Island  &c.  R.,  2  Barb. 
(N.  Y.)  221,  47  Am.  Dec.  320:  Ly- 
dick  V.  Baltimore  &c.  R.  Co.,  17 
W.  Va.  427,  11  Am.  &  Eng.  R.  Cas. 
336. 

■*'  Hastings  v.  Northeastern  R., 
67  L.  J.  Ch.  590  (1898),  2  Ch.  674. 
78  L.  T.  (N.  S.)  812,  47  Wkly.  Rep. 
59,  63  J.  P.  36,  affirmed  (1899),  68 
L.  J,  Ch.  315  (1899).  1  Ch.  656.  80 
L.  T.   (X.  S.)  217. 

■*s  St.  Louis  &c.  Co.  V.  O'Haugli. 
49  Ark.  418.  5  S.  W.  711:  Lake 
Erie  &c.  R.  Co.  v.  Priest.  131  Ind, 
413.  31  N.  E.  77;  Pittsburgh  &c.  R. 
Co.  V.  Kearns,  58  Ind.  App.  694, 
108  N.  E.  873;  Peden  v.  Chicago 
&c.  R.  Co.,  73  Iowa  328.  35  N.  W. 
424,  5  .^m.  St.  680:  Kentucky  Cent. 
R.  Co.  V.  Kenney,  82  Ky.  154.  20 
.^m.  &  Eng.  R.  Cas.  458:  Ruddick 
V.  St.  Louis  &c.  R.  Co..  116  Mo.  25, 
22  S.  W.  499.  38  Am.  St.  570.  per 
Burgess.  J..  Avery  v.  New  York 
&c.  R.  Co.,  106  N.  Y.  142.  12  N.  E. 
619.  and  cases  cited  in  preceding 
notes.  See  also  Scowden  v.  Erie 
R.  Co..  26  Pa.  Super.   Ct.  15:   Clii- 


cago    &c.    R.    Co.    V.    McEwen,    35 
Ind.  App.  251,  71    X.   E.  926. 

■•^  .A  covenant  running  with  the 
land  "is  a  covenant  beneficial  to 
the  owner  of  the  estate,  and  to  no 
one  but  tlie  owner  of  the  estate, 
and  which,  therefore,  may  be  said 
to  be  beneficial  to  the  estate."  Best, 
J.,  in  Vernon  v.  Smith.  5  B.  &  Aid. 
I  ;  Vyvyan  v.  .Arthur,  1  B.  &  Co. 
410;  Aikin  v.  Albany  R.  Co.,  26 
Barb.  (N.  Y.)  289.  A  successor  of 
tlic  original  company,  by  purchase 
at  judicial  sale,  is  bound  by  the 
covenant  to  fence.  Midland  R. 
Co.  V.  Eisher,  125  Ind.  19.  24  N.  E. 
756,  8  L.  R.  A.  604.  and  note,  21 
.\m.  St.  189.  and  cases  there  cited. 
.See  generally  to  the  effect  that  the 
successor  is  bound  by  such  a  cov- 
enant. Chappell  v.  New  York  &c. 
R.  Co..  62  Conn.  195.  24  At!.  997. 
17  L.  R.  A.  420;  Toledo  &c.  R.  Co. 
V.  Cosand,  6  Ind.  App.  222,  33  N. 
E.  251;  Ruddick  v.  St.  Louis  &c. 
R.  Co.,  116  Mo.  25,  22  S.  W.  499. 
38  Am.  St.  570:  Kansas  Pac.  R.  Co, 
V.  Hopkins.  18  Kans.  494:  Ecton  v. 
Lexington  &c.  R.  Co..  22  Ky.  L. 
1133.  59  S.  W.  864.  And  that  the 
covenant  inures  to  the  covenantee's 
successor.  See  also  Pittsburgh  &c. 
R.  Co.  V.  Kearns.  58  Tnd.  App.  694. 
108  N.  E.  873. 


^  lies 


RAILROADS 


646 


enant.     Aiul  the  fact  that  the  covenant  is  contained  in  the  cov- 
enantor's title  deeds  is  snfllcient  notice  to  1)ind  his  assignee. ^*^ 

§  1168  (946).  Other  covenants. — So,  in  the  absence  of  any 
statute  to  the  contrary,  a  raih'oad  company  may  bind  itself  by  a 
covenant  to  give  a  free  annual  ])ass  over  its  road  to  the  grantor 
and  his  family,^^  or  to  run  trains  to  a  certain  point  in  a  town,^^ 
to  employ  the  land-owner  to  transport  freight  across  a  certain 
river,^^  or  to  do  or  refrain  from  doing  any  act  within  the  range 
of  its  power  to  contract.'"*  But  covenants  of  this  kind,  by  which 
the  grantee  undertakes  to  do  something  for  the  personal  con- 
venience or  benefit  of  the  land-owner  wholly  disconnected  from 
the  use  and  occupation  of  the  land  conveyed,  do  not,  as  a  gen- 
eral rule,  rtin  with  the  land, ■''•''  and  cannot  be  enforced  against  an 


^"Joy  v.  St.  Louis.  138  U.  S.  1, 
11  Sup.  Ct.  243,  34  L.  ed.  843. 

■'"'1  Dodge  V.  Boston  &c.  R.  Co., 
154  Mass.  299,  28  N.  E.  243.  13  L. 
R.  A.  318.  and  note.  See  Pennsyl- 
vania Co.  V.  Erie  &c.  R.  Co.,  108 
Pa.  St.  621;  Ruddick  v.  St.  Louis 
&c.  R.  Co.,  116  Mo.  25.  22  S.  W. 
499,  38  Am.  St.  570:  Eddy  v.  Hin- 
nant.  82  Tex.  354,  18  S.  W.  562; 
1)ut  the  interstate  commerce  act 
and  other  recent  statutes  may  pre- 
vent this.     See  ante,  §  1335. 

^-  People  v.  Louisville  &c.  R.  Co., 
120  111.  48,  5  N.  E.  379,  10  N.  E. 
657,  25  Am.  &  Eng.  R.  Cas.  235. 

5.3  Wiggins  Ferry  Co.  v.  Chicago 
&c.  R.  Co..  7Z  Mo.  389.  39  Am.  Rep. 
519.  5  Am.  &  Eng.   R.   Cas.   1. 

•'••*  .\  landowner  may  bind  himself 
by  a  covenant  with  a  railroad  com- 
pany for  the  shipment  over  its  road 
of  the  entire  product  of  his  quar- 
ries or  iron  furnaces,  but  such  a 
covenant  does  not  bind  his  assign- 
ees, unless  they  expressly  assume 
the  obligation.  Kettle  River  R.  Co. 
V.  Eastern  R.  Co.,  41  Minn.  461, 
43   N.  W.  469,  6  L.  R.  A.    Ill,  40 


Am.  &  Eng.  R.  Cas.  449;  Kippcll 
V.  Bailey,  2  Mylne  &  K.  517.  But 
see  Bald  Eagle  &c.  R.  Co.  v.  Nit- 
tany  Val.  R.  Co.,  171  Pa.  St.  284, 
2,?>  Atl.  239,  29  L.  R.  A.  423,  50  Am. 
St.  807;  Tulk  v.  Moxhay,  2  Phil. 
(Eng.  Ch.)  774. 

^^  Dickey  v.  Kansas  City  &c.  R. 
Co.,  122  AIo.  223,  26  S.  W.  685; 
Gulf  &c.  R.  Co.  v.  Smith,  72  Tex. 
122,  9  S.  W.  865,  2  L.  R.  A.  281; 
West  Virginia  Trans.  Co.  v.  Ohio 
River  &c.  Co.,  22  W.  Va.  600,  46 
Am.  Rep.  527.  A  covenant  to  have 
a  terminus  at  a  certain  place,  and 
not  to  extend  the  road  beyond  it, 
will  not  bind  another  corporation 
which  succeeds  to  the  ownership 
of  the  road.  Lynn  v.  Mount  Sav- 
age &c.  Co.,  34  Md.  603.  See  also 
Close  v.  Burlington  &c.  R.  Co.,  64 
Iowa  149,  19  N.  W.  886;  Piper  v. 
Union  Pac.  R.  Co..  14  Kans.  568; 
Wilder  v.  Maine  &c.  R.  Co.,  65 
Maine  332;  Guilfoos  v.  New  York 
&c.  R.  Co.,  69  Hun  (N.  Y.)  593; 
Hammond  v.  Port  Royal  &c.  R. 
Co..  16  S.  Car.  567. 


647  ACQUISITION  OP  RIGHT  OF  WAY  §  1169 

assignee  of  the  coveiialor.  unless  the  grant  is  expressly  made 
subject  to  the  condition  that  the  state  shall  be  forfeited  for  a 
breach  of  the  covenant.''" 

§1169  (946a).  Right  of  way  over  mineral  lands — Reservation 
of  right  to  mine. —  it  lias  been  properly  held  that  one  selling  a 
railroad  right  of  \\a\-  with  a  reservation  of  the  right  to  mine 
must  so  exercise  this  right  as  not  to  undermine  the  surface  sup- 
port or  let  down  the  tracks,  unless  that  right  is  clearly  reserved 
by  express  words  or  by  necessary  implication."''  "The  court."  it 
is  said  in  the  case  cited,  "must  be  able  to  see  clearly,  from  the 
language  used,  that  the  right  reserved  was  to  extend  to  letting 
down  the  road  or  undermining  the  surface  support,  before  the 
leservation  will  be  construed  to  give  that  power. "^* 

§  1170  (946b).  Use  of  land  acquired  for  right  of  way  pur- 
poses.— It  may  be  said  generally  that  a  railroad  company  is  en- 
titled to  use  the  right  of  way  acquired  by  it  for  all  purposes  inci- 
dent to  its  business  as  a  railroad  company  and  for  which  such  a 
right  of  way  may  properly  be  used,  and  the  mere  fact  that  the 
company  does  not  occupy  or  make  use  of  the  right  of  way  to  its 
full  width  does  not  abridge  this  right.^^  It  has  the  right  to  change 
its  grade  from   time   to   time  as  required  by  the  exigencies   of 

■"^e  Ruddick  v.  St.  Louis  &c.  R.  Iowa  78,  39  N.  W.  198.  And  com- 
Cc,  116  Mo.  25,  22  S.  W.  499,  38  pare  Cleveland  &c.  R.  Co.  v.  Simp- 
Am.  St.  570.  But  see  Bald  Eagle  son  (Ind.).  104  N.  E.  301. 
R.  Co.  V.  Nittany  Val.  R.  Co.,  171  59  Mt.  Pleasant  Coal  Co.  v.  Dela- 
Pa.  St.  284,  33  Atl.  239.  29  L.  R.  A.  ware  &c.  R.  Co.,  6  Lack.  Leg.  N.  1. 
423,  50  Am.  St.  807.  See  also  Kotz  v.  III.  Cent.  R.   Co.. 

57  Silver  Springs  &c.  R.  Co.  v.  188  111.  578,  59  \.  E.  240:  Cleve- 
Van  Ness,  45  Fla.  559,  34  So.  884.  land  &c.  R.  Co.  v.  Hadley,  179  Ind. 
See  also  Montana  Ore  Purchasing  429.  440,  101  N.  E.  473  (citing  text): 
Co.  v.  Boston  &c.  Min.  Co..  20  Leidel  v.  Northern  Pac.  R.  Co..  89 
Mont.  533,  52  Pac.  375.  Minn.  284,  94  N.  W.  877:  Hargis  v. 

58  See  also  Caledonian  R.  Co.  v.  Kansas  City  &c.  R.  Co.,  100  Mo. 
Sprot,  2  Jur.  (N.  S.)  623:  Bell  v.  210.  13  S.  W.  680:  Clark  v.  Hanni- 
Earl  of  Dudley  (1895),  L.  R.  1  Ch.  bal  &c.  R.  Co..  36  Mo.  202:  Nevv 
Div.  182:  Robertson  v.  Youghiog-  York  Cent.  &c.  R.  Co.  v.  Buffalo, 
heny  &c.  Co.,  172  Pa.  St.  566,  33  85  Misc.  R.  7S.  147  X.  Y.  S.  209. 
Atl.    706:    Mickle    v.    Douglas.    75  Post,  §  1281. 


>;  1  171  RAILROADS  648 

traffic  and  the  public  interest.""  Among  other  things,  it  has  the 
light  to  ccjnstruct  necessary  switches  and  turn  tables,*'^  to  erect 
water  tanks,''-  and.  in  a  proper  case  and  for  a  proper  purpose, 
to  build  and  maintain  liotels  and  eating  houses  on  the  right  of 
way.**'  And  this  is  also  true  as  to  warehouses,  elevators,  yards 
and  other  freight  facilities."^  In  Texas,  where  the  term  "right  of 
way"  is  used  in  the  statute  in  contradistinction  to  depots,  shops, 
etc.,  and  in  the  sense  of  land  required  for  roadbed,  a  conveyance 
of  land  to  a  railroad  company  for  right  of  way  is  held  not  to 
.•iuthorize  its  use  for  a  switch-yard.'''  In  the  case  announcing 
tliis  ])rinciplc  the  court  declared  that  the  facts  that  the  land  was 
near  a  city,  was  vakiablc  for  residence  purposes,  that  a  yard 
could  not  be  constructed  on  a  right  of  way  twice  as  wide  as  that 
conveyed,  and  that  the  land  was  used  for  many  years  only  as  a 
main  track,  tended  to  show  that  it  was  the  intention  of  the  par- 
ties that  the  land  should  not  be  used  for  a  switch-yard."" 

§  1171    (946c).     Title  on  abandonment  of  right  of  way. — It  is 

essentia]  to  an  abandonment  of  land  for  raih-oad  ])urp()scs  that 
there  should  be  an  intention  to  abandon  the  land  ;  mere  nonuser 

«"  Kf.tz  V.   ril.  Central  R.  Co..  188  then,  17  111.  App.  582;  Anderson  v. 

HI.    578,    59    N.    K.    240;    Licdel    v.  interstate   Alfg.   Co.,   152  Iowa  455, 

Northern     Pac.    R.    Co..    8')    Minn.  1.32  N.  W.  812,  36  L.  R.  A.  (N.  S.) 

284,  94  N.  W.  877.     -See  also  Cleve-  512,  and  note:   Griswold  v.  Illinois 

land  &c.  R.  Co.  v.  Hadley.  179  Ind.  Cent.  R.  Co..  90  Iowa  265,  57  N.  W. 

429,  440,  101   N.  E.  47.3   (citing  text  843,    24    L.    R.    A.    647;    Michigan 

and   holding  that   the   company,  al-  Cent.   R.   Co.  v.    P.nllard,   120  Mich, 

though    it  takes  only  an   easement  416,  79  N.  W.  635;  Detroit  v.  C.  H. 

under     condemnation     proceedings,  T.ittic  Co.,  146  Mich.  373,  109  N.  W. 

inay  use   material  within  the  limits  671;     Gurney    v.     Minneapolis     &c. 

of  its  right  of  way  to  construct  or  Co..  63  Minn.   70,  65  N.  W.  136,  30 

repair  its  roadbed  at  other  places).  L.  R.  A.  534. 

fii  111.   Cent.   R.   Co.   V.   Anderson,  «•"■  Alissouri   &c.   R.   Co.  v.  Andcr- 

7.^  111.  App.  621.  son,   36  Tex.    Civ.   App.    121;   81    S. 

•"'2  Louisville  &c.  R.  Co.  v.  French,  W.  781.     See  also  Lyon  v.  ]\IcDon- 

100  Tenn.  209,  43  .S.  W.  771.  66  Am.  aid,  78  Tex.  71.  14  S.  W.  261,  9  L. 

St.  752.  R.  A.  295. 

63  Abraham  v.  Oregon  &c.  R.  Co.,  RR  Missouri   &c.   R.   Co.  v.  Ander- 

41   Ore.  550,  69  Pac.  653.  son,   36  Tex.   Civ.   App.    121,   81    S. 

'■•Mllinois    Cent.    R.    Co.    v.    Wn-  W.  781. 


fi49  ACQT'ISITIOX   OF  RIGHT  OP  WAY  §  1171 

is  not  alone  sufficient.""  lUil  nonuser  ma_\'  exist  for  such  a  length 
of  time  as  to  show  an  intention  to  abandon  the  right  of  way,  and 
this  was  held  to  be  true  where  the  construction  of  a  railroad  was 
delayed  for  thirty-lt)ur  }ears.*'®  The  laws  of  Iowa  provide  for  a 
reversion  of  a  railroad  right  of  way  where  it  is  not  used  for  a 
period  of  eight  years.  Under  this  provision  it  was  held  that  a 
land-owner  was  entitled  to  the  possession  of  the  right  of  way 
through  his  land  where  the  only  use  made  of  it  by  the  railroad 
company  during  this  period  was  to  occasionally  shove  an  old, 
worn-out  car  upon  the  track,  and  allow  it  to  stand  there  for 
months,  while  the  other  portions  of  the  right  of  way  were  used 
for  legitimate  railroad  purposes."^  It  has  been  held,  under  a  con- 
veyance of  land  for  railroad  purposes  solely,  to  revert  to  the 
grantor  if  not  so  used,  that  the  operation  only  of  gravel  trains 
from  time  to  time,  though  at  no  stated  times,  did  not  amount  to 
.'lU  abandonment  and  work  a  forfeiture  to  the  grantor. ^°   A  mere 


''"  Holmes  v.  Jones,  80  Ga.  659,  7  ing  part  being  used  by  it  for  stor- 

S.  E.  168;  Gaston  v.  Gainesville  R.  inn;  cars,  is  not  an  abandonment  of 

Co.,    120    Ga.    516,    48    S.    E.    188:  its  easement  in  tlic  strip.     Scarritt 

Stannard  v.  Aurora  &c.  R.  Co.,  220.  v.  Kansas  Cit}-  &c.  R.  Co.,  148  Mo. 

111.    469,    n    N.    E.    254;    Golconda  (il(^.  50  S.  W.  905. 
Northern  Ry.  V.  Gulf  Lines  &:c.  R.,  68  Pp]]ock    v.     :Maysvil!e    &c.     R. 

265    111.    194,    106   N.    E.   818.   Ann.  Co.,   19  Ky.  L.  1717,  44  S.  W.  359. 

Cas.  1916A,  833,  838:   Enfield   ^Ifg.  See    also    Gurdon    &c.    R.    Co.    v. 

Co.  v.  Ward,   190  ^lass.  314,  Id  N.  Vanght.    97    Ark.    234,    133    S.    W. 

E.    1053:    New   York    Cent.    &c.    R.  1019:    Roby   v.    New   York    &c.    R. 

Co.    V.    Chelsea,    213    Mass.    40.    99  Co.,   142  N.  Y.  176,  36  N.  E.  1053: 

N.    E.    455:    Garlick    v.    Pittsburgh  Santa     Fe     &c.     R.     Co.     v.     Laune 

&c.    R.    Co.,    67    Ohio    St.    223,    65  (OUa.),  168  Pac.1022. 
N.   E.   896:    Canadian   River   R.   Co.  '•«  Gill  v.  Chicago  &c.  R.  Co.,  117 

v.  Wichita  Falls  &c.  R.  Co.  (Okhi.),  Iowa  278,  90  N.  W.  606.     In  People 

166   Pac.    163    (question    for   jury);  ex   rel   Golconda   N.   Ry.  v.  Toledo 

Denison    c'^c.    R.    Co.    v.    St.    Eouis  t^-c.   R.    Co..  280  Til.  495,  117  N.   E. 

&c.   R.   Co.,  96  Tex.  233,   72   S,   W.  701,  it  is  said  that  it  is  contrary  to 

161;  ante  §  1141.     Thus,  it  has  been  public    policy   to   permit   a   railroad 

held   that   mere  nonuser   by   a   rail-  company  to  control  a  located  right 

road   company  for  a  period  of  five  of  way  for  a  time   longer  than  the 

years    of    a    portion    of   a    strip    of  statutory  period, 
land    over    which     it    lias    laid     its  "o  Rehlow  v.  Southern  &c.  R.  Co., 

track,    by    reason    of    obstructions  130  Cal.  16,  62  Pac.  295. 
caused  by  a  land  slide,  the  remain- 


§  1172  RAILItOADS  650 

deflection  of  the  road  from  the  granted  right  of  way  does  not 
amount  to  an  abandonment  and  will  not  work  a  forfeiture.''^ 
Where  a  railroad  company  has  merely  an  easement  in  the  right 
of  way,  and  the  abandonment  is  established,  it  has  been  held 
that  the  right  of  way  reverts  to  the  owner  of  the  land  at  the 
time  of  the  abandonment,  and  not  to  the  original  owner/- 

§1172   (947).     Dedication   of   land   to   use   of   railroad. — The 

question  as  to  whether  land  can  l)e  acquired  by  a  railroad  com- 
])any  by  a  common  law  dedication  must  be  considered  an  open 
one,  with  the  weight  of  authority  apparently  to  the  effect  that, 
in  a  strict  sense,  there  can  be  no  such  dedication  to  a  railroad 
company.''^  The  question  has  arisen  in  a  number  of  cases,  in 
some  of  which  it  is  said  that  a  railroad  is  so  far  a  public  highway 
that,  whenever  the  owner  of  the  land  has  shown,  by  an  un- 
equivocal act  or  declaration,  his  purpose  to  dedicate  the  land 
to  the  use  of  a  railway,  and  the  company  engaged  in  building  the 
railway  has  acted  in  reference  to  and  upon  the  faith  of  such 
declaration,  the  title  of  the  railway  company  is  complete. ''■*  But 
it  has  been  held  that  a  dedication  will  not  be  presumed  from  the 
peaceable  occupancy  and  user  of  land  for  a  right  of  way  or  for 
depot  purposes  by  the  company  for  any  period  less  than  that  re- 
quired to  confer  title  by  prescription  under  the  statute  of  limita- 
tions.'^ And  this  occupancy  must  have  been  continuous,  and 
with  the  actual  knowledge  of  the  owner,  or  of  some  one  having 
lull  power  to  represent  him  in  disposing  of  the  land."*'    In  those 

"1  Dickson    v.    St.    Louis    &c.    R.  way,    but   the    question    is    still    left 

Co.,  168  Mo.  90,  (n  S.  W.  642.  open. 

v^McLemore    v.    Charleston    &c.  ^^  Texas  &c.   R.  Co.  v.  Sutor,   56 

R.  Co.,  Ill  Tenn.  639,  69  S.  W.  338.  ^cx.  496,   11    Am.   &   Eng.    R.   Cas. 

c.        ,       A/r   fi     o       n    /-  T'  506.     See  Morgan  v.   Railroad  Co., 

See  also  Mobile  &c.  R.  Co.  v.  Kam-  ,    t,,    t^ 

oo  ^T-       oiT    ^1   c       eii     A/r-  96  U.  S.  716,  24  L.  ed.  743;  Denver 

per,  88  Miss.  817,  41  So.  513;   Mis-  ^.     ,      t^     ^  >t     .         in    r-   i 

.  ^        ^    ^  „      ,,  ,r^.  Circle   R.    Co.   v.    Nestor,    10    Colo, 

sour.  Pac.  R.  Co.  v.  Bradbury,  106  ^^^^  ^^  p,^^  ^^^^^  ^^_  ^    ^^ 

Mo.  App.  450.  79  S.  W.  966.  ^.    ^,,^^^^  59  ^^^   ^^ 

T"*  The   text   is   cited   in   Shinanek  75  Jones   v.   New    Orleans   cl'C.    R. 

V.   Chicago  &c.  R.  Co.   (Iowa),  152  Co.,  70  Ala.  227. 

N.   W.   574,   575,   to   the   effect  that  ^n  Daniels     v.     Cliicago     tS:c..     35 

the  weight  of  authority  seenis  this  Iowa  129,  14  Am.  Rep.  490. 


051  *  ACC^UISITKJN   OF   RIGHT   OF   WAY  §  1172 

States  where  the  statute  provides  that  the  designation  of  land 
upon  a  duly  acknowledged  and  recorded  plat  of  a  town  or  addi- 
tion thereto,  as  belonging  to  any  individual  or  corporation,  shall 
operate  as  a  conveyance  of  such  land  for  the  uses  and  purposes 
therein  specified  or  intended,  there  can  be  no  doubt  as  to  the 
right  of  a  railway  company  to  claim  lands  dedicated  to  it  in  this 
manner,  since  the  making  and  recording  of  such  a  plat  amounts 
to  the  execution  of  a  conveyance  to  the  company  of  the  desig- 
nated land.'^  But  it  is  held  that  the  intention  to  dedicate  must 
be  evidenced  by  the  plat  alone,  and  cannot  be  proven  by  parol. '^ 
A  common  law  or  parol  dedication  can  only  be  made  to  the  pub- 
lic."'' And  since  the  lands  acquired  by  a  railroad  corporation  for 
the  purposes  of  its  enterprise  are,  so  far  as  the  right  of  property 
is  concerned,  strictly  private  property,  over  which  the  corpora- 
tion exercises  exclusive  control,  the  better  opinion  seems  to  be 
that  property  cannot  be  dedicated  by  a  common  law  dedication 
either  for  depot  grounds,^"  or  for  a  right  of  way*^  for  a  railroad, 

'■Morgan  v.  Railroad  Co..  96  U.  46  Minn.  321,  48  N.  W.  1129,  46 
S.  716,  24  L.  ed.  743.  In  Ohio,  it  Am.  &  Eng.  R.  Cas.  543.  See  also 
is  held  that  the  recording  by  a  Louisville  &c.  R.  Co.  v.  Stephens, 
husband  and  wife,  of  a  plat  of  an  1^  Ky.  401,  29  S.  W.  14;  Nobles- 
addition  to  a  town  or  city,  the  title  ville  v.  Lake  Erie  &c.  R.  Co.,  130 
to  which  is  in  the  wife,  with  a  lot  Ind.  1,  29  N.  E.  484.  But  compare 
of  ground  designated  as  the  depot  Morgan  v.  Railroad  Co.,  96  U.  S. 
of  a  railroad  company  whose  road  716.  24  L.  ed.  743. 
extends  over  the  same  ground,  op-  "^  McWilliams  v.  Morgan.  61  111. 
erates  to  invest  the  title  of  the  lot  89;  Carpenter  v.  Gwjmn.  35  Barb, 
in  the  company,  either  as  a  con-  (N.  Y.)  395;  Todd  v.  Pittsburgh 
veyance  or  by  dedication.  A  feme  &c.  R.  Co.,  19  Ohio  St.  514.  But  see 
covert  in  Ohio  can  only  divest  her-  Morgan  v.  Railroad  Co.,  96  U.  S. 
self  of  title  to  realty  by  an  act  of  716.  24  L.  ed.  743;  Illinois  Cent.  R. 
conveyance  made  in  conformity  to  Co.  v.  Indiana  &c.  R.  Co.,  85  III. 
the  statute.  Todd  v.  Pittsburgh  211 ;  State  v.  Strong,  25  3.1aine  297. 
&c.  R.  Co..  19  Ohio  St.  514.  holding  so  Todd  v.  Pittsburgh  &c.  R.  Co.. 
that  marking  upon  a  plat  one  lot  19  Ohio  St.  514. 
"depot  of  O.  &  P.  Railroad"  does  ^^  Lake  Erie  &c.  R.  Co.  v.  Whit- 
not  dedicate  it.  See  Watson  v.  ham,  155  111.  514,  40  N.  E.  1014.  28 
Milwaukee  &c.  R.  Co.,  46  Minn.  L.  R.  A.  612.  46  Am.  St.  355;  Louis- 
321.  48  N.  W.  1129.  46  Am.  &  Eng.  ville  &c.  R.  Co.  v.  Stephens.  96  Ky. 
R.  Cas.  543.  401,  29  S.   W.   14.  49   Am.   St.  303: 

78  Watson  v.  Chicago  &c.  R.  Co..  ^Minneapolis  &c.  R.  Co.  v.  Marble, 


>;1172  KAILHOADS  '  652 

at  least  where  it  is  held  to  be  an  interest  in  land  and  within  the 


112  Mich.  4,  70  X.  W.  319;  Currie 
V.  Natchez.  &c.  R.  Co.,  61  Miss.  725; 
Watson  V.  Chicago  &c.  R.  Co.,  46 
Minn.  321,  48  N.  W.  1129,  46  Am. 
&  Eng.  R.  Cas.  543.  In  this  last 
case  the  court,  by  Giltillan,  C.  J. 
said:  '"There  are  two  principal 
questions  in  tlie  case — First,  Was 
there  a  statutory  donation  or  grant 
of  the  land  in  controversy  to  the 
defendant  Clark  W.  Thompson,  by 
means  of  the  plat  of  the  town  of 
Wells?  Second.  May  a  railroad 
corporation  acciuire  an  easement  in 
lands  by  a  common-law  dedication 
of  it  to  public  use  for  railroad  pur- 
poses? For,  if  the  second  ciuestion 
be  answered  in  the  affirmative, 
there  can  be  no  doulit  of  the  de- 
fendant's title,  as  the  facts  found 
are  sufficient  to  cstal)lish  a  dedica- 
tion. The  first  of  these  questions 
is  really  covered  by  the  decision  in 
County  Commissioners  of  Henne- 
pin Co.  V.  Dayton,  17  .Minn.  260  .  .  . 
Such  a  donation  or  .^rant  must  be 
evidenced  wholK-  by  the  plat.  It 
can  not  rest  partly  upon  the  plat 
and  partly  in  parol,  any  more  than 
can  a  conveyance  liy  deed.  Tiie 
intent  to  donate  or  grant  must  ap- 
pear from  the  plat  itself.  ...  It  is 
remarkable  that  there  are  so  few 
decisions  touching  in  any  way  the 
capacity  of  a  railroad  company  to 
receive  a  common-law  dedication 
of  land  for  the  purpose  of  a  rail- 
way. The  appellant  refers  us  to  1 
Ror.  R.  p.  322,  where  the  autlior 
assumes  that  such  dedication  may 
be  made,  and  to  Daniels  v.  Chi- 
cago &c.  R.  Co..  35  Iowa  129.  14 
Am.  Rep.  490;  Texas  &c.  R.  Co.  v. 


Sutor,  50  Te.x.  496,  11  Am.  &  Eng. 
R.  Cas.  506;  and  Morgan  v.  Chicago 
&c.  R.  Co.,  96  U.  S.  716,  24  L.  ed. 
743. — in  which  the  same  thing 
seems  to  have  been  assumed,  though 
in  none  ot  them  is  there  anything 
to  indicate  that  the  question  was 
raised.  In  Todd  v.  Pittsburgh  &c. 
R.  Co..  19  Ohio  St.  514,  referred  to 
by  the  respondent,  the  court,  held 
directly  that  a  railroad  company 
can  not  ac(|uire  title  to  land  by 
dedication.  The  appellant  argues 
I'lat,  whenever  the  right  of  eminent 
domain  may  be  exercised  to  ap- 
propriate private  property  to  pub- 
lic use,  the  propertj^  or  an  ease- 
ment in  it,  may  pass  bj'  a  common- 
law  dedication;  and  therefore,  as 
lands  for  the  use  of  a  railroad  com- 
l)any  may  he  apprc^priatcd  under 
tile  right  of  eminent  domain,  such 
a  dedication  ma}-  be  made  to  a 
railroad  companj-.  It  is  not  true, 
however,  that  a  public  use.  which 
will  justify  taking  private  property 
under  the  right  of  eminent  domain, 
will  in  all  cases  sustain  a  dedication 

to  public  use The  rule  that  a 

right  in  the  pu.blic  to  use  the  land 
of  an  individual  maj'  be  yested  by 
dedication,  by  acts  in  pais,  when 
such  a  right  can  vest  in  an  individ- 
ual onh-  by  grant,  is  anomalous, 
and  grows  out  of  the  nccessitj'  of 
the  case,  and  has  Ijeen  accounted 
for  on  the  ground  that  there  is  no 
grantee  in  esse  capable  of  taking. 
The  origin  of  the  doctrine  of  dedi- 
cation has  sometimes  been  ascribed 
to  Eade  v.  Shepherd.  2  Strange, 
1004,  decided  about  150  years  ago. 
That  is  the  earliest  case  in  which 


H53  ACQUISITION   OP  RIGHT  OF  WAY  §  1172 

stritute  of  frrinds.  unless  the  dedicition  is  made  in  accordance 


we  find  the  word  'dedication'  used, 
and  in  whicli  some  of  the  requisites 
of  a  dedication  are  suggested.  But, 
tliough  it  has  been  greatly  devel- 
oped and  modified  since  that  time. 
to  meet  the  altered  condition  of 
public  needs,  the  doctrine  had  its 
roots  in  the  common  law  for  cen- 
turies before  that  case.  The  public 
right,  however,  w-as  not  described 
as  held  bj-  dedication,  but  bj'  cus- 
tom. As  to  the  rights  of  the  pub- 
lic, some  requisites  of  a  good  cus- 
tom are  not  retained  in  the  law^ 
of  dedication,  most  notably  that  in 
relation  to  tlie  time  of  duration 
of  tlie  public  uses.  Others  are,  a 
custom  to  take  a  profit  out  of  the 
land  of  another  to  use  it  for  pur- 
poses of  profit  was  not  good.  Gate- 
ward's  Case,  6  Coke,  60:  Grimstead 
V.  Marlowe,  4  Term  Rep.  717;  :\Iel- 
lor  A'.  Spateman.  1  Saund.  339: 
RIewett  V.  Tregonning,  3  Adolpli. 
&  E.  1002:  Waters  v.  Lilley,  4  Pick. 
(Mass.)  145,  16  Am.  Dec.  333: 
Pcarsall  v.  Post,  20  Wend.  (K.  Y.) 
Ill:  Post  V.  Pearsall,  22  Wend. 
(N.  Y.)  425:  Littlefield  v.  ^laxwell, 
31  Elaine  134,  50  Am.  Dec.  653.  All 
that  could  be  claimed  was  an  ease- 
ment, as  a  right  of  way.  The  claim 
of  right  to  take  a  profit  from  the 
soil  of  another  had  to  be  supported 
by  grant  or  bj^  prescription,  which 
supposes  a  grant:  and  as  the  pub- 
lic, as  such,  could  not  take  a  grant, 
of  course  it  could  not  take  such  a 
right.  We  have  not  been  referred 
tn  any  decided  case,  nor  been  able 
to  find  an\-,  which  decide^  tliat 
the  law  of  dedication  is  not  sub- 
ject   to    this    restriction,    or    which 


holds  that  a  dedication  ma}^  be 
made  to  take  a  profit  out  of  the 
land,  or  to  use  it  for  purposes  of 
profit.  The  case  of  Pearsall  v. 
Post,  especially,  in  the  court  of  er- 
rors, goes  over  the  whole  doctrine, 
and  denies  that  such  a  right  can  be 
claimed  by  dedication.  Most  of  the 
land  throughout  the  country,  ap- 
propriated under  the  right  of  emi- 
nent domain,  is  taken  and  employed 
in  the  public  use.  through  the 
agencj'  of  business  corporations. 
Thej'  are  authorized  to  emplo}-  the 
land  taken,  not  only  for  the  public 
benefit,  in  the  public  use,  but  for 
carrj'ing  on  the  business  they  are 
authorized  to  transact,  not  only  to 
serve  the  public,  but  to  serve  their 
own  private  interests — -to  make  for 
themselves  a  profit  out  of  the  use 
of  the  land  taken.  Where  land  is  to 
he  employed  in  the  public  use,  by 
a  business  corporation  or  an  indi- 
vidual, there  is  no  reason,  founded 
on  necessit3%  for  the  doctrine  of 
dedication;  because  there  is,  in  such 
case,  a  grantee  in  esse  capable  of 
taking  a  grant.  Private  propertj^ 
can  not  be  acquired  by  dedication. 
....  The  lands  acquired  by  the 
corporation,  for  the  purposes  of  its 
enterprise,  are,  so  far  as  the  right 
of  property  is  concerned,  private 
propert}^  If  purchased,  the  cor- 
poration pays  for  them:  if  taken  in 
the  exercise  of  the  right  of  eminent 
domain,  it  pa3-s  the  compensation. 
It  is  true  thej-  are  charged  with  a 
public  duty,  which  the  corporation, 
in  consideration  of  the  rights  and 
p  )wers  conferred  on  it  by  the  state, 
assumes  to  perform,  and  wdiich  the 


^  1172 


RAILROADS 


654 


with  a  statute.  1)\-  which   it  is  given  the  force  and  effect  of  a 
grant. ^- 


state  can  compel  it  to  perform.  Hut 
its  rights  in  the  lands  as  its  own 
property  are  secure  and  inviolable. 
State  V.  Chicago  &c.  R.  Co.,  36 
IMinn.  402,  31  N.  W.  365.  The  cor- 
poration, for  its  own  profit  and 
advantage,  accepts  the  franchises 
offered  bj^  the  state,  and  assumes 
to  perform  the  functions  and  du- 
ties required  by  the  state,  not  with 
property  furnished  it  by  the  state. 
but  with  its  own  property.  The 
ownership  of  the  property  is  pri- 
vate, though  the  use  required  to 
be  made  of  it  is  public.  The  private 
ownership  prevents  the  acquisition 
of  it  by  dedication." 

^^  Morgan  v.  Railroad  Co.,  96  U. 
S.  716,  24  L.  ed.  743;  Watson  v. 
Chicago  &c.  R.  Co.,  46  Minn.  321. 
48  N.  W.  1129,  46  Am.  &  Eng.  R. 
Cas.  543.  But  while  Watson  v. 
Railroad  Co.,  46  Minn.  321,  48  N. 
W.  1129,  46  Am.  &  Eng.  R.  Cas. 
543,  holds  that  the  evidence  of 
such  a  dedication  must  be  made 
certain  and  complete  by  the  map 
on  which  an  intention  to  dedicate 
is  noted,  and  that  parol  evidence  of 
acts  and  declarations  of  tlie  land- 
owner which  accompanied  or  fol- 
lowed the  recording  of  the  map 
can  not  be  received  to  prove  an 
intention  to  dedicate,  Morgan  v. 
Railroad  Co.,  96  U.  S.  716.  24  L.  ed. 
743,  holds  the  contrary.  Tn  the 
latter  case,  in  construing  the  Illi- 
nois statute  with  regard  to  dedi- 
cation, which  provides  that  a  do- 
nation or  grant  marked  or  noted 
on  the  map  or  plat  duly  executed 
and  recorded,  shall  vest  in  the 
grantee  a  fee-simple  title  to  the 
land  "for  uses  and  purposes  therein 


named,  expressed  or  intended," 
tlie  court  said:  "The  purposes  of 
tlie  grant  are  not  required  to  be 
set  forth,  nor  is  there  any  limita- 
tion as  to  what  they  shall  be.  The 
power  and  will  of  the  donor  are 
unfettered.  The  provisions  are 
simply  a  mode  of  conveyance 
wliich  the  grantor  may  pursue,  if 
he  chooses  to  do  so.  The  language 
of  the  statute  is  clear  and  explicit. 

There  is  no  room  for  doubt 

Was  the  intention  of  the  appellant 
to  dedicate  the  premises  to  the 
railroad  company  for  its  use  for 
depot  purposes,  as  claimed,  'named, 
expressed  or  intended'?  Either,  as 
to  the  use,  is,  according  to  the 
statute,  sufficient.  The  facts  to 
which  we  have  adverted  in  the 
previous  parts  of  this  opinion  seem 
lo  us  conclusive  upon  the  subject. 
The  (juestion  must  be  resolved  in 
the  affirmative.  If  this  view  be 
correct,  the  legal  title,  by  virtue  of 
the  statute,  passed  to  the  corpora- 
tion with  the  right  of  user  as  to 
the  premises  for  all  depot  purposes, 
but  for  none  other.  'No  particular 
form  of  words  is  recjuired  to  the 
validity  of  a  dedication.  The  ded- 
ication may  be  made  by  a  survey 
and  plat  alone,  without  any  decla- 
ration, either  oral  or  on  the  plat, 
that  it  was  the  intention  of  the  pro- 
prietor to  set  apart  certain  grounds 
f(ir  the  use  of  tlie  public.  An  ex- 
;iniination  of  the  cases  referred  to 
in  the  argument  will  show  that 
dedications  have  been  established 
in  every  conceivable  way  by  which 
the  intention  of  the  dedicator  could 
be  evinced.'  Godfrey  v.  .■\lton,  12 
111.  29.  52  Am.  Dec.  476." 


fi55 


ACQUISITION  OF   RIGHT   OP  WAY 


§1173 


§  1173.  Dedication  to  railroad — Statute  of  frauds. — As  al- 
ready indicated  there  is  some  conflict  of  authority  as  to  whether 
a  parol  transfer  by  dedication  is  within  the  statute  of  frauds. 
But  the  weight  of  authority  is  clearly  to  the  effect  that  no  mat- 
ter whether  the  right  of  way  is  to  be  held  absolutely  in  fee  or  is 
a  mere  easement  it  is  an  interest  in  land  and  must  be  evidenced 
by  a  writing-  under  the  statute  of  frauds.*^  The  question  has  not 
been  squarely  decided  in  very  many  dedication  cases,  and,  while 
there  are  many  decisions,  in  rather  closely  analogous  cases,  to 
the  efifect  that  a  parol  license  is  revocable  even  where  the  rail- 
road company  has  expended  much  money  in  constructing  its 
tracks,  on  the  faith  of  the  license,  there  are  also  many  decisions, 
as  shown  in  a  subsequent  section,  to  the  effect  that  such  a  license 
so  acted  upon  is  irrevocable. 

§  1174  (948).  Title  by  adverse  possession. — A  railroad  com- 
pany may  acquire  title  to  land  by  adverse  possession  for  the  full 
period  prescribed  by  the  statute  of  limitations  in  the  same  man- 
ner as  an  individual.^*    But  such  possession  must  be  continuous 


S3  Nowlin  Lumber  Co.  v.  Wilson. 
119  Mich.  406,  78  N.  W.  338:  Wat- 
son V.  Chicago  &c.  R.  Co.,  46  Minn. 
321.  48  N.  W.  1129;  Spawn  v.  South 
Dakota  Cent.  R.  Co.,  26  S.  Dak.  1. 
127  N.  W.  648,  Ann.  Cas.  1912D, 
979,  and  cases  there  cited  in  opin- 
ion and  note. 

^*  Organ  v.  Memphis,  etc.  R.  Co., 
51  Ark.  235,  11  S.  W.  96;  Sherlock 
V.  Louisville  &c.  R.  Co.,  115  Ind. 
22.  17  N.  E.  171;  Shinanck  v.  Chi- 
cago &c.  R.  Co.  (Iowa),  152  N. 
W.  574,  575  (citing  test);  Myers 
V.  McGavock,  39  Nebr.  843,  58  N. 
W.  522,  42  Am.  St.  627;  Texas  &c. 
R.  Co.  V.  Gaines  (Tex.),  27  S.  W. 
266:  Gulf  &c.  R.  Co.  v.  Branden- 
burg (Tex.  Civ.  App.),  167  S.  W. 
170:  Cogsbill  v.  Railway  Co.,  92 
Ala.  252,  9  So.  512,  and  authorities 
cited   in   following  notes.     See  also 


Louisville  &c.  R.  Co.  v.  Smith,  128 
Fed.  1;  Brinker  v.  Union  Pac.  R. 
Co.,  11  Colo.  App.  166,  55  Pac.  207; 
St.  Louis  &c.  R.  Co.  V.  Nugent,  152 
III.  119,  39  N.  E.  263;  Waggoner  v. 
Wabash  &c.  R.  Co.,  185  111.  154,  56 
N.  E.  1050;  Newcastle  v.  Lake  Erie 
&c.  R.  Co.,  155  Ind.  18,  57  N.  E. 
516;  Newpoint  v.  Cleveland  &c.  R. 
Co.,  59  Ind.  App.  147,  107  N.  E. 
560:  Fortune  v.  Chesapeake  &c.  R. 
Co.,  22  Ky.  L.  749,  58  S.  W.  711; 
McCutcheon  v.  Texas  &c.  R.  Co., 
118  La.  436,  43  So.  42;  Perkins  v. 
Maine  Cent.  R.  Co..  72  Maine  95; 
LeBlanc  v.  Illinois  Cent.  R.  Co., 
72  Miss.  669,  18  So.  381:  Turner  v. 
Union  Pac.  R.  Co.,  112  Mo.  542,  20 
S.  W.  673;  Boyce  v.  Missouri  Pac. 
R.  Co.,  168  Mo.  583,  68  S.  W.  920, 
58  L.  R.  A.  442;  American  Bank 
Note  Co.  V.  New  York  &c.  R.  Co., 


^  1174 


RAILROADS 


656 


and  under  claim  of  right. *=  and  of  such  a  character  as  to  give 
notice  to  the  land-owner  of  the  company's  claim  of  title  to  the 
land.-'"'  Thus,  where  a  railway  company  has  made  no  attempt  to 
use  for  a  right  of  way  certain  lands  adjoining  its  location,  and  is 
possessed  of  no  paper  title  thereto,  the  fact  that  it  has  dug  away 
some  of  the  soil  and  piled  some  ties  upon  the  land  will  not  give 
it  a  title  under  adverse  possession  where  these  acts  were   not 


129  X.  Y.  252,  29  N.  E.  302;  VVol- 
tard  V.  Fisher,  48  Ore.  479.  84 
Pac.  850.  851  (citing  text).  Com- 
pare Narron  v.  Wilmington  &c.  R. 
Co..  122  N.  Car.  856.  29  S.  E.  356; 
40  L.  R.  A.  415.  with  Purifoy  v. 
Richmond  &c.  R.  Co..  108  N.  Car. 
100.  12^  S.  E.  741.  In  most  in- 
stances, ho\ve"\'er,  that  which  is  ac- 
quired is  only  a  kind  of  easement 
rather  than  a  fee-simple.  But  see 
Connellsville  Gas  Co.  v.  Baltiinore 
&c.  R.  Co.,  216  Pa.  309.  65  Atl.  669, 
where  it  is  lield  that  a  railroad 
company  taking  land  for  its  right 
of  way  without  compensation  can 
not  acquire  title  by  adverse  posses- 
sion. Acts  of  Congress  have  made 
adverse  possession  of  part  of  a 
right  of  way  under  certain  grants 
have  the  same  effect,  when  of  the 
duration  prescribed  by  the  laws  of 
the  state,  as  if  the  land  within  the 
right  of  way  had  been  granted  ab- 
sf)hitelj'  in  fee;  but  retrospective 
operation  will  not  be  given  to  them. 
Union  Pac.  R.  Co.  v.  .Laramie 
Stock  Yards  Co.,  231  U.  S.  190,  34 
Sup.  Ct.  101,  58  L.  ed.  179:  Union 
Pac.  R.  Co.  V.  Snow,  231  U.  S.  204, 
34  Sup.  Ct.  104,  58  L.  ed.  184. 

«•'''  Peck  V.  Louisville  &c.  R.  Co.. 
101  Tnd.  366;  St.  Paul  v.  Chicago 
&c.  R.  Co.,  63  Minn.  330,  63  N.  W. 
267,  65  N.  W.  649,  68  N.  W.  458; 
Lehigh  Valley  R.  Co.  v.  McFarlan, 


43  X.  J.  L.  605.  See  also  \^andalia 
R.  Cn.  V.  Wheeler,  181  Ind.  424, 
103  X.  E.  1069;  Borden  v.  South- 
side  R.  Co..  5  Hun.  (X.  Y.)  184; 
Blaisdell  v.  Portsmouth  &c.  R.  Co.. 
51  N.  H.  483;  Peoria  &c.  R.  Co.  v. 
Tamplin.  156  111.  285.  40  N.  E.  960. 
.\  right  to  alter  the  grade  of  a 
street  and  lay  additional  track  can 
only  be  acquired  by  twenty-one 
years'  adverse  user.  Little  Miami 
R.  Co.  v.  ITambleton.  40  Ohio  St. 
■496. 

^'''  \  mere  permissive  enjoyment 
of  land  or  of  an  easement  thereon 
does  not  confer  any  adverse  right. 
The  claim  must  be  of  the  entire 
title,  exclusive  of  the  title  of  any 
other  person.  Jones  v.  Xew  Or- 
leans &c.  R.  Co.,  70  Ala.  227; 
Peoria  &c.  R.  Co.  v.  Tamplin.  156 
111.  285.  40  X.  E.  960.  Where  a 
railroad  company  entered  into  pos- 
session of  land  under  an  agreement 
for  the  payment  of  rent,  its  suc- 
cessor by  purchase  or  consolida- 
tion could  not  claim  to  hold  by 
adverse  possession  until  it  had 
given  notice  to  the  land-holder  of 
its  claim  of  title.  And  a  mere  fail- 
rre  to  pay  rent  is  not  such  a  no- 
tice. Wittman  v.  ^lilwaukee  &c. 
R.  Co..  51  Wis.  89,  8  N.  W.  6.  The 
right  to  have  and  maintain  a  cul- 
vert, so  constructed  as  to  cause 
i)laintiff'<    land    to    be    overflowed, 


(i57  ACQT'ISITION   OP   RIGHT  OF   WAY  §  11  75 

done  under  claim  of  ownershi]).'^'  Tn  the  case  cited  the  court 
said :  "Mere  acts  of  trespass  upon  vacant  and  unincumbered 
land,  not  amountiniy  to  an  exclusive  appropriation  thereof,  and 
not  made  under  a  bona  fide_  claim  of  ownershij),  or  under  cir- 
cumstances indicating  such  a  claim,  do  not  constitute  an  adverse 
possession  within  the  meaning  of  the  limitation  laws.  Such 
adverse  possession  cannot  be  inferred,  but  must  be  proved.^' 
The  acts  of  ownership  on  the  part  of  the  railroad  company,  how- 
ever, need  be  only  such  as  the  nature  of  the  property  and  the 
condition  of  the  road  require.  Thus,  where  a  railroad  company, 
under  a  verbal  agreement,  with  the  owner  of  a  tract  of  land, 
staked  off  a  right  of  way  one  hundred  feet  wide  across  the  tract, 
and  built  its  road  upon  the  middle  twenty-five  feet  of  the  strip 
which  it  .had  staked  off.  and  continued  in  exclusive  possession 
of  the  twenty-five  foot  strip  for  the  full  period  of  the  statute  of 
(imitations,  under  claim  of  title  to  the  full  width  of  one  hundred 
leet,  and  during  most  of  that  period  maintained  a  section  house 
at  one  point  within  this  tract  which  extended  back  to  the  edge 
of  the  one-hundred-foot  strip  originally  staked  off,  it  was  held 
that  the  railroad  company  acquired  title  to  the  entire  one  hun- 
dred feet.^^^ 

§1175.     Adverse    possession — Tacking — Extent    of    right    ac- 
Quired. — Where  a  railroad  company  having  the  right  to  exercise 

can  be  acquired  by  a  railroad  com-'  605.       Rut    the    possession    of    the 

pany    by    proof    of    twenty    years'  contractoi's   engas.Teed   in   construct- 

uscr.     Hut  the  user  must  have  been  ing   the   road    is   the   possession    of 

such  as  to  have  subjected  the  com-  the  company  and  starts  the  running 

pany  to  an  action  at  any  time  dur-  of    the    statute    of    limitations    if    it 

ing  the   twenty  years,   and  it   must  has    not    already    started.      Snyder 

be  shown  that  the  overflow  has,  at  v.  Chicago  &c.  R.  Co.,  112  Mo.  527, 

regular   or   irregular   intervals   dur-  20  S.  W.  885. 

ing   the   twenty   years,   covered   the  '^"^  McClellan    v.    Kellogg.    17    111. 

very  land  in  controversy.  Emery  498:  Ambrose  v.  Raley.  58  111.  506. 
V.  Raleigh   &b.  R.  Co.,   102  N.   Car.  "^  liargis  v.   Kansas   City   &c.   R. 

209,  9  S.  E.  139,  11  Am.  St.  111.  Co.,  100  Mo.  210,  13  S.  W.  680.   See 

s"  Chicago  &c.  R.  Co.  v.  Gait,  133  also    Florida    Southern    R.    Co.    v. 

111.   657.   23    N.    E.   425.   44   Am.    &  T.oring,   51    Fed.   932;    Campbell   v. 

Entr.  R.  Cas.  43.     Sec  aF^o   Merritt  Indianapolis    &c.    R.    Co.,    110    Ind. 

v.  Northern  R.  Co..  12  Barb.  (N.Y.)  490,  11  N.  E.  482. 


§117')  RAILROADS  658 

eminent  domain  takes  land  as  a  jiurchaser  from  one  holdini^  ad- 
verse possession,  its  title  will  become  g'ood  when  the  combined 
adverse  possession  of  the  railroad  company  and  its  grantor  ex- 
ceeds the  statutory  ]:)eriod.°"  Where  there  is  no  color  of  title,  rmd 
the  rii^ht  claimed  depends  solely  upon  user,  the  general  rule  is 
that  the  easement  is  measured  by  the  user,  and  will  not  extend 
beyond  the  pedis  possessio.^^  This  rule  has  been  applied  to  high- 
ways and  in  other  analogous  cases,  and  we  do  not  believe  the 
fact  that  the  statute  allows  a  right  of  way  of  a  certain  width  to 
be  condemned  necessarily  gives  a  railroad  company  a  right  of 
wav  of  the  full  statutory  width  by  prescription  where  it  has  had 
adverse  possession  of  a  much  narrower  strip  only.  But  it  is 
doubtful  if  the  general  rule  to  which  we  have  referred  can  be 
applied  in  all  its  strictness  to  railroad  companies.  It  certainly 
cannot  be  that  they  are  confined  to  the  exact  width  occupied  by 
their  track,  for  they  must  have  room  to  safely  operate  their  road. 
If  they  have  no  rights  beyond  their  track,  then  an  abutter  might 
build  up  to  the  track  and  entirely  prevent  its  use.  As  suggested 
in  the  Missouri  case  already  cited,  the  nature  of  the  road,  its 
necessities,  and  the  character  of  the  use  should  be  taken  into  con- 
sideration, together  with  the  acts  of  the  company,  and  the  extent 
of  the  company's  claim,  as  thus  shown,  should,  we  think,  be 
deemed  to  determine  the  extent  of  its  right.  Much  must  neces- 
sarilv  depend  upon  the  peculiar  circumstances  of  each  particular 
case.     What  we  mean  to  say  is  that  if  the  character  and  extent 

f"  Covert  V.  Pittsburg  &c.  R.  Co.,  Chicago    &c.    R.    Co..    86    111.    424; 

204  Pa.  341,  54  Atl.  170.     See  also  Illinois  Cent.  R.  Co.  v.  Indiana  &c. 

note  in  4  L.  R.  A.  642.  R-    Co..   85   111.  211;   Jones   v.   Erie 

91  See   Brinker  v.  Union   Pac.   R.  &'c.  R.  Co.,  169  Pa.  St.  333.  32  Atl. 

Co..  11  Colo.  App.  166,  55  Pac.  207;  535.  47  Am.  St.  916.     So  it  has  been 

Zahn   V.  Pittsburgh  &c.  R.  Co.,  184  held  that  the  erection,  maintenance. 

Pa.   St.   66,   39   Atl.   24;    Leidigh    v.  and    operation    of    a    telegraph   line 

Philadelphia  &c.  R.  Co.,  215  Pa.  St.  by   a   railroad    corporation   are    not 

342.  64  Atl.  539;  Elliott  Roads  and  an    appropriation    nf    the    strip    of 

Streets,  3d  ed.     §  193.  and  authori-  land  between  the  poles  and  the  line 

ties  there  cited.    -Approved  in  P.art  of   the   railroad,   so  as   to    give   the 

lett  v.  Beardmore.  77  Wis.  356,  46  corporation    title    thereto    after    20 

N.   W.   494,   496,   and   in   Marchand  years.      Pittsburgh    &c.    R.    Co.    v. 

v.   Maple   Grove,  48    Minn.  281,  51  Beck.  152  Tnd.  421,  53  N.  E.  439. 
N.  W.  606.  607.     See  also  Wrav  v. 


659 


ACQUISITION   OF  RIGHT   OF  WAY 


1176 


of  the  possession  and  the  acts  of  the  company,  considered  with 
reference  to  the  nature  of  railroads,  are  such  as  to  clearly  indicate 
an  adverse  claim  to  a  right  of  way  of  a  certain  width,  a  right  of 
way  to  that  extent  may  be  acquired  by  prescription,  although  it 
is  not  all  occupied  by  the  track  or  any  other  structure.^- 

§  1176   (948a).     Adverse  possession  as  against  municipality. — 

It  is  the  general  rule  that  the  statute  of  limitations  does  not  run 
against  a  municipal  corporation  as  to  its  streets  and  public  prop- 
erty, and  that  no  right  to  maintain  a  permanent  obstruction  in  a 
street  can  be  acquired  by  prescription  or  adverse  possession.^^ 
Thus,  it  has  been  held  that  no  lapse  of  time  will  give  a  railroad 
company  a  right  to  maintain  an  unlawful  bridge  or  structure  in 
a  city  street.^'*   But  municipal  corporations  are  generally  author- 


92  See  Brinker  v.  Union  Pac.  R. 
Co.,  11  Colo.  App.  166,  55  Pac.  207, 
208:  Prather  v.  Jefifersonville  &c. 
R.  Co.,  52  Ind.  16,  39,  41;  Prather 
V.  Western  Union  Tel.  Co.,  89  Ind. 
501.  But  compare  Indianapolis  &c. 
R.  Co.  V.  Reynolds,  116  Ind.  356, 
19  N.  E.  141;  Ft.  Wayne  &c.  R.  Co. 
V.  Sherry,  126  Ind.  334,  25  N.  E. 
898,  10  L.  R.  A.  48;  Peoria  &c.  R. 
Co.  V.  Attica  &c.  R.  Co.,  154  Ind. 
218,  222,  56  N.  E.  210;  Louisville 
&c.  R.  Co.  V.  Smith,  141  Ala.  335, 
2)7  So.  490.  A  railroad  company 
obtaining  title  to  a  twenty-foot 
strip  under  a  judgment  does  not 
thereby  obtain  color  of  title  out- 
side the  strip,  and,  where  its  actual 
possession  is  limited  to  such  strip 
it  acquires  no  title  to  an  addi- 
tional adjoining  strip  even  though 
the  law  allows  it  a  right  of  way 
one  hundred  feet  wide.  Stone  v. 
Kansas  City  &c.  R.  Co.,  261  Mo. 
61,  169  S.  W.  88.  As  to  right  to 
accretion,  see  Chicago  &c.  R.  Co. 
V.  Groh,  85  Wis.  641.  55  N.  W.  714; 
Saunders  v.  New  York  &c.  R.  Co., 


144  N.  Y.  75,  38  N.  E.  992,  26  L. 
R.  A.  378,  43  Am.  St.  729;  Illinois 
Cent.  R.  Co.  v.  Illinois,  146  U.  S. 
387,  13  Sup.  Ct.  110. 

93  See  Elliott  Roads  &  Streets, 
(3rd  ed.),  §§  1187,  1188,  where  the 
authorities  are  reviewed.  See  also 
People  v.  Harris,  203  111.  272.  67 
N.  E.  785,  96  Am.  St.  304;  St.  Paul 
&c.  R.  Co.  V.  Duluth,  7i  .Minn.  270, 
76  N.  W.  35,.  43  L.  R.  A.  433. 

^■^  Hamden  v.  New  Haven  &c. 
Co.,  27  Conn.  158;  State  v.  Louis- 
ville &c.  R.  Co..  86  Ind.  114;  Phila- 
delphia &c.  R.  Co.  V.  State,  20  Md. 
157;  Delaware  &c.  R.  Co.  v.  Buf- 
falo, 4  App.  Div.  562,  38  N.  Y.  S. 
510;  Windsor  v.  Delaware  &c.  Co., 
92  Hun  127,  36  N.  Y.  S.  863.  affirm- 
ed in  155  N.  Y.  645,  49  N.  E.  1105; 
Little  Miami  &c.  R.  Co.  v.  Greene 
Co..  31  Ohio  St.  338;  Raht  v. 
Southern  R.  Co.  (Tenn.),  50  S.  W. 
72.  See  also  Wiltman  v.  Milwau- 
kee &c.  R.  Co.,  51  Wis.  89.  8  N.  W. 
6;  Knapp  &c.  Co.  v.  New  York  &c. 
R.  Co.,  76  Conn.  311,  56  Atl.  512. 
100  Am.  St.  512. 


0   11(7  RAILROADS  660 

ized  to  permit  or  grant  the  right  to  railroad  companies  to  run 
along  streets,  and.  where  such  is  the  case,  there  is,  perhaps,  good 
reason  for  holding  that  the  general  rule  does  not  apply.  The 
right  to  lay  tracks  in  streets  is  granted  by  the  legislature  or  au- 
thorized l)y  it  to  be  granted  by  municipalities,  so  far  as  the  puldic 
is  concerned,  because  it  is  for  the  public  use  and  benefit,  Avhereas 
there  is  no  such  reason  for  granting  the  right  to  an  individual  to 
obstruct  a  street  for  a  private  enterprise.  So,  in  the  one  case, 
there  never  could  have  been  a  grant  to  obstruct  the  street,  where- 
;is  in  the  other  such  a  grant  could  have  l^een  made  to  the  railroad 
company  to  lay  a  track  in  a  street.  It  has,  therefore,  been  held 
that  a  railroad  company  may  acquire  the  right  to  maintain  a 
i:rack  in  ;i  city  street  by  more  than  twenty  years'  continuous  ad- 
verse possession. ■'•"'  But  it  has  1)ecn  held  that  an  entry  by  a  rail- 
road company  on  a  street,  under  a  resolution  of  the  common 
council  reciting  that  it  was  owned  by  the  city,  is  permissive,  and 
is  presumed  to  so  continue  unless  an  adverse  claim  is  duly  made, 
and  a  deed  of  a  portion  of  the  fee  of  the  street  by  the  city's 
grantor  to. the  railroad  company  thereafter  is  not  such  an  ad- 
verse claim. '^'^ 

§  1177  (949).  Rights  of  railroad  company  acquired  by  entry 
under  license. — A  license  to  enter  upon  land  and  construct  a 
railroad  thereon  operates  as  a  perfect  defense  to  all  acts  done 
within  the  scope  of  such  license,  so  long  as  proper  skill  and 
care  are  used."'  for  that  which  is  done  under  authorit}'  given  by 

n.i  Newcastle  v.  Lake  Erie  &c.  R.  •"•  Lewis  v.  New  York  &c.  R.  Co., 

Co..  155  Ind.  18,  57  N.  E.  516.    See  162  N.  Y.  202.  56  N.   E.  540.     But 

.'ilso    Wolfard    v.    Fisher.    48    Ore.  see   and   compare   Aluhlker  v.   New 

479.    84     T\'ic.     850;     and     compare  York  &c.  R.  Co.,  173  N.  Y.  549.  56 

Trenton  &c.  Trac.  Corp.  v.  Inliabi-  X.     K.    558,    and    ^inlilker    v.    New 

lants   of   Ewing  Tp.,   87   N.   J.    Eq.  York  &c.  R.  Co..  197  U.  S.  544.  25 

.397.    101    .At).    1037.      But    compare  Sup.  Ct.  522.  49  L.  ed.  872. 

Indianapolis  &c.  R.  Co.  v.  Ross.  47  ^"  I'oot  v.  New  Haven  &c.  R.  Co., 

ind.   25:    Noblesville    v.    Lake    Erie  23  Conn.  214:   Louisville  &c.  Co.  v. 

cS:c.  R.  Co.,  130  Lid.  1.  29  N.  E.  484.  Thompson,  18  B.  ^Ton.   (Ky.)   735; 

.\nd    see    as   to   limits   of   riujht   ac-  Currie   v.    Natchez    &c.    R.    Co.,   61 

quired,   Jones   v.    Erie   &c.    R.    Co..  Miss.  725;  Blaisdel!  v.   l^irtsmouth 

169  Pa.  St.  333,  32  M\.  535.  47  \m.  cS:c.  R.  Co..  51   N.  H.  483:   ^Lller  v. 

St.  916.  .\uburn  &c.  R.  Co.,  6  Hill  (N.  Y.) 


(!61  ACQl'lSITIOX    OK    KKillT   OF   WAY  §117'^ 

a  man  is,  in  effect,  his  own  act,  and  he  cannot  make  another  re- 
sponsible to  him  for  his  own  acts.  So,  where  a  railroad  has  been 
located  and  constructed  under  a  parol  license  which  remains  un- 
revoked, the  compan}-  has  the  same  right  to  prevent  another 
company  from  taking-  its  tracks  as  if  it  had  condemned  the 
Innd.'"^  A  license  to  do  a  certain  act  or  series  of  acts  carries  with 
it  all  the  incidents  neccessary  to  its  exercise.  Thus,  a  license  to 
take  wood  or  stone  from  the  grantor's  land  includes  the  right  to 
enter  with  teams  to  haul  it  away.^''  And  a  license  to  build  a  rail- 
road across  certain  lands  carries  with  it  the  right  to  make  the 
excavations  and  embankments  which  the  character  of  the  sur- 
iace  renders  necessary.^  But  a  railroad  company  is  liable  for 
damages  caused  by  its  negligence  in  the  construction  or  opera- 
tion of  its  road  under  a  license  from  the  land-owner.^  A  mere 
naked  parol  license  to  do  certain  acts  upon  the  land  of  another 
does  not  create  a  permanent  easement  therein,  but  siich  a  license 
may  be  revoked  at  any  time  before  it  has  been  acted  upon  by 
the  licensee.^  The  death  of  the  licensor  before  the  license  is 
acted  upon  amounts  to  a  revocation  of  a  license  granted  by 
parol.* 

§  1178.     When  license  is  irrevocable. — There  is  a  strong  line 
of  cases  holding  that  a  parol  license  to  lay  railroad  tracks,  or  to 

61;    Tompkins    v.    Augusta    &c.    R.  18   ?\[inn.   434;    Selden   v.   Delaware 

Co..  21  S.  Car.  420.     See  also  New-  &c.  Canal  Co.,  29  N.  Y.  634. 

castle  V.  Lake  Erie  &c.  R.  Co.,  155  ^  Messick  v.  Midland  R.  Co..  128 

Ind.   18,  57   N.    E.   516.     As  to  the  Tnd.    81,    27    N.    E.    419;    Northern 

extent    of    the    right    acquired,    see  Pac.    R.    Co.    v.    Barnsville    &c.    R. 

Louisville  Szc.  R.  Co.  v.  Smith,  141  Co.,    4   Fed.    (2    McC.   203),   298,    1 

Ala.  335,  37  So.  490.  Am.  &  Eng.  R.  Cas.  8;  Minneapolis 

ssBarre  R.  Co.  v.  Montpelier  &c.  .'^c.  R.  Co.  v.  Marble.  112  Mich.  4. 

R.    Co.,    61    Vt.    1,    17    Atl.    923.    4  70  N.  W.  319;   Minneapolis  &c.   R. 

L.  R.  A.  785.  and  note,  15  Am.  St.  Co.   v.    Minneapolis   &c.  R.   Co..  58 

877.     See   also   Omaha   Bridge    &c.  Minn.  128.  59  N.  W.  983. 

R.    Co.   V.   Whitney,   68   Nebr.   389.  ■»  Eggleston  v.  New  York  &c.  R. 

94  N.  W.  513.  Co.,  35  Barb.  (N.  Y.)   162;  Watson 

^9  Clark  V.  Vermont   &c.    R.   Co.,  v.    Chicago    &c.    R.    Co.,    46    Minii. 

28  Vt.  103.  321,  48  N.  W.  1129.  46  Am.  &  Eng. 

1  See  Blaisdell  v.  Portsmouth  &c.  R.   Cas.   543:    Bridges   v.   Purcell,    1 

H.   Co.,   51    N.   H.  483.  Dev.   &  B.   (X.  Car.)   492. 

-^lathews  v.  St.  Paul  &c.  R.  Co., 


^  11Tb 


RAILROADS 


662 


erect  other  structures  for  the  use  of  a  railway  company  upon  a 
person's  land,  is  revocable  even  after  the  track  is  laid  or  the 
buildings  constructed,^  and  that  the  licensor  is  not  estopped  to 
maintain  an  action  at  law  for  the  recovery  of  the  land  by  the 
fact  that  valuable  improvements  have  been  made  upon  the  faith 
of  the  license."    And  most  of  these  cases  hold  that  the  licensor 


^  Stratton's  Independence  v.  Mid- 
land Terminal  R.  Co..  2,2  Colo.  493. 
n  Pac.  247.     Foot  v.  New  Haven 
&c.  R.  Co..  23  Conn.  214;  Jackson 
&  Sharp  Co.  v.  Philadelphia  &c.  R. 
Co..   4  Dol.   Cli.   180:   Woodward   v. 
Seely,  11   III.  157.  50  Am.  Dec.  445. 
and    note;    St.    Louis    Stock    Yards 
V.  Wiggins  Ferry  Co.,  112  111.  384, 
54  Am.  Rep.  243;  Irish  v.   Burling- 
ton &c.  R.  Co.,  44  Iowa  380,  but  in 
later  Iowa  cases  hereinafter  cited; 
Louisville   &c.   R.   Co.  v.   Liebfried 
(Ky.),  50  Am.  &  Eng.  R.  Cas.  202; 
Baltimore  &c.  R.  Co.  v.  Algire,  63 
Md.    319;    Stevens    v.    Stevens,    11 
Mete.    (Mass.)    251.    45    Am.    Dec. 
203;    Maxwell   v.    Bay   City   Bridge 
Co..   41    Mich.    453,   2   N.   W.   639; 
Mathews  v.  St.  Paul  &c.  R.  Co.,  18 
Minn.  434;  Minneapolis  Mill  Co.  v. 
Minneapolis    &c.   R.    Co.,   51    Minn. 
304.    53    N.    W.    639;    Minneapolis 
Western   R.  Co.  v.  Minneapolis  &c. 
R.  Co..  58  Minn.  128.  59  N.  W.  983. 
New  Orleans   &c.  R.   Co.  v.   Moye. 
39    Miss.    374;    Ilosher    v.    Kansas 
City  &c.  R.  Co..  60  Mo.  329;  Blais- 
dell   V.   Portsmouth   &c.   R.  Co..  51 
N.  H.  483;  Central  R.  Co.  v.  Het- 
field,  29  N.  J.   L.  206;   Hetficld   v. 
Central    R.    Co..   29    N.    J.    L.    571; 
Johanson   v.    .Atlantic    City   R.    Co., 
73  N.  J.  767.  64  Atl.   1061;  Eggles- 
ton   V.    New    York    &c.    R.    Co..   35 
Barb.  (N.  Y.)  162;  Selden  v.  Dela- 
ware &c.  Canal  Co.,  29  N.  Y.  634; 


24  Barb.  362;  Murdock  v.  Prospect 
Park  .S:c.  R.  Co.,  1},  N.  Y.  579; 
Richmond  &c.  R.  Co.  v.  Durham 
&c.  R.  Co.,  104  N.  Car.  658.  10  S. 
K.  659;  llcvvlins  v.  Shippam.  5  B. 
&  C.  221:  Cocker  v.  Cowi)cr.  1  C. 
M.  &  R.  418.  Where  city  has  no 
express  power  to  grant  a  perma- 
nent easement  in  a  street,  it  has 
been  held  that  a  license  to  a  rail- 
road company  can  not  be  construed 
as  a  grant  of  a  permanent  ease- 
ment. State  V.  Atlantic  &c.  R.  Co., 
141  N.  Car.  736,  53  S.  E.  290.  See 
also  where  condition  is  broken,  Ed- 
wards V.  Pittsburgh  &c.  R.  Co., 
215  Pa.  St.  597.  64  Atl.  798.  In 
Plazuela  Sugar  Co.  v.  Pastenza.  245 
Fed.  115.  it  was  held  that  the  de- 
fendant only  had  a  license  to  op- 
erate a  railroad  over  the  plaintifif's 
premises  and  that  the  license  could 
be  revoked  and  the  defendant  re- 
<|uired  to   remove  the  railroad. 

"  Wood  V.  Michigan  Air  Line 
Co..  90  Mich.  334.  51  N.  W.  263.  In 
the  note  to  Prince  v.  Case  and  Re- 
rick  V.  Kern,  2  Am.  L.  Cas..  546. 
557.  558.  it  is  said:  ".'Xn  attempt 
to  charge  land  with  the  burden  of 
a  way  or  other  casement  otherwise 
than  by  deed  will  consequently  fail, 
from  the  insufficiency  of  the  means 
(Muploycd.  if  the  question  arises  at 
law.  and  is  determined  on  strict 
legal  principles.  An  additional 
safeguard  was,  moreover,  given  by 


6f)3 


ACQT'ISITIOX  OF  RirJIIT  OF  AVAY 


§1178 


is  not  l)oun<l,  in  order  to  maintain  an  action  of  ejectment,  to 
reimburse  the  company  for  damages  sustained  by  the  revoca- 
tion." But  the  courts  in  most  of  the  states  where  this  rule  is 
followed  hold  that  a  land-owner  who  grants  permission  to  a  rail- 
road company  to  enter  upon  his  lands  and  construct  its  road 
thereon  may  be  enjoined  from  revoking  the  license  until  the 
company  can  perfect  its  title  by  condemnation,^  and  in  Minne- 


the  statute  of  frauds,  under  which 
no  incorporeal  hereditament  can 
be  granted  or  assigned  without  a 
writing  signed  by  the  party  to  be 
charged.  It  follows  that  no  ease- 
ment or  charge  on  land  can  be 
created  by  an  oral  license,  even 
when  the  intent  is  plain,  because 
the  parties  choose  to  rest  satisfied 
with  unwritten  evidence,  while  the 
law  requires   a  writing,  signed  and 

under  seal Title  is  the  right 

to  possession  and  enjoyment,  and 
an  irrevocable  authority  to  possess 
and  enjoy  is  virtually  a  title.  If  I 
can  use  the  land  of  another  for  a 
purpose  of  my  own,  under  an  au- 
thority which  he  can  not  recall,  the 
ownership  relatively  to  that  pur- 
pose is  in  me  and  not  in  him.  To 
give  an  oral  license  an  effect  which 
is  denied  to  a  contract  is.  therefore, 
virtually  to  abrogate  the  statute 
of  frauds."  Citing  Desloge  v. 
Pearce,  38  Mo.  588;  Houston  v. 
Lafifee.  46  N.  H.  505.  "These  prin- 
ciples are  so  plain  as  to  be  indis- 
putable at  law,  and  the  only  ques- 
tion is  how  far  they  should  be 
modified  by  equity.  A  chancellor 
may  control  the  words  of  the  stat- 
ute in  order  to  prevent  it  from 
being  used  as  a  cover  for  the  com- 
mission of  the  frauds  which  it 
was  meant  to  suppress,  but  the 
power  to  do  this  belongs  solel3^.to 
equity,  and  can  not  be  exercised  by 


a  common  law  tribunal,  without 
confounding  jurisdictions  which 
have  hitherto  been  kept  separate." 
Winslow  V.  Cooper.  104  111.  2.35; 
Wood  V.  Michigan  Air  Line  R.  Co., 
90  Mich.  334,  51  N.  W.  263. 

"  Batchelder  v.  Hibbard,  58  N. 
H.  269,  and  cases  in  preceding  note. 
The  land-owner's  right  to  revoke  a 
parol  license  and  bring  an  action 
of  ejectment  is  not  impaired  by 
mere  inaction  or  delay  in  bringing 
suit,  within  the  time  allowed  by 
the  statute  of  limitations.  Kremer 
V.  Chicago  &c.  R.  Co..  51  Minn. 
15,  52  N.  W.  977,  38  Am.  St.  468, 
51  Am.  &  Eng.  R.  Cas.  382;  Gal- 
way  V.  Metropolitan  El.  R.  Co..  128 
N.  Y.  132.  28  N.  E.  479.  13  L.  R. 
A.  788.  A  land-owner  is  not  es- 
topped to  maintain  an  action  of 
ejectment  by  the  mere  fact  that  he 
granted  the  company  parol  license 
to  proceed  with  the  road  and  oc- 
cupy the  land.  Wood  v.  Michigan 
Air  Line  R.  Co.,  90  Mich.  334.  51 
N.  W.  263,  52  Am.  &  Eng.  R.  Cas. 
37.  See  also  Johanson  v.  Atlantic 
City  R.  Co..  73  N.  J.  767.  64  Atl. 
1061;  Bork  v.  United  N.  J.  &c.  Co., 
70  N.  J.  L.  268,  57  Atl.  412,  64  L. 
R.  A.  836,  103  Am.  St.  808.  Contra. 
Baker  v.  Chicago  &c.  R.  Co.,  57 
Mo.  265. 

8  Cook  v.  Pridgen.  45  Ga.  331. 
12  .\m.  Rep.  582;  Conger  v.  Bur- 
lington   &c.    R.   Co.,   41    Iowa   419; 


§1178                                                       RAILROADS  664 

sota  it  is  provided  by  statute  that  an  action  of  ejectment  brought 

by  the  land-owner  in  such  case  may  be  converted  into  condem- 
nation proceedings  by  the  railroad  company.^  In  those  states  of 
the  Union  where  law  and  equity  are  administered  by  the  same 
court,  relief  is  afforded  in  any  given  suit  where  a  case  of  equitable 

Baltimore  &c.  R.  Co.  v.  Algire,  63  12  N.  VV.  149,  43  Am.  Rep.  192,  and 
Md.  319,  65  ^fd.  337,  4  Atl.  293:  note:  Wilson  v.  St.  Paul  &c.  R.  Co., 
Detroit  &c.  R.  Co.  v.  Brown.  37  41  Minn.  56,  42  N.  W.  600,  4  L.  R. 
Mich.  533;  Pickert  v.  Ridgefield  A.  378;  Minneapolis  Mill  Co.  v. 
Park  R.  Co.,  25  N.  J.  Eq.  316;  New  Minneapolis  &c.  R.  Co..  51  Minn. 
^'ork  &c.  R.  Co.  V.  Stanley,  35  N.  304,  53  N.  W.  639.  This  would 
J.  Eq.  283:  Brown  v.  Bowcn,  30  seem  to  be  entirely  decisive  of  the 
X.  V.  519,  86  .\m.  Dec.  406:  Lacy  case,  but  defendant  claims  that,  be- 
V.  .\rnett,  33  F'a.  St.  169;  I'oster  v.  cause-plaintiff  purchased  after  these 
I'.rowning,  4  R.  1.  47.  67  Am.  Dec.  tracks  had  been  constructed,  there- 
505.  But  though  a  parol  license,  fore  it  took  the  premises  subject 
amounting  in  terms  to  an  ease-  to  the  incumbrance  of  an  easement 
ment,  is  revocable,  as  to  future  en-  in  defendant  to  permanently  main- 
joyment.  at  law,  and  is  determined  tain  the  tracks.  The  mere  state- 
by  a  conveyance  of  the  estate  upon  ment  of  the  proposition  carries 
which  it  was  to  be  enjoyed,  this  is  with  it  its  own  refutation;  for, 
not  the  rule,  in  all  cases,  in  courts  ])lainly  stated,  it  is  that  a  convey- 
of  e(|uity.  In  these  courts,  the  fu-  ance  of  the  premises  1)y  the  li- 
turc  enjoyment  of  an  executed  pa-  censor  to  a  third  pnrty  converts 
rol  license,  granted  upon  a  consid-  a  mere  license  (which  creates  no 
eration,  or  upon  tl'"  faith  of  which  estate  in  the  land)  into  an  ease- 
money  has  been  expended,  will  be  ment,  which  is  an  interest  in  the 
enforced  at  all  events,  where  ade-  land,  and  lies  only  in  grant.  We 
quate  compensation  in  damages  do  not  sec  why,  on  this  line  of 
could  not  be  obtained.  This  will  reasoning,  the  same  result  would 
be  done  upon  the  two  grounds  of  not  have  followed  had  defendant 
estoppel  on  account  of  fraud,  and  lieen  a  mere  intruder  or  trespasser, 
specific  performance  of  a  party  ex-  for  counsel's  argument  is  that  the 
ccuted  contract  to  prdvent  fraud.  purchaser  must  be  deemed  to  have 
Snowden  v.  Wilas,  19  Ind.  10,  14,  taken  the  land  subject  to  the  visi- 
81  Am.  Dec.  370.  hie  incumbrance  then  on  it.  So  far 
^  Minneapolis  W^estern  R.  Co.  v.  from  such  being  the  case,  the  law 
Minneapolis  &c.  R.  Co.,  58  Alinn.  is  that  a  revocable  license  is  re- 
128.  59  N.  W.  983.  In  this  case  the  voked  by  a  conveyance  of  the  land 
court  said:  "The  finding,  there-  I)y  the  licensor.  Johnson  v.  Skill- 
fore,  is  of  a  naked  license,  carr}'-  man,  supra;  Wilson  v.  Railway  Co. 
ing  no  estate  in  the  land,  and  revo-  supra.  Counsel's  argument  is  all 
cable .  at  the  will  of  the  licensor.  based  on  a  false  premise,  which 
Johnson  v.   Skillman,  29  Minn.  95,  begs  the  whole  question.     He  as- 


•^'65                                      ACQUISITION  OF   RUillT  OF   WAY  §  1178 

relief  is  presented.'"    In   the  case  cited  the  action  was,  in  form, 

an  action  at  law  for  damag-es,  and  an  answer  showing  a  parol 

license  and  the  expenditure  of  money  on  the  faith  thereof  was 
held   good.     And   in   the  courts  of  Maine,^^   New   Hampshire, ^- 

sumes  tliat  wlien  a  railway  com-  cense,  and  briiifr  ejectment,  wliicli 
pany  enters  and  Ijnilds  its  track  the  railway  company  may,  if  it  so 
un  land  nnder  a  license  from  the  elects,  tnrn  into  a  condemnation 
fawner,  it  accjnires  a  permanent  ]>rnreedin<r.  and  it  is  only  then,  and 
casement  in  the  land  by  virtne  of  through  that  proceeding,  that  the 
the  license  tluis  acted  on,  and  that  railmad  company  acciuires  any 
thereafter  the  only  ri^ht  of  the  easement  in  the  land,  or  the  land- 
land-owner  is  his  claim  for  com-  r.wner  any  right  to  compensation 
pensation  for  the  taking  of  the  land  for  taking  it  for  railway  purposes. 
for  railway  purposes.  In  some  The  defendant  could  not  acquire 
states — notably  Wisconsin  and  Illi-  title  by  prescription,  because  its 
nois — either  by  statute  or  by  judi-  ])')ssession  was  not  adverse." 
cial  decision,  founded  on  supposed  i"  Snowden  v.  Wilas.  19  ind.  10. 
considerations  of  public  policy,  this  81  Am.  Dec.  370;  I'erkins,  J.  liV 
is  substantially  the  law;  all  actions  lndi:uia  a  land-owner  will  not  be 
by  the  land-owner,  whatever  their  permitted  to  revoke  a  parol  license 
form,  being  in  efifect  actions  to  re-  under  which  the  railroad  company 
cover  compensation  for  the  perma-  has  actually  built  its  road.  Hu- 
nent  appropriation  of  land  already  chanan  v.  Logansport  &c.  R.  Co.; 
taken.  If  such  were  the  law  in  71  Ind.  265;  Campbell  v.  Indianap- 
this  state,  there  would  be  at  least  olis  &c.  R.  Co.,  110  Ind.  490,  11 
some     plausibility     to     defendant's  N.   E.   482. 

contention.     Hut  we  have  repeated-  ^'Ricker   v.    Kelly,   1    Maine    117. 

ly   held   that   the   law   is   otherwise.  10  Am.  Dec,  38  and  note;   Clement 

Watson  V.   Chicago  &c.  R.  Co.,  46  v.  Durgin,  5  Maine  9.                         ' 

:Minn.  321,  48  N.  W.  1129;    Lamm  i- Ameriscoggin     Bridge     Co.    v. 

V.  Chicago  &c.  R.  Co.,  45  Minn.  71,  Bragg,    11     N.     H.    102.      But    see 

47  X.  W.  455,  10  L.  R.  A.  268,  and  Batchelder    v.    Hibbard,    58    N.    H. 

note;   Minneapolis  Mill  Co.  v.  Min-  269.    and    Blaisdell    v.    Portsmouth 

neapolis  &c.   R.   Co.,. 51   Minn.  304,  &c.   R.   Co,,  31   N.   H.  483,  holding 

53   N.  W.   639.     Under  our  statute  that    a    parol    license    is    revocable. 
the  land-owner   niav   revoke   his   li- 


§  1178 


RAILROADS 


666 


Pennsylvania,^^  Oliio,^*  Georgia.^'"'  Indiana,^''  Iowa.'"  and  some 
other  states/^  it  is  held  that  where  a  parol  license  has  been  given, 
upon  the  faith  of  which  moneys  have  been  expended,  the  licensor 
and  those  claiming  under  him.  with  notice,  \\ill  be  estopped 
from  revoking  such  license,  when  the  licensee  cannot  ])e  placed 


"Rerick  v.  Kern.  14  S.  &  R. 
(Pa.)  267.  16  Am.  Doc.  497  and 
note:  Lacy  v.  .Xrnctt,  .3.3  V:i.  169: 
Campbell  v.  AlcCoy,  .31  Pa.  St.  26.3: 
Cumberland  Valley  R.  Co.  v.  Mc- 
Lanahan.  59  Pa.  St.  23. 

"Wilson  V.  Chalfant.  15  Ohio 
248;  45  Am.  Dec.  574:  Pierson  v. 
Cincinnati  &c.  Canal  Co..  2  Disney 
(Ohio)  100.  See  also  Columbus 
&c.  R.  Co.  V.  Williams,  52  Ohio 
St.  268,  41  N.  E.  261. 

15  Sheffield  v.  Collins.  3  Ga.  82: 
Southwestern  R.  Co.  v.  Mitchell.  69 
Ga.  114;  Cook  v.  Pridgen.  45  Ga. 
331,  12  Am.  Rep.  582.  See  also 
Charleston  &c.  R.  Co.  v.  Hughes, 
105  Ga.  1,  30  S.  E.  972.  70  Am. 
St.  17;  Atlanta  &c.  R.  Co.  v.  Bar- 
ker, 105  Ga.  534,  31  S.  E.  452. 

isSnowden  v.  Wilas.  19  Ind.  10. 
81  Am.  Dec.  370;  Buchanan  v.  Lo- 
gansport  &c.  R.  Co..  71  Tnd.  265; 
Evansville  &c.  R.  Co.  v.  Nye,  113 
Ind.  223.  15  N.  E.  261;  Newcastle 
V.  Lake  Erie  &c.  R.  Co..  155  Lid. 
18,  26,  56  N.  E.  516;  Lidianapolis 
&c.  Trac.  Co.  v.  Arlington,  47  Tnd. 
App.  657,  95  N.  E.  280. 

1"  Shinanek  v.  Chicago  &c.  R. 
Co.  (Iowa),  152  N.  W.  574.  575 
(citing  text):  Beatty  v.  Gregorj'.  17 
Iowa  109.  85  Am.  Dec.  546;  Wick- 
ersham  v.  Orr.  9  Iowa  253.  74  Am. 
Dec.  348.  See  also  De^  Moines  &c. 
R.  Co.  V.  Lynd,  94  Iowa  368.  62  N. 
W.  806.  But  compare  Conger  v. 
Burlington  &c.  R.  Co.,  41  Iowa 
419. 


'^  Ames.  C.  J.,  in  Foster  v. 
Browning.  4  R.  1.  47.  67  Am.  Dec. 
505.  In  tiic  fdllitwing  cases  it  has 
been  decided  that  licenses  could 
not  be  revoked  after  the  expendi- 
tin-c  of  money  on  the  faith  of  them. 
Clark  V.  Glidden.  60  Vt.  702.  15  Atl. 
358:  Rhodes  v.  Otis.  33  Ala.  578, 
73  Am.  Dec.  439;  Williams  v. 
Flood.  63  Mich.  487,  30  N.  W.  93; 
New  Orleans  &c.  R.  Co.  v.  IMoye, 
39  Miss.  374;  Baker  v.  Chicago  &c. 
R.  Co..  57  Mo.  265:  Williamston 
&c.  R.  Co.  V.  Battle,  66  N.  Car.  540. 
See  also  Roberts  v.  Northern  Pac. 
R.  Co.,  158  U.  S.  1,  15  Sup.  Ct.  756, 
39  L.  ed.  873:  Northern  Pac.  R.  Co. 
V.  Smith.  171  U.  S.  260,  18  Sup.  Ct. 
794.  799.  43  L.  ed.  157;  Pryzbylo- 
wicz  V.  Missouri  &c.  R.  Co.,  17  Fed. 
493;  Chicago  &c.  Co.  v.  Goodwin, 
111  Til.  273.  53  Am.  Rep.  622; 
T^ouisville  &c.  R.  Co.  v.  Pittsburgh 
&c.  Co..  Ill  Ky.  960,  64  S.  W.  969, 
55  L.  R.  A.  601.  98  Am.  St.  447; 
Cape  Girardeau  &c.  R.  Co.  v.  St. 
Louis  &c.  R.  Co.,  222  Mo.  461, 
121  S.  W.  300;  Chicago  &c.  R.  Co. 
V.  Englehart,  57  Nebr.  444,  77  N. 
W.  1092;  Park  Steel  Co.  v.  Alle- 
gheny &c.  R.  Co.,  213  Pa.  322,  62 
Atl.  920:  Texas  &c.  R.  Co.  v.  Jar- 
rell.  60  Tex.  267;  Ft.  Worth  &c.  R. 
Co.  V.  Sweatt.  20  Tex.  Civ.  App. 
543.  50  S.  W.  162;  Norfolk  &c.  R. 
Co.  V.  Perdue,  40  W.  Va.  442,  21 
S.  E.  755;  Taylor  v.  Chicago  &c. 
R.  Co..  63  Wis.  327,  24  N.  W.  84. 


667  ACQUISITION   OF   RIGHT  OF  WAY  §  1178 

in  statu  quo."  The  occupancy  and  use  of  a  strip  of  land  bv  a 
railway  company  for  its  roadbed  and  track,  and  for  the  running 
of  its  trains,  is  sufficient  notice  of  its  equity  to  bind  a  purchaser 
from  the  original  licensor,-^  and  it  is  held  that  a  land-owner  is 
chargeable  with  knowledge  that  a  railroad  is  of  such  a  permanent 
character  that  it  cannot  well  be  removed  or  abandoned,^^  and 
that,  when  he  permits  its  construction  across  his  land,  he  thereby 
waives  his  remedy  by  injunction  or  action  for  ejectment  or  tres- 
pass for  operating  the  road."  and  is  relegated  to  a  proceeding 
for  damages  under  the  statute.-^     In  such  a  proceeding,  it  has 

10  ^klessick  V.  JNlidland  R.  Co.,  128  -i  Harlow    v.    .Marquette    &c.    R. 

Ind.  81.  27  N.  E.  419;  Campbell  v.  Co.,  41  Mich.  ZZ6,  2  N.  W.  48.    But 

Indianapolis    &c.    R.    Co.,    110    Ind.  see  Wood  v.  Michigan  Air  Line  R. 

490.  11   N.  E.  482;  Midland  R.  Co.  Co.,  90  Mich.  334,  51  N.  W.  263. 

V.  Smith.  113  Ind.  233,  15  N.  E.  256;  22  Roberts    v.    Northern    Pac.    R. 

Currie   v.    Natchez   &c.    R.    Co.,   61  Co.,  158  U.  S.  1,  15  Sup.  Ct.  756,  39 

Miss.  725.     See  this  subject  elabo-  L.  ed.  873:  Reichert  v.  St.  Louis  &c. 

rately  discussed  in  2  Am.   L.    Cas.  R.  Co.,  51  Ark.  491.  11   S.  W.  696, 

684.    And  see  also  notes  to  Munsch  5   L.   R.  A.    183   and   note;    Provolt 

V.    Stettler.    109   Minn,   403,    124   N.  v.  Chicago  &c.  R.  Co.,  57  ^lo.  256; 

W.  14,  in  25  L.  R.  A.   (N.  S.)   727,  ^[cClellan  v.  St.  Louis  &c.  R.  Co., 

and    to   Johnson   v.    Barton,   23    N.  103  Mo.  295.  15  S.  W.  546,  46  Am. 

Dak.   629,   in   44  L.   R.   A.    (N.   S.)  &    Eng.    R.    Cas.    501;    McAulay   v. 

557;    Dulin   v.   Ohio    River   R.    Co.,  Western  Vt.  R.   Co.,  ?>2,  Vt.  311,  78 

7i  W.  Va.  166.  80  S.  E.  145,  Ann.  Am.   Dec.   627;    Hanlin   v.    Chicago 

Cas.  1916D,  1182,  1184  (citing  te.xt).  &c.  R.  Co.,  61  Wis.  515.  21   N.  W. 

20  Roberts    v.    Northern    Pac.    R.  623;     Milwaukee     &c.     R.     Co.     v. 

Co..   158  U.   S.    1,   15   Sup.   Ct.   756.  Strange.  63  Wis.  178.  22,  N.  W.  432. 

39  L.  ed.  873;  Northern  Pac.  R.  Co.  20  .\m.  &  Eng.  R.  Cas.  413;  Taylor 

V.  Smith.  171  U.  S.  260,  18  Sup.  Ct.  v.  Chicago  &c.  R.  Co..  63  Wis.  327. 

794.  43  L.  ed.  157;  Campbell  v.  In-  24  N.  W.  84.  22  Am.  &  Eng.  R.  Cas. 

dianapolis  &c.  R.  Co..  110  Ind.  490.  123.      See    Holloway    v.    Louisville 

11   N.  E.  482.     See  also  Harman  v.  &c.    R.   Co.,   92   Ky.   244.   17   S.   W. 

Southern   R.,  72  S.   Car.  228,   51   S.  572.     And  see  authorities  cited  and 

E.  689.    The  habitual  use  of  a  pass-  reviewed  in  New  York  x.  Pine.  185 

way  under  a  railroad,  stipulated  for  \J.  S.  93,  22  Sup.  Ct.  592,  595.  596. 

in    the   oral   grant   of   the   right    of  46  L.  ed.  820. 

way,    is    sufficient    to    charge    the  -^  Denver    &c.    R.    Co.   v.    School 

purchaser  of  the  road  at  a  judicial  Dist..    14    Colo.    Z27.    23    Pac.    978: 

sale   with    knowledge  of  the    gran-  Baker   v.    Chicago    &c.    R.    Co..    57 

tor's  rights  therein.     Swan  v.  Bur-  Mo.   265:    Richards   v.    Buffalo    &r. 

lington   &c.   R.   Co.,   72   Iowa,   650,  R.  Co.,  137  Pa.  St.  524.  19  Atl.  931. 

34  N.  W.  457.  21    Am.    St.   892:    Buchner   v.    Chi- 


§1178 


RAILROADS 


668 


been  held  that  the  oAvner  of  the  land  should  l)e  awarded  dam- 
ag-es  as  of  the  date  that  the  land  was  taken,  and  not  the  value 
of  his  land  as  increased  by  reason  of  the  completion  and  opera- 
tion of  the  road.-*  AMiere  a  license  is  g'ranted  by  contract  in 
writing. for  a  valuable  consideration,  and  coupled  with  an  inter- 
est, the  license  is  generally  held  to  l)e  irrevocable.-"'   A  license  to 


cago  &c.  R.  Co.,  60  Wis.  264,  19 
N.  W.  56;  Cassidy  v.  Chicago  &c. 
R.  Co.,  70  Wis.  440,  35  X.  W  925. 
"One  who  permits  a  railroad  com- 
pany to  occup}'  and  use  his  lands 
and  construct  its  road  (a  quasi 
public  work)  thereon  witliout  re- 
monstrance or  complaint,  can  not 
afterward  reclaim  it  free  from  the 
servitude  he  has  permitted  to  be 
imposed  upon  it.  Ilis  acquiesence 
to  the  company's  taking  possession 
and  constructing  its  works  under 
circumstances  which  made  impera- 
tive his  resistance,  if  he  ever  in- 
tended to  set  up  illegality,  will  be 
considered  a  waiver.  But  while 
this  presumed  waiver  is  a  bar  to 
his  action  to  dispossess  the  com- 
panj-,  he  is  not  deprived  of  his 
action  in  damages  for  the  value 
of  the  land  or  for  injuries  done 
him  by  the  construction  or  oper- 
ation of  the  road."  St.  Tulicn  v. 
Morgan  &c.  R.  Co..  35  T,a.  Ann. 
924.  Tliat  acciuiescence  in  the  con- 
struction of  the  road  does  not  bar 
the  land-owner's  right  to  recover 
damages,  see  Harlow  v.  ^larquettc 
&c.  R.  Co..  41  Mich.  336.  2  N.  W. 
48:  Thornton  v.  Sheffield  &c.  R. 
Co..  84  Ala.  109,  4  So.  197,  5  Am. 
St.  337;  Payne  v.  Morgan  &c.  R. 
Co.,  43  La.  Ann.  981,  10  So.  10: 
Perkins  v.  Maine  Cent.  R.  Co.,  72 
Maine  95;  Western  Pa.  R.  Co.  v. 
Johnston,  59  Pa.  St.  290:  Galveston 
&c.  R.  Co.  V.  PfeufTer.  56  Tex.  66. 


'-+  Texas  &c.  R.  Co.  v.  Sutor,  56 
Tex.  496.  See  Baltimore  &c.  R. 
Co.  V.  Algire,  65  Md.  337,  4  Atl. 
293.  Tn  Watson  v.  Chicago  &c.  R. 
Co.,  46  Minn.  321.  48  X.  W.  1129. 
46  Am.  &  Eng.  R.  Cas.  543,  the 
court  held  that  an  action  of  eject- 
ment could  not  be  maintained 
against  a  railroad  company  for  the 
recovery  of  land  upon  which  it 
had  constructed  its  road  with  the 
consent  of  the  owner.  And  tliat 
the  mesne  profits  from  the  date  of 
the  revocation  of  the  license  b}' 
the  death  of  the  licensor  should 
lie  allowed  as  damages.  In  Kre- 
nier  v.  Chicago  &c.  R.  Co.,  51 
Minn.  15,  52  N.  W.  977,  38  Am.  St. 
468.  51  Am.  &  Eng.  R.  Cas.  382,  an 
assessment  of  damages  as  for  a 
condemnation  of  the  land  was  had 
in  an  action  in  ejectment  for  land 
lield  by  a  railroad  company  under 
a  parol  license,  the  railroad  com- 
]iany  having  put  in  an  answer 
liraying  for  a  condemnation;  and 
the  action  of  the  court  was  ap- 
proved  on   appeal. 

25  Burrow  v.  Terre  Haute  &c.  R. 
Co..  107  Tnd.  432,  8  N.  E.  167; 
Messick  v.  Alidland  R.  Co..  128 
Tnd.  81.  27  N.  E.  419:  Williamston 
c'tc.  R.  Co.  V.  Battle,  66  N.  Car.  540. 
It  is  a  settled  rule  of  law  that  a 
license  can  not  be  revoked  so  long 
as  it  is  essential  to  the  enjoyment 
of  a  vested  interest  created  by  the 
licensor.      Provolt    v.    Chicago    &c. 


669  ACQUISITION'   OP   RIGHT   OP   WAY  §  1178 

()ccui)\-  land  for  the  rii;ht  of  way  for  a  railroad  will,  in  the  ab- 
sence of  anything  to  the  contrary,  be  construed  to  be  a  license 
to  occupy  the  full  width  which  the  railroad  is  authorized  by 
statute  to  acquire.-'^  A  railroad  company,  which  has  laid  a  track 
under  a  ])arol  license  from  the  land-owner,  can  enter  upon  the 
land  and  remove  the  rails  and  ties  used  in  its  construction,  after 
the  license  is  revoked.-"  But  it  has  been  hekl  that,  where  its 
occu]:iation  of  the  land  is  wrongful,  its  track  becomes  a  part  of 
the  realty  and  cannot  be  removed.-*^  The  conveyance  of  an  ease- 
ment by  deed  cannot  be  revoked.-^ 

R.    Co.,    57    ^fo.    256;    New    Jersey  on    or    appropriated    the    plaintiff's 

&c.  R.  Co.  V.  Van  Sycle,  37  N.  J.  L.  land  to  its  own  use  in  such  a  sense 

496;    McAulay    v.    Western    Vt.    R.  as    to   justify   its   entry   upon    it   or 

Co.,  3i  \'t.  oil,  78  Am.  Dec.  627.  to    obtain   any   legal    title    or  right 

-^  Hargis  v.  Kansas  City  &c.  R.  to  use  or  occupy  it.  Hazen  v.  Bos- 
Co..  100  Mo.  210,  13  S.  W.  680.  ton  &c.  R.  Co.,  2  Gray  (Mass.)  574. 
Rut  SCO  ante,  §  1174.  It  can  not  enter  upon  it,  except  as 

-"  Northern     Central     R.     Co.    v.  a   trespasser,  even  for  the  purpose 

Canton    Co.,   .30   Md.   347;    Dietrich  of  removing  the  rails  which  it  has 

V.  Murdock,  42  Mo.  279,  Justice   v.  placed   there,    and    which,   by   tlieir 

Nesquelioning    Valley    R.    Co.,    87  annexation   to   the    soil,  it   has   lost 

Pa.   St.  28.     See  Richmond   &c.   R.  the  right  to  remove."    But  see  post, 

Co.  V.  Durham  &c.  R.  Co.,  104  N.  §§  1269,  1270. 

Car.  658,    10  S.  E.  659;   note  in  44  29  New  Jersey  &c.  R.  Co.  v.  Van 

L.  R.  A.  (N.  S.)  568.  Syckle,  37  N.  J.  L.  496;  Hudson  v. 

2s  Meriam    v.    Brown,    128    Mass.  Leeds  &c.  R.  Co.,  16  Q.  B.  796.   See 

391.      In    this    case   the   court    said:  also  Galveston  &c.  R.  Co.  v.  Pfeuf- 

"Not    having   filed   any   written   lo-  er.   56  Tex.   66. 
cation,  tlio  corporation  has  not  tak- 


CHAPTER    XXXVIII. 


Al'PROl'RlATlOX    UNDF.R    TllK    KMINEXT    DOMAIX. 


Sec. 

1185.  Definition   and   natin-e   of  the 

eminent    domain. 

1186.  Power    inherent    in    states — 

Extent. 

1187.  Constitutional    provisions 

and   questions. 

1188.  Public    use    and    necessity— 

Who  determines. 

1189.  Effect    of  legislative   determ- 

ination    of    public     use    in 
first    instance. 

1190.  Public    use    and    necessity— 

What      constitutes      public 
use. 

1191.  Public   .  use— General      rules 

and    illustrations. 

1192.  Public    use    and    necessity — 

Continued. 

1193.  Exercise  of  power  by  corpo- 

ration exercising  both  pub- 
lic and  private  functions. 

1194.  Delegation   of  the   power   of 

eminent  domain. 

1195.  Delegation   of   the    power   to 

railroad  companies  —  Ex- 
tent of  authority. 

1196.  Extent   of   authority   —   Dis- 

cretion of  company  to  de- 
termine particular  neces- 
sity. 

1197.  Limits  of   rule   as  to  discre- 

tion—What is  reasonably 
necessary. 

1198.  Company  may  be  compelled 

to  condemn. 

1199.  Construction     of     statutes 

granting  right  to  condemn. 


Sec. 

1200.  Right    of    foreign     and    con- 

solidated     companies      t  o 
condemn. 

1201.  Exercise  of  the  right  by   de 

facto  corporations. 

1202.  Right     to     condemn     where 

road  is  leased  or  in  hands 
of  a  receiver. 

1203.  Right    to    condemn    can    not 

be  delegated  to  contractor 
or  construction  company. 

1204.  Purposes    for    which    a    rail- 

road   company    may    con- 
demn— Generally. 

1205.  J^irposcs   for  which  company 

may  condemn — Illustrative 
cases. 

1206.  Roads  to  mines  or  manufac- 

t  u  r  i  n  g    establishments — 
Right  to  condemn   upheld. 

1207.  Right   to    condemn   for   road 

to    private    enterprise    de- 
nied. 

1208.  Condemnation     of     land     for 

future  use — Second  appro- 
priation. 

1209.  What    may   be    appropriated 

— Generally. 

1210.  Property    of    other    corpora- 

tions. 

1211.  Property  of  state  or  United 

States. 

1212.  Tide  lands. 

1213.  Property  devoted  to  another 

public  use — General  rule. 

1214.  When  right  to  take  property 

already    devoted    to    public 
use  exists. 


670 


671 


APPROPRIATION    UNDER    THE   EMINENT    DOMAIN 


§  1185 


Sec. 
1215. 


1216. 
1217. 

1218. 
1219. 
1220. 
1221. 
1222. 
1223. 
1224. 

1225. 


1226. 
1227. 
1228. 


Riglit  may  depend  on  wheth- 
er two  uses  can  co-exist 
without   impairment. 

Franchises. 

Exclusive  grants  and  fran- 
chises. 

Buildings   on   right  of   wa3^ 

Exempt  propert}'. 

Extent  of  taking. 

Taking  additional   property'. 

Title   or   interest   acquired. 

Reversion    on    abandonment. 

Width  taken  for  right  of 
way. 

Taking  right  of  way  of  an- 
other road — When  not  al- 
lowed. 

When  such  taking  is  allowed. 

Crossing  another  road. 

Condemnation  of  right  of 
way  for  other  purposes — 
Highways. 


Sec. 
1229. 


1230. 


Condenmation  of  riglit  of 
way  for  other  purposes — 
Reservoir  sites  —  Drain- 
age. 


Condemnation  of  right  of 
way  for  other  purposes — 
Telegraph  and  teleplione 
lines. 

1231.  What  constitutes  a  taking — 

Generally. 

1232.  No  taking  wliere  no   proper-     / 

ty  right. 

1233.  What  constitutes   a   taking- 

Illustrative  cases. 

1234.  What  constitutes  a  taking — 

Other  illustrative  cases. 

1235.  Property     damaged     or     in- 

jured—  Constitutional   and 
statutory    provisions. 

1236.  Property  damaged — Illustra- 

tive cases. 


§  1185  (950).  Definition  and  nature  of  the  eminent  domain. — 
In  addition  to  the  modes  of  acquiring-  a  right  of  way,  of  which 
we  have  already  treated,  there  is  another  of  equal  or  greater  im- 
portance, namely,  the  appropriation  of  property  under  the  power 
of  eminent  domain.  Of  this  power  we  shall  treat  generally  in 
the  present  chapter  in  so  far  as  it  affects  railroads.  Eminent 
domain  is  the  right  or  power  of  a  sovereign  state  to  appropriate 
private  property  to  particular  uses  for  the  purpose  of  proinoting 
the  general  welfare.^     It  is  distinguished  from  the  power  of  tax- 


1  See  Pollard  v.  Hagan.  3  How. 
(U.  S.)  212,  11  L.  ed.  565:  Consu- 
mers' &c.  Trust  Co.  V.  Harless,  131 
Tnd.  446,  29  N.  E.  1062.  15  L.  R.  A. 
505:  East  Tennessee  &c.  R.  Co.  v. 
Love,  3  Head  (Tenn.^  63:  Pitts- 
burg &c.  Co.  V.  Benwood  Iron 
Works,  2  L.  R.  A.  680  and  note; 
Mifflin  Bridge  Co.  v.  Juniata  Coun- 
ty, 13  L.  R.  A.  431  and  note.     It  is 


"the  power  of  the  state  to  applj' 
private  property  to  public  purposes 
on  payment  of  just  compensation 
to  the  owner."'  10  Am.  &  Eng. 
Ency.  of  Law  (2d  ed.)  1047.  See 
also  United  States  v.  Jones,  109 
U.  S.  513,  3  Sup.  Ct.  346.  27  L.  ed. 
1015:  Board  of  Health  v.  \'an  Hoe- 
sen.  87  ^lich.  533,  49  N.  W.  894, 
14  L.  R.  A.  114;  Beekman  v.  Sara- 


§  lliSO  KAILUOADS  672 

ation  in  that  its  exercise  operates  upon  an  individual  witliout 
reference  to  what  is  exacted  from  any  other  individual  or  class 
(.f  individuals,  and  without  reference  to  his  ability  to  contribute 
toward  the  necessities  of  government.'-  It  is  also  distinguished 
from  the  police  power,  by  which  the  state  assumes  to  direct  the 
use  that  an  owner  shall  make  of  his  property  so  as  not  to  inter- 
fere with  the  reasonable  use  and  enjoyment  by  others  of  their 
property,-'  and  also  from  the  power,  exercised  by  states,  of  taking 
or  destroying  property  in  the  course  of  actual  warfare,*  for  the 
owner  of  the  property  taken  or  damaged  in  the  exercise  of  these 
powers  is  not  entitled  to  compensation,^  whereas  the  power  of 

toga  &c.  R.  Co..  3  Paige  (N.  Y,)  L.  208:  Hill  v.  liigdon.  5  Ohio  St. 
72,  22  Am.  Dec.  679  and  note;  243:  Hammctt  v.  Philadelphia,  65 
licaly  Lumber  Co.  v.  Morri.s  33  I'a.  St.  146,  3  Am.  Rep.  615;  Wood- 
Wash.  490,  74  Pac.  681,  63  L.  R.  A.  house  v.  Burlington,  47  Vt.  300. 
820,  99  Am.  St.  964;  note  in  102  ■■  Chicago  &c.  R.  Co.  v.  Iowa,  94 
Am.  St.  811.  See  also  definition  U.  S.  155.  24  L.  cd.  94;  Peik  v.  Chi- 
given  in  various  cases  referred  to  cago  &c.  R.  Co..  94  U.  S.  164,  24  L. 
in  note  in  22  L.  R.  A.  (N.  S.)  7  et  ed.  97:  Mnnn  v.  People,  69  111.  80; 
seq.  Where  the  nature  of  the  affirmed  .Mnnn  v.  Illinois,  94  U.  S. 
power  is  elaborately  considered.  113,  24  1..  ed.  77:  Hine  v.  New 
-'Aurora  v.  West,  9  Ind.  74;  Haven,  40  Conn.  478;  Bass  v.  State, 
Griffin  v.  Dngan.  48  I\Iiss.  11;  Peo-  34  I. a.  Ann.  494;  Watertown  v. 
pie  v.  Mayor  &c.  of  Brooklyn.  4  Mayo.  109  Mass.  315,  12  Am.  Rep. 
N.  V.  419.  55  Am.  Dec.  266.  and  694;  Roosevelt  v.  Godard,  52  Barb, 
r.ote;  Cincinnati  &c.  R.  Co.  v.  Clin-  (X.  Y.)  533;  Houston  &c.  R.  Co.  v. 
ton  Co.,  1  Ohio  St.  77,  102;  Ham-  Dallas,  98  Tex.  396,  84  S.  W.  648; 
mett  V.  Philadelphia,  65  Pa.  St.  146,  Davenport  v.  Richmond  City,  81 
3  Am.  Rep.  615.  Special  assess-  Vn.  639.  Forbidding  a  r.ailroad 
ments  for  lictterments  are  also  re-  company  to  use  its  property  in  a 
feral)Ie  to  the  power  of  taxation  way  that  would  be  dangerous  to 
and  not  that  of  eminent  domain.  the  lives  of  people  is  not  a  taking 
Hagar  v.  Board  of  Supervisors,  47  for  iniblic  uses.  Woodruff  v.  New 
Cal.  222;  Davidson  v.  New  Orleans,  York  &c.  R.  Co.,  59  Conn.  63,  20 
96  U.  S.  97,  24  L.  ed.  616;  White  Atl.  17,  45  Am.  &  Eng.  R.  Cas.  109, 
V.  People.  94  111.  604;  Baltimore  v.  112,   note. 

Greenmount  Cemetery.  7  Md.  517;  '  B.ell   v.  Louisville  &c.  R.   Co..   1 

Williams   v.   Detroit,  2    :MicIi.    560;  P.ush   ( Ky.)   404,  89  Am.  Dec.  632; 

Macon    v.    Patty,   57   Miss.   378,   34  h'ord  v.   Surget.  46  IMiss.  130. 

Am.  Rep.  451;  Garrett  v.  St.  Louis.  =  See    cases    in    preceding    notes; 

25  Mo.  505.  69  Am.  Dec.  475;  State  also  Aitken  v.  Wells  River,  70  Vt. 

V.  Blake,  36  N.  J.  L.  442,  35  N.  J.  308,  40  Atl.  829,  41    L.   R.   A.  566, 


073 


APPROPRIATION    UNDER    THE    EMINENT    DOMAIN 


§  1185 


eminent  domain  can  be  effectively  exercised  only  where  due 
compensation  is  made.  But  the  power  of  eminent  domain  em- 
braces all  cases  where,  by  authority  of  the  state,  and  for  the 
public  good,  the  property  of  the  individual  is  taken,  without  his 
consent,  for  the  purpose  of  being  devoted  to  some  particular  use, 
either  by  the  state  itself  or  by  a  corporation,  public  or  private, 
or  by  a  private  citizen,*  provided  only  that  the  use  be  a  public 


67  Am.  St.  672.  And  the  right  to 
destroy  propertj'  to  prevent  the 
spreading  of  a  fire,  the  ravages  of 
a  pestilence  or  other  public  calam- 
ity, is  distinct  from  the  right  of 
eminent  domain,  and  the  owner 
can  not  claim  compensation  for 
property  destroyed,  even  though 
the  persons  destroying  it  acted  un- 
der authority  of  statute.  American 
Print  Works  v.  Lawrence,  23  N. 
J.  L.  9  and  590.  615. 

6  Westport  &c.  Co.  v.  Thomas, 
175  Ind.  319,  94  N.  E.  406.  The 
right  which  belongs  to  the  society 
or  to  the  sovereign,  of  disposing, 
in  case  of  necessity,  and  for  the 
public  safety,  of  all  the  wealth  in 
the  state,  is  called  the  eminent  do- 
main. Vattel,  B.  I.  C.  20.  §  244: 
Pollard  v.  Hagan,  3  How.  (U.  S.) 
212,  11  L.  ed.  565.  See  Enfield  Toll 
Bridge  v.  Hartford  &c.  R.  Co.,  17 
Conn.  40,  42  Am.  Dec.  716  and 
note;  Todd  v.  Austin,  34  Conn.  78: 
Evansville  &c.  R.  Co.  v.  Grady,  6 
Bush  (Ky.)  144;  Nichols  v.  Somer- 
set &c.  R.  Co.,  43  Maine  356; 
Brown  v.  Beatty,  34  Miss.  227,  69 
Am.  Dec.  389;  Orr  v.  Quimby.  54 
N.  H.  590,  611;  Giesy  v.  Cincinnati 
&c.  R.  Co.,  4  Ohio  St.  308:  Edge- 
wood  R.  Company's  Appeal,  79  Pa. 
St.  257;  Beekman  v.  Saratoga  &c. 
R.  Co..  3  Paige  (N.  Y.)  45,  22  Am. 
Dec.     679     and     note;     Freedle     v. 


North  Carolina  R.  Co.,  4  Jones 
(N.  Car.)  L.  89;  McLauchlin  v. 
Charlotte  R.  Co.,  5  Rich.  (S.  Car.) 
583.  Any  substantial  interference 
with  private  property  which  de- 
stroys or  materially  lessens  its  val- 
ue, or  by  which  the  owner's  right 
to  its  use  and  enjoyment  is  in  any 
substantial  degree  abridged  or  de- 
stroj'^ed,  is  a  taking,  within  the 
constitutional  provision  that  pri- 
vate property  shall  not  be  taken 
or  damaged  for  public  use  without 
just  compensation,  to  the  extent  of 
the  damage  suffered,  even  though 
the  title  and  possession  of  the 
owner  remain  undisturbed.  Stock- 
dale  V.  Rio  Grande  Western  R. 
Co.,  28  Utah  201,  11  Pac.  849.  The 
property  of  a  railroad  company  is 
not  arbitrarily  taken  from  it  with- 
out compensation  by  a  statute 
which  imposed  upon  it  the  burden 
of  showing,  in  proceedings  to  com- 
pel it  to  provide  a  station  at  an 
incorporated  village  on  its  line, 
that  the  establishment  of  a  station 
there  is  unreasonable  and  unneces- 
sary. Judgment,  State  v.  Minne- 
apolis &c.  R.  Co.,  87  Minn.  195,  91 
N.  W.  465,  affirmed  Minneapolis 
&c.  R.  Co.  V.  Minnesota,  193  U.  S. 
^Z,  24  Sup.  Ct.  396,  48  L.  ed.  614. 
A  statute  requiring  railroads  to 
keep  their  rights  of  way  clear  of 
dry    vegetation    and    undergrowth, 


§1185 


RAILROADS 


674 


one.''  The  establishment  of  a  railroad  as  a  purely  private  enter- 
prise can  not  be  aided  by  the  power  of  eminent  domain.^  The 
power  of  eminent  domain  has  existed  in  all  ag-es  as  an  acknowl- 
edged attribute  of  sovereignty.^    It  is  inherent  in  every  sovereign 


so  as  to  prevent  fires,  and  provid- 
ing: that  any  corporation  failing  to 
comply  therewith  sliall  incur  a  pen- 
alty and  be  liable  for  all  damages 
occasioned  by  such  neglect,  does 
not  violate  the  constitutional  inhi- 
bitions against  taking  private  prop- 
erty for  public  use  without  compen- 
sation. McFarland  v.  Mississippi 
River  &c.  R.  Co..  175  Mo.  422.  75 
S.  W.  152.  See  also  to  same  eflfect, 
Chicago  &c.  Ry.  Co.  v.  Anderson, 
182  Tnd.  140,  105  N.  E.  49. 

"  Boom  Co.  v.  Patterson,  98  U. 
S.  403.  25  L.  ed.  206;  Chicago  &c. 
C.  Co.  V.  Wiltse.  116  111.  449,  6  N. 
E.  49:  County  Court  v.  Griswold. 
58  Mo.  175:  Giesy  v.  Cincinnati  &c. 
R.  Co..  4  Ohio  St.  308.  It  rests  in 
the  wisdom  of  the  legislature  to 
determine  when,  and  in  what  man- 
ner, the  public  necessities  require 
its  exercise,  and  with  the  reason- 
ableness of  the  exercise  of  that  dis- 
cretion the  courts  will  not  inter- 
fere. Swan  v.  Williams,  2  Mich. 
427;  Central  &c.  R.  Co.  v.  Atch- 
ison &c.  R.  Co..  28  Kans.  453;  Wil- 
kin V.  First  Div.  St.  Paul  &c.  R. 
Co.,  16  Minn.  271;  Seacomb  v.  Alil- 
waukee  &c.  R.  Co.,  29  How.  Prac. 
N.  Y.  75;  Bachler's  Appeal,  90  Pa. 
St.  207.  Some  courts  consider  the 
necessity  for  the  taking  as  an  im- 
portant element  in  deciding  wheth- 
er the  property  is  to  be  employed 
for  a  public  use.  And  that  to  justi- 
fy the  exercise  of  the  power,  "it 
must  lie  impossible,  or  very  diffi- 
cult,  at    least,   to    secure    the    same 


public  uses  and  purposes  in  any 
other  way  than  by  authorizing  the 
condemnation  of  private  property." 
Varner  v.  Martin,  21  W.  Va.  534: 
Jordan  v.  Woodward,  40  Maine 
317:  Ryerson  v.  Brown,  35  Mich. 
3n.  24  Am.  Rep.  564:  Dayton  Min. 
Co.  V.  Seawell,  11  Nev.  394.  But 
this  is  decidely  opposed  to  the 
weight  of  authority.  It  is  no  ob- 
jection to  the  exercise  of  the 
power,  that  lands  equally  feasible 
could  be  obtained  by  purchase. 
Giesy  v.  Cincinnati  &c.  R.  Co.,  4 
Ohio  St.  308.  It  has  been  held  that 
a  law  requiring  a  railroad  company 
which  has  purchased  the  property 
of  another  railroad  company  at  a 
mortgage  foreclosure  sale  to  pay 
a  judgment  against  the  latter  com- 
pany is  an  attempt  to  require  pri- 
vate property  to  a  private  purpose. 
Woodward  v.  Central  Vermont  R. 
Co..   180  Mass.  599.  62  N.   E.   1051. 

''  Maginnis  v.  Knickerbocker  Ice 
Co..  112  Wis.  385,  88  N.  W.  300. 
69  I..  R.  A.  833  and  note.  Nor  can 
a  dul}-  chartered  commercial  rail- 
road exercise  the  power  of  eminent 
domain  to  acquire  property  for  a 
private  use.  Bradley  v.  Lithonia 
&c.  R.  Co.,  141  Ga.  741,  82  S.  E. 
138:  See  post,  §§  1204,  1207. 

^  "It  seems  to  have  been  accu- 
rately defined,  and  distinctly  recog- 
nized, in  the  Roman  empire,  in  the 
days  of  Augustus,  and  his  imme- 
diate successors,  although,  from 
considerations  of  policy  and  per- 
sonal   influence    and    esteem,    thev 


675 


APPROPRIATION    UNDER    THE   EMINENT   DOMAIN 


§1185 


government/"  and  is  not  conferred  by  constitutions,  but  is 
limited  and  regulated  by  them."  It  can  not  be  surrendered  by 
grant  or  contract,"  since  its  continued  exercise  is  essential  to 


did  not  always  choose  to  exercise 
the  ri,2:ht,  to  demolish  the  dwell- 
ings of  the  inhabitants,  either  in 
the  construction  of  public  roads  or 
aqueducts,  or  ornamental  columns, 
but  to  purchase  the  right  of  way." 
1  Redfield  Rail.,  p.  230.  See  also 
Scudder  v.  Trenton  &c.  Co..  1  N.  J. 
Eq.  694.  23  Am.  Dec.  756. 

10  United  States  v.  Jones,  109  U. 
S.  513.  3  Sup.  Ct.  346.  27  L.  ed. 
1015:  Hollister  v.  State,  9  Idaho  8, 
71  Pac.  541;  Penn.  Mut.  &c.  Ins. 
Co.  V.  Heiss.  141  111.  35,  31  N.  E. 
138,  33  Am.  St.  273;  Water  Works 
Co.  V.  Burkhart,  41  Ind.  364;  Noll 
V.  Dubuque  &c.  R.  Co.,  32  Iowa 
66:  Weir  v.  St.  Paul  &c.  R.  Co.,  18 
Minn.  155;  Brown  v.  Beatty.  34 
Miss.  227,  69  Am.  Dec.  389:  Chica- 
go &c.  R.  Co.  V.  McCovey,  273  Mo. 
29,  200  S.  W.  59;  Beekman  v.  Sara- 
toga &c.  R.  Co.,  3  Paige  (N.  Y.) 
45,  22  Am.  Dec.  679  and  note: 
White  V.  Nashville  &c.  R.  Co.,  7 
Heisk.  (Tenn.)  518;  Baltimore  &c. 
R.  Co.  V.  Pittsburgh  etc.  R.  Co., 
17  W.  Va.  812,  841.  Being  an 
attribute  of  sovereignty,  the  power 
of  eminent  domain  does  not  in- 
here in  a  territorial  government. 
Pratt  V.  Brown,  3  Wis.  603;  New- 
comb  V.  Smith.  1  Chand.  (Wis.)  71. 
But  a  territorj'  may  exercise  the 
power  by  express  delegation  of 
authority  from  congress.  Warren 
V.  First  Div.  St.  Paul  &c.  R.  Co., 
IS  Minn.  384.  The  Cherokee  Na- 
tion is  not  a  sovereign  state  and, 
therefore,  does  not  possess  the 
power  of  eminent  domain.     Chero- 


kee Nation  v.  Southern  Kansas  R. 
Co.,  135  U.'S.  641.  10  Sup.  Ct.  965, 
34  L.  ed.  295. 

11  Elliott  Roads  and  Streets  (3d 
ed.),  §  204,  and  other  authorities 
there  cited.  See  also  Fort  Leav- 
enworth R.  Co.  V.  Lowe.  114  U.  S. 
525,  5  Sup.  Ct.  995,  29  L.  ed.  264; 
West  River  Bridge  Co.  v.  Dix,  6 
How.  (U.  S.)  507,  12  L.  ed.  535; 
United  States  v.  Jones,  109  U.  S. 
518,  3  Sup.  Ct.  346,  27  L.  ed.  1017; 
Central  Branch  &c.  R.  Co.  v.  Atchi- 
son &c.  R.  Co.,  28  Kans.  453;  10 
Am.  &  Eng.  R.  Cas.  528;  note  in 
22  L.  R.  A.  (N.  S.)  7-17.  Blood- 
good  V.  Mohawk  &c.  R.  Co..  18 
Wend.  (N.  Y.)  9,  31  Am.  Dec.  313; 
In  re  Rochester,  224  N.  Y.  659,  121 
N.  E.  859. 

12  Elliott  Roads  &  Streets  (3d 
ed.),  §  209;  Greenleaf's  Cruise  Real 
Property,  Vol.  II.  p.  67,  note;  Long 
Island  Water  Supply  Co.  v.  Brook- 
lyn, 166  U.  S.  685,  17  Sup.  Ct.  718, 
41  L.  ed.  1165;  Alabama  &c.  R.  Co. 
V.  Kenney,  39  Ala.  307;  Illinois  &c. 
Canal  v.  Chicago  &c.  R.  Co.,  14 
111.  314;  Baltimore  &c.  Turnpike 
Co.  V.  Union  R.  Co.,  35  Md.  224, 
6  Am.  Rep.  397;  People  v.  Mayor 
&c.  of  New  York,  32  Barb.  (N.  Y.) 
102.  See  Eastern  R.  Co.  v.  Boston 
&c.  R.  Co.,  Ill  Mass.  125,  15  Am. 
Rep.  13:  Lock  Haven  Bridge  Co. 
V.  Clinton  Co.,  157  Pa.  St.  379.  27 
Atl.  726.  In  his  work  on  Constitu- 
tional Limitations  Judge  Cooley 
says:  "When  the  existence  of  a 
particular  power  in  the  govern- 
ment is  recognized  on  the  ground 


<•  1186 


RAILROADS 


676 


the  existence  of  organized  society/^ 

§  1186.  Power  inherent  in  states — Extent. — This  power  exists 
in  each  of  the  states  of  the  Union  whether  it  is  expressly  con- 
ferred by  the  constitution  or  not/*  and  may  extend  to  taking 
pul)lic  lands  of  the  United  States  that  lie  within  the  borders  of 
the  state  exercising  the  power.'-  And  it  may  also  be  exercised 
by  the  United  States  government  in  the  discharge  of  constitu- 
tional powers  to  secure  land  for  military  roads,  light  houses,  and 
other  conveniences  and  necessities  of  government.'""'     It  extends 


of  necessity,  no  delegation  of  the 
legislative  power  of  the  people  can 
be  lield  to  vest  authority  in  the 
department  which  holds  it  in  trust, 
to  bargain  away  such  power,  or  to 
so  tie  up  the  hands  of  the  govern- 
ment as  to  preclude  its  repeated 
exercise,  as  often  and  under  such 
circumstances  as  the  needs  of  the 
government  may  require."  Cooley 
Const.  T.im.   (7th  ed.)   754. 

13  Raleigh  &c.  R.  Co.  v.  Davis, 
2  Dev.  &  B.  Law  (N.  Car.)  451. 
"The  right  of  eminent  domain,  that 
is,  the  ultimate  right  of  the  sov- 
ereign power  to  appropriate,  not 
only  the  public  property,  but  the 
private  property  of  all  the  citizens 
within  the  territorial  sovereignty, 
to  public  purposes,  is  inherent  in 
the  government;  without  this 
power,  the  state  could  not  establish 
and  open  a  highway  of  any  kind. 
No  railroad,  canal  or  turnpike 
could  be  constructed;  no  ground 
upon  which  to  build  a  public  build- 
ing could  be  procured  by  the  state 
or  government,  in  any  other  way 
than  by  contract  with  the  owner." 
Water  Works  Co.  v.  P)urkhart,  41 
Ind.  364,  per  Osborn,  J. 

14  Boom   Co.  V.  Patterson,  98  U. 
S.    403,    25    L.    ed.    206:    Brown    v. 


Bcatty.  34  Miss.  227,  69  .\m.  Dec. 
389;  State  v.  Superior  Court,  11 
Wash.  585,  137  Pac.  994;  Winona 
&c.  R.  Co.  V.  Watertown,  4  S.  Dak. 
323,  56  N.  W.  1077.  See  also  Ala- 
bama Interstate  Power  Co.  v.  Ver- 
non-Woodberry  &c.  Co.,  186  .Ala. 
622,  65  So.  287. 

15  United  States  v.  Railroad 
Bridge  Co.,  6  McL.  (U.  S.)  517. 
See   and   compare  §  1201. 

i«  Kohl    V.    United    States,  91    U. 
S.  367;  23  T..  ed.  449;  United  States 
V.  Gettysburg  &c.  R.  Co.,  160  U.  S 
668,  16  Sup.  Ct.  427,  40  L.  ed.  576 
Chappcll   V.    United    States,   160  U 
S.   499,    16   Sup.   Ct.   397,  40   L.   ed 
510:    United    States    v.    Oregon    R 
&c.    Co.,    16    Fed.    524,    14   Am.    & 
Eng.  R.  Cas.  23;  Nahant  v.  United 
States,  .136    Fed.    273;    People    v. 
Humphrey,    23    Mich.    471,    9    Am. 
Rep.  94;  United  States,  Matter  of, 
96  N.  Y.  227;  Darlington  v.  United 
States,  82  Pa.  St.  382,  22  Am.  Rep. 
766;  Elliott  Roads  and  Streets  (3d 
ed.),  §§  207,  208.     But  the  United 
States  may,  and  usually  does,  make 
use    of    the    officers,    tribunals    and 
institutions     of     the     state     as     its 
agents,    in    the    accomplishment    of 
its    governmental  functions,  where 
this  can  be  done  with  the  consent 


C77 


APPROPRIATION    UNDER    THE    EMINENT    DOMAIN 


§1186 


to  taking  property  for  any  ])urpose  and  in  any  manner,  by  which 
the  general  welfare  may  be  advanced,  excepting  so  far  as  it  is 
limited  bv  constitntional  restrictions.^' 


of  the  state.  And,  in  the  al)sence 
nf  any  declaration  to  the  contrary, 
tlie  consent  of  the  state  will  be 
presumed.  Ft.  Leavenworth  R.  Co. 
V.  Lowe,  114  U.  S.  525-532,  5  Sup. 
Ct.  995,  29  L.  ed.  264;  United  States 
V.  Jones,  109  U.  S.  513,  3  Sup.  Ct. 
346.  27  L.  ed.  1015.  And  in  some 
cases  it  has  been  held  that  the 
legislature  can  delegate  to  the 
agent  of  the  United  States  the 
right  of  eminent  domain  for  the 
purpose  of  obtaining  land  for  a 
site  for  a  post-office  or  other  pub- 
lic buildings.  Burt  v.  Merchants' 
Ins.  Co.,  106  Mass.  356,  8  Am.  Rep. 
339:  Matter  of  United  States,  96 
N.  Y.  227:  Gilmer  v.  Lime  Point, 
18  Cal.  229.  Reddall  v.  Bryan,  14 
Md.  444,  74  Am.  Dec.  550.  There 
is  strong  authority,  however,  for 
holding  that  a  state  can  not  exer- 
cise the  power  of  eminent  domain 
on  behalf  of  another  sovereignty, 
and  that  condemnation  proceedings 
on  behalf  of  the  United  States 
must  be  prosecuted  by  authority 
of  its  own  laws.  People  v. 
Humphrey,  23  Mich.  471,  9  Am. 
Rep.  94,  per  Cooley.  J.:  Darlington 
V  United  States,  82  Pa.  St.  382, 
22  Am.  Rep.  766:  Jones  v.  United 
States.  Wis.  385,  4  N.  W.  519. 

1^  The  accepted  theory  upon  this 
subject  appears  to  be  this:  In 
every  sovereign  state  there  resides 
an  absolute  and  uncontrolled  power 
of  legislation.  In  Great  Britain 
this  complete  power  rests  in  the 
parliament:  in  the  American  states 
it  resides  in  the  people  themselves 


as  an  organized  body  politic.  But 
the  people,  by  creating  the  consti- 
tution nf  the  L'nited  States,  have 
delegated  this  power  as  to  certain 
subjects,  and  under  certain  restric- 
tions, to  the  congress  of  the  Union, 
and  that  portion  they  can  not  re- 
^tnne,  except  as  it  may  be  done 
through  amendment  of  the  national 
constitution.  For  the  exercise  of 
the  legislative  power,  subject  to 
this  limitation,  they  create,  by 
their  state  constitution,  a  legisla- 
tive department  upon  which  they 
confer  it:  and  granting  it  in  gen- 
eral terms,  they  must  be  under- 
stood to  grant  the  whole  legisla- 
tive power  which  they  possessed, 
except  so  far  as  at  the  same  time 
they  saw  fit  to  impose  restrictions. 
While,  therefore,  the  parliament  of 
Britain  possesses  completely  the 
absolute  and  uncontrolled  power 
of  legislation,  the  legislative  bodies 
of  the  American  states  possess  the 
same  power  except,  first,  as  it  may 
have  been  limited  by  the  constitu- 
tion of  the  Fruited  States:  and, 
second,  as  it  may  have  been  limited 
by  the  constitution  of  the  state.  A 
legislative  act  can  not,  therefore, 
be  declared  void,  unless  its  con- 
flict with  one  of  these  instruments 
can  be  pointed  otit.  Cooley  Const. 
Limit.  C7th  ed.^  241:  L'nited  States 
V.  Jones,  109  U.  S.  518.  3  Sup.  Ct. 
346,  27  L.  ed.  1017:  Hobart  v.  Su- 
pervisors, 17  Cal.  23:  Derby  Tpk. 
Co.  V.  Parks.  10  Conn.  522,  543,  27 
Am.  Dec.  700:  Gotten  v.  County 
Commissioners,  6  Fla.  610;  Macon 


5j  1187 


RAILROADS 


678 


§  1187   (951).     Constitutional  provisions  and  questions. — The 

constitution  of  the  United  States^®  and  the  constitutions  of  nearly 


&c.  R.  Co.  V.  Davis.  13  Ga.  68: 
Chicago  &c.  R.  Co.  v.  Smith,  62 
111.  268.  14  Am.  Rep.  99:  Challiss 
V.  Atchi.son  &c.  R.  Co.,  16  Kans. 
117:  Inliabitants  of  Durham  v. 
Lcwiston.  4  ATainc  140;  Norris  v. 
Abingdon  .Xcadem}-,  7  Gill  &  J. 
(Md.)  7:  Williams  v.  Detroit,  2 
Mich.  560;  Winona  &c.  R.  Co.  v. 
Waldron,  11  Minn.  515.  539,  88 
Am.  Dec.  100  and  note:  Centra! 
R.  Co.  T.  Hetfield.  29  N.  J.  L.  206: 
People  V.  New  York  Cent.  R.  Co., 
34  Rarb.  (N.  Y.)  123.  138:  People 
V.  Supervisors,  17  X.  Y.  235:  Ra- 
leigh &c.  R.  Co.  V.  Davis,  2  Dev. 
&  B.  Law  (N.  Car.)  451;  Butler's 
Appeal,  73  Pa.  St.  448;  Yancy  v. 
Yancy,  5  Heisk.  (Tenn.)  353,  13 
Am.  Rep.  5;  Gentry  v.  Griffith,  27 
Tex.  461;  Danville  v.  Pace,  25  Grat. 
(Va.)  1,  18  Am.  Rep.  663:  Balti- 
more &c.  R.  Co.  V.  Pittsburgh  &c. 
R.  Co.,  17  W.  Va.  812,  841.  In  some 
cases  it  is  said  that  the  only  limi- 
tation upon  the  exercise  of  the 
ri.ulit  of  eminent  domain — the 
power  of  the  state  to  take  or  au- 
thorize the  taking  of  private  prop- 
erty for  public  use — is  that  con- 
tained in  the  state  constitutions. 
Wilson  V.  Baltimore  &c.  R.  Co.,  5 
Del.  Ch.  524.  But  see  Elliott  Roads 
and  Streets,  142.  For  cases  hold- 
ing that  the  legislature  can  not 
pass  any  law  opposed  to  natural 
ri.ght  and  justice,  see  Bowman  v. 
Middleton,  1  Bay  (S.  Car.),  252; 
Terrett  v.  Taylor,  9  Cranch  (U.  S.) 
43,  3  L.  ed.  650,  per  Story,  J.:  Cairo 
See.  R.  Co.  v.  Turner,  31  Ark.  494, 
25   Am.   Rep.  564:   Doe  v.   Georgia 


iv*.  &c.  Co..  1  Ga.  524:  Harness  v. 
Chesapeake  &c.  Canal  Co.,  1  Md. 
Ch.  248:  Petition  of  Mount  Wash- 
ington Road  Co.,  35  N.  II.  134; 
riradsliaw  \-  Rodgers,  20  Johns. 
(N.  Y.)  103:  Johnston  v.  Rankin, 
70  X.  Car.  550.  The  legislature  un- 
dvr  the  power  of  eminent  domain 
may  authorize  the  condemnation  of 
the  stock  of  minority  or  dissenting 
stockholders  in  railroad  corpora- 
tions and  statutes  authorizing  this 
procedure  in  furtherance  of  a  pub- 
lic object  are  not  open  to  the  ob- 
jection that  they  impair  tlie  obliga- 
tion of  contracts.  Spencer  v.  Sea- 
board Air  Line  R.  Co.,  137  N.  Car. 
107,  49  S.  E.  96:  Offield  v.  New 
York  &c.  R.  Co.,  203  U.  S.  372,  27 
Sup.  Ct.  72,  51  E.  ed.  231.  The 
vast  extent  of  this  power  as  to 
property  that  may  be  taken  as  well 
as  in  other  respects  is  shown  in  the 
note  in  22  L.  R.  A.  (N.  S.)  1,  where 
many    other    cases    are    cited. 

18  Amendments  of  1791,  Art.  5. 
The  provision  in  the  constitution  of 
the  United  States  that  private  prop- 
erty shall  not  be  taken  for  public 
use  without  just  compensation,  ap- 
plies only  to  the  operations  of  the 
federal  government,  and  is  not  a 
limitation  upon  the  power  of  the 
states.  Pumpelly  v.  Green  Bay 
Co.,  13  Wall.  (U.  S.)  166,  20  L. 
ed.  557;  Barron  v.  Baltimore,  7  Pet. 
(U.  S.)  243,  8  L.  ed.  672;  Winous 
Point  Shooting  Club  v.  Caspersen, 
193  U.  S.  189,  24  Sup.  Ct.  431,  48 
E.  ed.  675;  Bemis  v.  Guirl  Drain- 
age Co.,  182  Ind.  36,  105  N.  E.  496; 
Cairo    &c.     R.    Co.    v.    Turner,    31 


679 


APPROPRIATION    UNDER    THE    EMINENT    DOMAIN 


§118' 


all  the  states  of  the  Union  require  a  just  compensation  to  be 
made  for  all  property  taken  for  public  use,  and  most  of  them 
require  the  compensation  to  be  paid  or  secured  before  the  prop- 
erty is  taken. ^"  It  can  only  be  taken  pursuant  to  "the  law  of 
the  land."  and.  as  constitutions  do  not  create  or  execute  the 
rig-ht  of  eminent  domain,  there  must  be  a  statute,  in  some  way 
authorizing  the  seizure.-"  but,  when  a  valid  statute  is  enacted 
conferring"  the  right  to  condemn,  and  providing  for  "due  process 
of  law,"  it  stands  as  the  law  of  the  land."  The  constitutional 
provision  that  "the  right  of  trial  by  jury  shall  remain  inviolate" 
does  not  require  that  a  jury  trial  should  be  provided  for  in  con- 


Ark.  494.  25  Am.  Rep.  564;  Parham 
V.  Justices.  9  Ga.  341 :  Renthorp  v. 
Boiirg.  4  Alart.  (O.  S.)  (La.)  97; 
Martin  v.  Dix.  52  Miss.  53,  24  Am. 
Rep.  661:  Concord  R.  Co.  v. 
Greely.  17  N.  H.  47;  Livingston  v. 
New  York,  8  Wend.  (N.  Y.)  85. 
22  Am.  Dec.  622  and  note;  Raleigh. 
&c.  R.  Co.  V.  Davis,  2  Dev.  &  B. 
L.  (N.  Car.)  451.  Contra  Doe  v. 
Georgia  R.  &c.  Co..  1  Ga.  524; 
Scudder  v.  Trenton  &c.  Co.,  1  N. 
J.  Eq.  694.  23  Am.  Dec.  756.  The 
fourteenth  amendment,  however, 
does  seem  to  apply  to  state  action. 
Elliott  Roads  and  Streets  (3rd  ed.), 
§  212,  note;  See  Davidson  v.  New 
Orleans,  96  U.  S.  97.  24  L.  ed.  616; 
Kentucky  Railroad  Tax  Cases.  115 
U.  S.  321.  6  Sup.  Ct.  57,  29  L.  ed. 
414;  Chappell  v.  United  States,  160 
U.  S.  499.  16  Sup.  Ct.  397,  40  L.  ed. 
510;  Chicago  &c.  R.  Co.  v.  Chicago. 
166  U.  S.  226.  17  Sup.  Ct.  581,  41 
L.  cd.  979;  Madisonville  Tract.  Co. 
V.  St.  Bernard  Min.  Co.,  196  U.  S. 
239.  25  Sup.  Ct.  251.  256,  49  L.  ed. 
462;  Scott  v.  Toledo,  36  Fed.  385. 
1  L.  R.  A.  688;  Nahant  v.  United 
States.  136  Fed.  273,  and  compare 
Eldridge  v.  Binghamton,  120  N.  Y. 


309,  24  N.  E.  462;  Wilson  v.  Balti- 
more &c.  R.  Co..  5  Del.  Ch.  524. 

^"  It  is  not  competent  for  tlie 
legislature  to  prescribe  the  amount 
of  compensation  to  be  paid  for  the 
propert}-.  What  is  "just  compen- 
sation" is  a  judicial  question. 
Pennsylvania  R.  Co.  v.  Baltimore 
&c.  R.  Co.,  60  Md.  263. 

-^  Chicago  &c.  Railroad  Co.  v. 
Lake.  71  Til.  333:  Gillette  v.  x\u- 
rora  R.  Co..  228  111.  261,  81  N.  E. 
1005;  Allen  v.  Jones,  47  Ind.  438; 
Sisson  V.  Buena  Vista  Co.,  128 
Iowa  442,  104  N.  W.  454.  70  L.  R. 
A.  440;  Phillips  v.  Dunkirk  &c.  R. 
Co..  78  Pa.  St.  177;  Galveston  &c. 
R.  Co.  V.  Mud  Creek  &c.  Co..  1 
Tex.  App.  (Civ.  Cas.)  169;  Elliott 
Roads  and  Streets  (3rd  ed.),  §§  217. 
218. 

21  Secombe  v.  Railroad  Co.,  23 
Wall.  (U.  S.)  108.  23  L.  ed.  67: 
Alexander  &c.  R.  Co.  v.  .\le.xander 
&c.  R.  Co.,  75  Va.  780,  40  Am. 
Rep.  743  and  note;  Cooley's  Const. 
Lim.  (7th  ed.")  760.  See  also  note 
to  Bank  v.  Cooper.  24  Am.  Dec. 
537:  Barr  v.  New  Brunswick.  67 
Fed.  402. 


.^  1188 


RAILROADS 


680 


clemnation  cases,  and  the  legislature  may  deny  a  trial  by  jurv.^^ 
But  the  constitutions  of  some  of  the  states  expressly  require 
that  the  compensation  shall  be  determined  by  a  jury.  The  con- 
stitutional provision  against  the  taking  of  property  for  a  public 
use  without  compensation  does  not  operate  to  prevent  the  ac- 
quisition of  an  easement  in  a  right  of  way  by  adverse  posses- 
sion.-^ 

§1188  (952).  Public  use  and  necessity — Who  determines. — 
The  courts  almost  uniformly  agree  in  holding  that  property  can 
only  be  taken  under  power  of  eminent  domain  for  some  use 
in  which  the  public  interest  is  involved/'*  unless  the  power  to 
condemn  property  for  private  uses  has  been  expressly  delegated 


22  Backus  V.  Lebanon,  11  N.  H. 
19.  35  Am.  Dec.  466:  Copp  v.  Hen- 
niker,  55  X.  H.  179,  20  Am.  Rep. 
194:  Scudder  v.  Trenton  &c.  Co.. 
1  N.  J.  Eq.  694,  23  Am.  Dec.  756: 
Beekman  v.  Saratoga  &c.  R.  Co., 
3  Paige  (N.  Y.)  45,  22  Am.  Dec. 
679:  Willyard  v.  Hamilton,  7  Ohio 
111,  30  Am.  Dec.  195;  Elliott  Roads 
and  Streets  C3rd  ed.),  §  220.  See 
also  Long  Island  Water  Supply- 
Co.  V.  Brooklyn,  166  U.  S.  685,  17 
Sup.  Ct.  718,  41  L.  ed.  1165;  United 
States  V.  Engerman,  46  Fed.  176; 
State  V.  Lyle,  100  N.  Car.  497,  6 
S.  E.  379. 

23  Boyce  v.  Missouri  Pacific  R. 
Co.,  168  Mo.  583.  68  S.  W.  920,  58 
L.  R.  A.  442. 

2*  Sadler  v.  Langham,  34  Ala. 
311;  Lorenz  v.  Jacob,  63  Cal.  73; 
United  States  v.  Baltimore  &c.  R. 
Co..  27  App.  (D.  C.)  105;  Hand 
Gold  Min.  Co.  v.  Parker,  59  Ga. 
419;  Bankhead  v.  Brown,  25  Iowa 
540;  Bangor  R.  Co.  v.  McComb,  60 
Maine  290;  New  Central  Coal  Co. 
V.  George's  Creek  Coal  &c.  Co.,  37 
Md.  537;  Brown  v.  Beatty,  34  Miss. 


227,  69  Am.  Dec.  389;  Dickey  v. 
Tennison,  27  Mo.  373;  Concord  R. 
Co.  V.  Greely,  17  N.  H.  47;  Blood- 
good  V.  Mohawk  &c.  R.  Co.,  18 
Wend.  (N.  Y.)  9,  56,  31  Am.  Dec. 
313  and  note;  Beekman  v.  Railroad 
Co.,  3  Paige  (N.  Y.)  45,  22  Am. 
Dec.  679  and  note;  McQuillen  v. 
Hatton,  42  Ohio  St.  202;  Witham 
V.  Osborn,  4  Ore.  318,  18  Am.  Rep. 
287;  Waddell's  Appeal,  84  Pa.  St. 
90;  Tyler  v.  Beacher,  44  Vt.  648;  8 
.^m.  Rep.  398;  Valley  City  Salt  Co. 
V.  Brown,  7  W.  Va.  191;  Varner  v. 
Martin,  21  W.  Va.  534;  Osborn  v. 
Hart,  24  Wis.  89,  1  Am.  Rep.  161. 
Western  Union  Tel.  Co.  v.  Penn- 
sylvania R.  Co.,  123  Fed.  33.  ]\Ianj' 
additional  authorities  to  the  same 
effect  are  cited  in  the  note  in  22 
L.  R.  A.  (N.  S.)  24-35.  The  power 
can  only  be  exercised  to  supply 
some  existing  public  need  or  to 
gain  some  present  public  advan- 
tage; not  with  a  view  to  contingent 
results  dependent  on  a  projected 
speculation.  Edgewood  R.  Co.'s 
Appeal,  79   Pa.  St.  257. 


681 


APPROPRIATIOX    UNDER    THE    EMIXEXT   DOMAIN' 


§1188 


by  a  provision  in  the  constitution.-"'  They  also  as^ree  that  the 
power  of  eminent  domain  can  only  be  exercised  to  meet  some 
public  necessity;  that  it  is  created  by  and  grows  out  of  an  ex- 
isting' necessity.  lUit  the  legislature  is  the  proper  authority  to 
determine  whether  a  necessity  exists  for  the  exercise  of  the 
power,  and  its  determination  of  the  question,  within  constitu- 
tional limits,  is  conclusive.-'"     The  propriety  of  the  exercise  of  the 


-'^  In  Coster  v.  Tide  Water  Co., 
18  N.  J.  Eq.  54,  63,  the  chancellor 
says:  "There  is  no  prohibition  in 
the  constitution  of  this  state,  or 
in  an}'  of  the  state  constitutions, 
that  I  know  of,  against  taking  pri- 
vate property  for  private  use.  But 
the  power  is  nowhere  granted  to 
the  legislature.  The  constitution 
vests  in  the  senate  and  general  as- 
sembly the  legislative  or  law-mak- 
ing power.  They  can  make  laws, 
the  rules  prescribed  to  govern  our 
civil  conduct.  They  are  not  sover- 
eign in  all  things;  the  executive 
and  judicial  power  is  not  vested 
in  them.  Taking  the  property  of 
one  man  and  giving  it  to  another 
is  not  making  a  law  or  rule  of 
action,  it  is  not  legislation,  it  is 
simply  robbery."  The  provision  of 
the  Colorado  constitution,  recog- 
nizing the  right  to  appropriate  pri- 
vate property  for  private  ways  of 
necessity,  does  not  include  the 
right  to  take  and  use  it  for  the 
construction  of  private  railroads. 
People  V.  District  Court,  11  Colo. 
147.  17  Pac.  298. 

-"  Shoemaker  v.  United  States, 
147  U.  S.  282.  13  Sup.  Ct.  361,  37 
L.  ed.  170;  United  States  v.  Oregon 
R.  &c.  Co.,  16  Fed.  524;.  Aldridge 
v.  Tuscumbia  &c.  R.  Co.,  2  Stew. 
&  P.  (Ala.)  199,  23  Am.  Dec.  307; 
Lent    V.    Tillson,    72    Cal.    404.    14 


Pac.  71 :  Louisville  &c.  R.  Co.  v. 
Louisville.  131  Ky.  108,  114  S.  W. 
743;  Whiteman's  Exr.  v.  Wilming- 
ton &c.  R.  Co.,  2  Harr.  (Del.)  514, 
33  Am.  Dec.  411:  Chicago  &c.  R. 
Co.  v.  Lake,  71  111.  333;  Chicago 
&c.  R.  Co.  V.  Wiltse,  116  111.  449. 
6  N.  E.  49;  Pittsburgh  &c.  R.  Co. 
V.  Sanitary  Dist.  218  111.  286,  75  N. 
E.  892.  2  L.  R.  A.  (N.  S.)  226; 
Water  Works  Co.  v.  Burkhart,  41 
Ind.  364;  Consumers  &c.  Trust  Co. 
V.  Harless.  131  Ind.  446,  29  N.  E. 
1062,  IS  L.  R.  A.  505;  Speck  v. 
Kenoyer,  164  Ind.  431.  73  N.  E. 
896.  897,  898;  Westport  Stone  Co. 
V.  Thomas,  175  Ind.  319,  94  N.  E. 
406;  Chicago  &c.  R.  Co.  v.  Baugh, 
175  Ind.  419.  94  N.  E.  571;  Chero- 
kee V.  Sioux  City  &c.  Co.,  52  Iowa 
279,  3  N.  W.  42;  Challiss  v.  Atchi- 
son &c.  R.  Co.,  16  Kans.  117,  126; 
Brown  v.  Gerald,  100  Maine  351. 
61  Atl.  785,  70  L.  R.  A.  472.  109 
Am.  St.  526;  Moore  v.  Sanford,  151 
Mass.  285,  24  N.  E.  323,  7  L.  R.  A. 
151  and  note;  Savannah  v.  Han- 
cock, 91  Mo.  54,  3  S.  W.  215;  Na- 
tional Docks  R.  Co.  V.  Cent.  R.  Co., 
32  N.  J.  Eq.  755,  763;  Wheeling  &c. 
R.  Co.  V.  Toledo  &c.  Co.,  72  Ohio 
St.  368.  74  N.  E.  209,  106  Am.  St. 
622.  2  A.  &  E.  Ann.  Cas.  941;  Beek- 
man  v.  Saratoga  &c.  R.  Co.,  3 
Paige  (N.  Y.)  45.  22  Am.  Dec.  679 
and    note;    Buffalo    &c.    R.    Co.    v. 


U188 


RAILROADS 


682 


right  of  eminent  domain  is  a  political  or  legislative,  and  not  a 
judicial,  question  ;  and  the  manner  of  its  exercise  by  the  legisla- 
ture, except  as  to  the  matter  of  compensation,  is  unrestricted. 
The  legislature  is  not  bound  to  submit  the  question  of  the 
propriety  of  the  exercise  of  the  right  of  eminent  domain  to  a 
judicial  tribunal,  but  may  exercise  it  itself,  or  delegate  it  to  a 
jury,  commission,  or  any  other  liody,  as  it  sees  fit.-"  It  has 
been  held,  however,  that  no  more  property  can  be  taken  than  is 
required   to   meet   the   necessity   which    the    legislature   has   de- 


Brainard,  9  N.  Y.  100;  Tyler  v. 
Beacher,  44  Vt.  648,  8  Am.  Rep. 
398;  Roanoke  City  v.  Berkowitz,  80 
Va.  616;  Baltimore  &c.  R.  Co.  v. 
Pittsburg  &c.  R.  Co..  17  W.  Va. 
812;  Elliott  Roads  and  Streets. 
(3rd  ed.),  §212;  and  note  in  22  L. 
R.  A.  (N.  S.)  64,  et  seq..  citing 
many  additional  authoriies.  Like 
the  power  to  tax,  it  resides  in  the 
legislative  department  to  which 
the  delegation  is  made.  It  may  be 
exorcised  directly  or  indirectly  by 
that  bod3%  and  it  can  only  be  re- 
restrained  by  the  judiciary  when 
its  limits  have  been  exceeded  or  its 
authority  has  been  abused  or  per- 
verted. Kramer  v.  Cleveland  &c. 
R.  Co.,  5  Ohio  St.  140.  When  the 
use  is  public,  the  necessity  or  ex- 
pediency of  appropriating  any  par- 
ticular property  is  not  a  subject  of 
judicial  cognizance.  Boom  Co.  v. 
Patterson,  98  U.  S.  403,  25  L.  ed. 
206;  Chicago  &c.  R.  Co.  v.  Wiltse, 
116,  111.  449,  6  N.  E.  49;  County 
Court  v.  Griswold,  58  Mo.  175; 
Gicsy  V.  Cincinnati  &c.  R.  Co.,  4 
Ohio  St.  308.  The  burden  of  prov- 
ing the  necessity  in  the  particular 
case  is  held  to  be  upon  the  rail- 
road company  seeking  to  condemn 
in  Louisiana  &c.  Co.  v.  Xavier 
Realty,  115  La.  Ann.  328,  39  So.  1, 


and  when  a  local  board  or  body 
attem])ts  to  exercise  a  power  of 
eminent  domain  not  conferred  on 
it  by  the  legislature,  its  action  is 
subject  to  review  and  control  by 
the  courts,  state  or  federal.  Chi- 
cago &c.  R.  Co.  V.  Williams,  148 
Fed.  442. 

27  Chicago  &c.  R.  Co.  v.  Lake, 
71  111.  333;  Challiss  v.  Atchison  &c. 
Co.,  16  Kans.  117;  State  v.  Rapp, 
39  ^linn.  65.  38  N.  W.  926;  People 
V.  Smith.  21  N.  Y.  595;  State  v. 
Stewart,  74  Wis.  620,  43  N.  W.  947, 
6  L.  R.  A.  394;  Elliott  Roads  and 
Streets  (3r,d  ed.),  §  213.  See  fur- 
ther to  the  efifect  that  it  may  be  so 
delegated.  Eastern  R.  Co.  v.  Bos- 
ton &c.  R.  Co.,  Ill  Mass.  125,  15 
Am.  Rep.  13;  Bemis  v.  Guirl  Drain- 
age Co..  182  Ind.  36,  105  N.  E.  496; 
Richland  School  Twp.  v.  Over- 
meyer,  164  Ind.  382,  73  N.  E.  811; 
Wheeling  &c.  R.  Co.  v.  Toledo  &c. 
Co.,  72  Ohio  St.  368,  74  N.  E.  209, 
106  Am.  St.  622,  2  A.  &  E.  Ann. 
Cas.  941;  Sears  v.  Akron.  246  U.  S. 
242,  38  Sup.  Ct.  245,  62  L.  ed.  688 
(necessity  and  extent  of  taking  is 
legislative  question,  but  legislature 
may  refer  the  issue  to  courts). 
Compare  also  Eckart  v.  Ft.  Waj-ne 
&c.  T.  Co..  181  Ind.  352,  104  X.  E. 
762. 


C83 


APPROPRIATION    UNDER    THE   EMINENT   DOMAIN 


§1188 


dared  to  exist,  and  that  the  legislature  can  not  atithorize  a 
corporation  to  take  all  of  a  tract  of  land  without  the  owner's 
consent  when  only  a  part  thereof  is  necessary  for  the  prosecu- 
tion of  a  pulilic  enterprise.-^  And  the  question  as  to  whether  the 
particular  use  for  which  property  is  sought  to  be  taken  in  any 
case  is  a  public  use,  unlike  the  somewhat  similar  question  of  the 
necessit}^  or  expediency  of  taking  property  for  public  use,  is  a 


28  Baltimore  v.  Calumet.  23  Md. 
449:  Albany  Street.  In  re,  11  Wend. 
(N.  Y.)  149,  25  Am.  Dec.  618  and 
note;  Dunn  v.  Charleston,  Harp. 
L.  (S.  Car.)  189;  Embury  v.  Con- 
ner, 3  Comst.  (N.  Y.)  511.  In 
this  latter  case,  Jewett,  J.,  speak- 
ing for  the  court,  said:  "It  needs 
no  argument  to  show  that  the  end 
and  design  of  this  section  was  not 
to  take  private  property  for  the 
use  of  the  public.  It  manifestly 
goes  upon  the  ground  that  the 
property  so  authorized  to  be  taken 
is  not  wanted  for  the  purpose  of 
forming  or  improving  a, street,  the 
object  in  view  for  which  the  pro- 
ceedings are  instituted."  And  he 
refers  with  approval  to  Albany 
Street,  In  re.  supra,  in  which  the 
court  holds  that  if  the  provision 
was  meant  to  authorize  the  corpor- 
ation to  take  additional  property 
not  needed  for  public  use,  with  the 
consent  of  the  owner,  it  was  valid. 
"But  if  it  was  to  be  taken  literally, 
that  the  commissioners  might, 
against  the  consent  of  the  owner, 
take  the  whole  lot,  when  only  a 
part  was  required  for  public  use, 
and  the  residue  to  be  applied  to 
private  use,  it  assumed  a  power 
v/hich  the  legislature  did  not  pos- 
sess." See  also  Louisiana  &c.  Co. 
v.  Xavier  Realty  Co.,  115  La.  Ann. 
328,  39  So.  1;  Chicago  &c.  R.  Co. 
v.  Williams,  148  Fed.  442  (holding 


that  the  cmirt  ma}--  examine  into 
(juestion  of  necessity  of  taking 
property  already  devoted  to  a  pub- 
lic use).  And  see  authorities  re- 
viewed in  Bennett  v.  Marion,  106 
Iowa  628,  Id  X.  W.  844;  and  in 
note  in  22  L.  R.  A.  (N.  S.)  72-76. 
In  England,  under  the  statute, 
where  the  taking  of  a  part  of  the 
premises  destroys  the  value  of  the 
remaining  portion  for  the  purpose 
for  which  it  is  used,  the  owner  can 
compel  the  company  to  take  the 
whole.  Thus  a  man  having  his 
dwelling-house  in  a  tract  of  two 
and  one-eighth  acres  of  ground, 
surrounded  by  brick  walls,  used 
part  of  the  land  as  a  nursery  gar- 
den for  trade  purposes.  It  was 
held  that  he  was  entitled  under 
§  92  of  the  land  clause  act,  1845,  to 
compel  a  railway  company,  pro- 
posing, without  actually  touching 
the  house,  to  take  the  greenhouses 
and  a  part  which  had  been  planted 
and  used  for  ornamental  purposes, 
to  take  the  whole  of  the  land. 
Salter  v.  Metropolitan  District  R. 
Co.,  L.  R.  9  Eq.  432.  And  a  manu- 
factorj^  which  was  run  partly  by 
water-power  was  permitted  to  com- 
pel a  railroad  company  that  pro- 
posed to  take  the  bed  of  the  stream 
from  which  the  water-power  was 
obtained,  to  take  the  whole  manu- 
factory. Furniss  v.  Midland  R. 
Co..  L.  R.  6  Eq.  473. 


§1188 


RAILROADS 


684 


judicial  qnestion.^^^  And  it  has  been  held  in  Colorado  that  the 
question  of  necessity  is  not  to  be  determined  by  commissioners ; 
their  duty  is  merely  to  determine  the  quantity  of  land  needed.=^° 


2t>  Scars  V.  Akron,  246  U.  S.  242, 
38  Sup.  Ct.  245,  62  L.  ed,  688;  Den- 
ver &c.  Co.  V.  Union  Pac.  R.  Co., 
34    Fed.    386;    Sadler   v.    Langham. 
34   Ala.   311;    Mountain    Park  Ter- 
minal R.  Co.  V.  Field,  76  Ark.  239, 
88    S.    W.    897.   898    (citing    text); 
Stockton    &c.    R.    Co.    V.    Stockton, 
41   Cal.  147;   Consolidated   Channel 
Co.  V.  Central  Pac.  R.  Co.,  51  Cal. 
269;  Loughbridge  v.  Harris.  42  Ga. 
500;    Logan    v.    Stogdale,    123    Ind. 
372,  24  N.  E.   135,  8  L.  R.  A.  58 
and  note;  Bankhead  v.  Brown,  25 
Iowa    540;    Brown    v.    Gerald,    100 
Maine  351,  61  Atl.  785,  70  L.  R.  A. 
472,  109  Am.  St.  526;  New  Central 
Coal    Co.   V.   George's   Creek   Coal 
&c.    Co.,    Z7    ^Id.    537;    Talbot    v. 
Hudson,   16  Gray  (Mass.)   417;   St. 
Paul   &c.   R.   Co.,   In  re,  34  Minn. 
227,  25  N.  W.  345;  Stewart  v.  Great 
Northern  R.  Co.,  65  Minn.  515.  68 
N.  W.  208,  2,Z  L.  R.  A.  427;  Savan- 
nah V.  Hancock,  91  Mo.  54,  3  S.  W. 
215;  St.  Joseph  &c.  R.  Co.  v.  Han- 
nibal   &c.    R.    Co.,   94   Mo.    535,   6 
S.  W,  691;  Dayton  &c.  Mining  Co. 
V.    Seawell,    11    Nev.   394;    Concord 
R.  Co.  V.  Greely,  17  N.  H.  47;  Cos- 
ter   V.    Tide    Water  .Co.,    18    N.    J. 
Eq.  54;  Deansville  Cemetery  Assn., 
Matter  of,   66   N.   Y.   569.   23   Am. 
Rep.   86;   McQuillen   v.    Hatton,   42 
Ohio  St.  202;   Anderson  v.  Ttirbe- 
ville,  6  Coldw.   (Tenn.)   150;  Tyler 
v.  Beacher,  44  Vt.  648,  8  Am.  Rep. 
398:   Varner  v.  Martin.  21   W.  Va. 
534.  550:   Pittsburgh  &c.  R.  Co.  v. 
Benwood  Iron  Works.  31   W.   Va. 
710.  8  S.   E.  453.  2   L.   R.  A.  680: 
Cozad  V.  Kanawha  &c.  Co.,  139  N. 


Car.    283,    51    S.    E.   932:    1    Elliott 
Roads  &  Sts.  (3rd  ed.),  §  214;  note 
in  22  L.  R.  A.  (N.  S.)  50-55.  where 
numerous  other  cases   are  cited  to 
same  effect.      In    Bridwell   v.   Gate 
City  Terminal   Co.,  127  Ga.  520,  56 
S.   E.  624,  627,  it  is   said:     "In   de- 
termining whether  the  use  to  which 
it  is  sought  to  appropriate  land  of 
a   property  owner  is  a  public  or   a 
private    u.?e,   all   the    facts    and    cir- 
cumstances throwing  light  on  that 
subject    may    be    considered,    and 
the    mere    fact    that    the    company 
may  have  a  charter  to  build  a  rail- 
road,   regular    on    its    face,    is    not 
conclusive  as  to  the  question  of  the 
purpose  for  which   the  property  is 
actually  sought  to  be  taken."     See 
also  New  Orleans  Terminal  Co.  v. 
Teller,    113    La.    Ann.    733.    Z7    So. 
624,   38    Am.    &    Eng.    R.    Cas.    64; 
1    Elliott    Roads    &   Sts.    (3rd   ed.). 
§  214.     In   one  case  where  no  ob- 
jection  was  made   to   the   appoint- 
ment of  commissioners,  and  no  at- 
tempt was  made  to  submit  to  the 
court  questions  of  whether  the  tak- 
ing of  the  land  was  for  a  private 
use,  or  whether  there  was  a  neces- 
sity therefore  until  after  the  report 
was  filed,  it  was  held  that  tlio  right 
to  have  such  questions  determined 
by  the   court  was   waived.     Union 
Pac.  R.  Co.  V.  Colorado  Postal  Tel. 
Cable    Co.,    30    Colo.    133.    69    Pac. 
564. 

30  Union  Pacific  R.  Co.  v.  Colo- 
rado &c.  Cable  Co..  30  Colo.  133. 
69  Pac.  564.  See  also  Vinegar 
Bend  Lumber  Co.  v.  Oak  Grove 
^c.  R.  Co.,  89  Miss.  117.  43  So.  292. 


685  APPROPRIATION    UNDER    THE    EMINENT    DOMAIN  §  1189 

§1189.  Effect  of  legislative  determination  of  public  use  in 
first  instance. — The  legislature  may  determine  what  is  a  public 
use  in  the  first  instance,  and  great  respect  is  paid  by  the  courts 
to  such  determination.^^  But,  as  shown  in  the  last  preceding 
section,  such  determination  is  not  conclusive  so  as  to  prevent 
judicial  inquiry  and  determination.  The  question  is  ultimately 
one  for  the  courts  even  where  the  legislature  has  expressly  de- 
clared the  use  to  be  a  public  one.^- 

§  1190  (952a).  Public  use  and  necessity — What  constitutes 
public  use. — The  authorities  as  to  what  constitutes  a  public  use 
are  hopelessly  conflicting,  some  cases  holding  that  the  term 
"public  use"  is  equivalent  to  "pu])lic  benefit,"''^  and  that  whatever 
is  beneficially  employed  for  the  community  is  of  public  use,^* 
Avhile  some  other  cases  hold  that,  to  constitute  a  public  use,  the 
public  must  assume  control  of  the  property  taken,  or  some  right 

31  Farmer  v.  Treasnrj^  Tunnel  land  Boy  Gold  Min.  Co.,  200  U.  S. 
&c.  Co,  35  Colo.  593,  83  Pac.  464.  527.  26  Sup.  Ct.  301,  50  L.  ed.  581: 
4  L.  R.  A.  (N.  S.)  106:  New  York  Walker  v.  Shasta  Power  Co.,  160 
&c.  R.  Co.  V.  Offield,  11  Conn.  417,  Fed.  856,  19  L.  R.  A.  (N.  S.)  725. 
59  Atl.  510:  AIulI  v.  Indianapolis  •■'■■5  Olmstead  v.  Camp,  33  Conn. 
&c.  Trac.  Co.,  169  Ind.  214,  81  N.  532.  89  Am.  Dec.  221;  Hand  Gold 
E.  657  (presumption  that  it  is  pub-  JMin.  Co.  v.  Parker,  59  Ga.  419; 
lie  use  when  so  declared  by  legis-  Bellona  Company's  Case.  3  Bland. 
lature);  Sisson  v.  Buena  Vista  Co.,  Ch.  (Md.)  442:  Talbot  v.  Hudso, 
128  Iowa  442,  104  N.  W.  454,  70  16  Gray  (Mass.)  417;  Beekman  v. 
L.  R.  A.  440.  Saratoga   &c.   R.   Co.,  3   Paige   (N. 

32  In  re,  Madera  Irr.  Dist.  &c.  Y.)  45,  Ti,  22  Am.  Dec.  679  and 
92  Cal.  296,  28  Pac.  272,  675.  27  Am.  note:  Seely  v.  Sebastian,  4  Ore,  25; 
St.  106,  14  L.  R.  A.  755;  San  Mateo  Pittsburgh  v.  Scott,  1  Pa.  St.  309. 
Co.  V.  Coburn,  130  Cal.  631,  (>!>  Pac.  But  see  Brown  v.  Gerald,  100 
78,  621;  Logan  v.  Stogsdale,  123  Elaine  351,  61*  Atl.  785;  Gaylord  v. 
Ind.  372,  24  N.  E.  135,  8  L.  R.  A.  Sanitary  Dist.,  204  111.  576,  68  N.  E. 
58;  Van  Witsen  v.  Gutman  79  ^Nld.  522.  63  L.  R.  A.  582.  98  Am.  St. 
405.  29  Atl.  608,  24  L.  R,  A.  403:  235:  Niagara  Falls  R.  Co.,  In  re. 
Waterloo  &c.  Co.  v.  Shanahan.  128  108  N.  Y.  375,  15  N.  E.  429:  and 
N.  Y.  345,  28  N.  E.  358.  14  L.  R.  A.  note  in  22  Am.  Dec.  688,  704;  and 
481:  Highland  &c.  Min.  Co..  v.  102  Am.  St.  813,  822,  et  seq. 
Strickley.  28  Utah  215,  78  Pac.  296,  s*  Aldridge  v.  Tuscumbia  &c.  R. 
1  L.  R.  A.  (N,  S.)  976.  107  Am.  St.  Co.,  2  Stew.  &  P.  (Ala.)  199,  23 
711;  affirmed  in  Strickley  v.  High-  Am.   Dec.   307, 


§  1191 


RAILROADS 


G86 


to  use  the  property  must  pass  to  the  public.^^  The  courts  have 
often  referred  to  the  fact  that  this  is  a  perplexing  and  difficult 
question, ■•''  and  no  exact  and  arbitrary  dehnition  or  test  has  been, 
cr  can  be,  formulated  by  which  the  question  can  be  determined 
in  all  cases. ^''  It  would  be  impossible  to  reconcile  all  the 
authorities  upon  the  general  subject,  and  no  attempt  will  be 
made  here  to  do  so.  Indeed,  all  that  we  are  now  interested  in, 
and  all  that  is  pertinent  to  this  work,  is  to  determine  the  question 
in  its  relation  only  to  railroads. ^^  . 

§1191.     Public    use — General    rules    and    illustrations. —  ll    is 

generally  conceded  that,  to  be  public,  it  is  not  essential  that  the 
user  should  be  such  as  to  directly  beneht  all,  or  any  considerable 
part,  of  the  entire  community ,"'-*  but  the  use  and  benefit  must,  as 


35  West  River  Bridge  Co.  v.  Dix, 
6  How.  (U.  S.)  507,  546,  12  L.  ed. 
535;  Sholl  V.  German  Coal  Co.,  118 
111.  427,  10  N.  E.  199,  59  Am.  Rep. 
379;  Jenal  v.  Green  Island  Drain- 
age Co.,  12  Nebr.  163,  10  N.  W. 
547;  Eureka  &c.  Mfg.  Co.,  Matter 
of,  96  N.  Y.  42;  Memphis  Freight 
Co.  V.  Memphis,  4  Coldw.  (Tenn.) 
419;  Varner  v.  Martin,  21  W.  Va. 
534.  See  also  De  Camp  v.  Hiber- 
nia  R.  Co.,  47  N.  J.  L.  43;  Twolftli 
St.  Market  Co.  v.  Philadelphia  &c. 
R.,  142  Pa.  St.  580,  21  Atl.  902.  989. 
Other  courts  have  been  contented 
to  say  merely  that  "public  use" 
means  use  by  the  public.  Arn- 
spergcr  v.  Crawford,  101  Md.  247, 
61  Atl.  413,  70  L.  R.  A.  497;  Slater 
v.  White  River  &c.  Co.,  39  Wash. 
648.  82  Pac.  150,  2  L.  R.  A.  (N.  S.) 
842. 

38  Howard  Mills  Co.  v.  Schwartz 
Lumber  &c.  Co..  77  Kans.  599.  95 
Pac.  559,  18  L.  R.  A.  (N.  S.)  356: 
Chicago  &c.  R.  Co.  v.  Morehouse, 
112  Wis.  1,  87  N.  W.  849,  88  Am. 
St.  918,  56  L.  R.  A.  240,  and  cases 


cited    in    next  following   note. 

3^  Tanner  v.  Treasury  Tunnel  &c. 
Co..  35  Colo.  593,  83  Pac.  464,  4 
L.  R.  A.  (N.  S.)  106;  Shojl  v.  Ger- 
man &c.  Co.,  118  111.  427,  10  N.  E. 
199.  59  Am.  Rep.  379;  Paxton  &c. 
Co.  v.  Farmers'  &c.  Co.,  45  Nebr. 
884.  64  N.  W.  343,  50  Am.  St.  585; 
Re  Niagara  Falls  &c.  R.  Co.,  108 
N.  Y.  375,  15  N.  E.  429;  Ryan  v. 
Louisville  &c.  R.  Co.,  102  Tenn. 
Ill,  50  S.  W.  744,  45  L.  R.  A.  303; 
Valley  City  Salt  Co.  v.  Brown,  7 
W.    Va.    191. 

38  For  an  elaborate  consideration 
of  the  general  subject,  reviewing 
many  cases,  see  note  in  22  L.  R.  A. 
(X.   S.)   35,  et  seq. 

39  Aldridge  v.  Tuscumbia  &c.  R. 
Co..  2  Stew.  &  P.  (Ala.)  199.  23 
Am.  Dec.  307;  Sadler  v.  Langham, 
34  Ala.  311:  Gilmer  v.  Lime  Point. 
18  Cal.  229;  Sherman  v.  Buick.  32 
Cal.  241.  91  Am.  Dec.  577.  and  note; 
O'Reiley  v.  Kankakee  Valley  &c. 
Co.,  32  Tnd.  169;  Chesapeake  Stone 
Co.  V.  Moreland.  31  Ky.  L.  1075. 
104  S.  W.  762,  16  L.  R.  A.  (N.  S.) 


687 


APPROPRIATION    UNDER    THE   EMINENT   DOMAIN 


1191 


a  general  rule,  be  common  to  all  members  of  the  community  who 
choose  to  avail  themselves  of  it/°  although  it  has  been  helfl  that 
a  union  depot  company  organized  to  provide  depot  and  terminal 
facilities  for  a  number  of  railroads  may  be  authorized  to  condemn 
property  for  that  purpose*^  There  is  a  late  decision  to  the  effect 
that  a  statute  giving  a  street  railroad  a  right  to  use  a  certain 


479;  Riche  v.  Bar  Harbor  Water 
Co.,  75  Maine  91,  28  Alb.  L.  J.  498; 
Talbot  V.  Hudson,  16  Gray  (Mass.) 
417;  Chica^^o  &c.  R.  Co.  v.  Porter, 
43  Minn.  527,  2  Am.  R.  &  Corp. 
Rep.  415  and  note  on  page  425; 
Bloomfield  &c.  Co.  v.  Richardson. 
63  Barb.  (N.  Y.)  437;  Shaver  v. 
Starrett,  4  Ohio  St.  494:  McQuillen 
v.  Hatton,  42  Ohio  St.  202;  Warren 
v.  Bunnell.  11  Vt.  600:  Elliott 
Roads  and  Streets  (3d  ed.).  §§  215, 
216,  quoted  with  approval  in  Madi- 
son V.  Gallagher,  159  111.  105,  42 
N.  E.  316,  317,  and  in  Cozad  v. 
Kanawha  &c.  Co.,  139  N.  Car.  283, 
51  S.  E.  932.  934.  See  also  West- 
port  &c.  Co.  V.  Thomas,  175  Ind. 
319,  94  N.  E.  406;  Zircle  v.  South- 
ern R.  Co.,  102  Va.  17,  45  S.  E. 
802,  102  Am.  St.  805;  State  v.  Su- 
perior Court,  83  Wash.  445,  145 
Pac.  421  (it  is  the  nature  of  the 
use  rather  than  its  extent  that  de- 
termines  its   public   character). 

40  Madera  R.  Co.  v.  Raymond 
Granite  Co.,  3  Cal.  App.  668,  87 
Pac.  27:  Olmstead  v.  Camp,  33 
Conn.  532,  89  Am.  Dec.  221;  Ulmer 
V.  Lime  Rock  R.  Co.,  98  Maine 
579,  57  Atl.  1001.  66  L.  R.  A.  387: 
Brown  v.  Gerald,  100  Maine  351. 
61  Atl.  785.  70  L.  R.  A.  472.  109 
Am.  St.  526.  Township  Board  v. 
Hackmann.  48  Mo.  243;  Coster  v. 
Tide  Water  Co.,  18  N.  J.  Eq.  54: 
McQuillen   v.   Hatton,  42  Ohio   St. 


202:  Williams  v.  School  District, 
33  \'t.  271;  Elliott  Roads  and 
Streets  (3d  ed.),  §§  215,  216.  See 
also  note  in  102  Am.  St.  813.  It 
docs  not  depend  upon  the  amount 
of  business,  but  upon  the  right  of 
the  public  generally  to  use  the 
road  or  conduct  business  with  it 
as  a  common  carrier.  Kettle  River 
R.  Co.  V.  Eastern  R.  Co.,  41  Minn. 
461,  43  N.  W.  469,  6  L.  R.  A.  Ill, 
40  Am.  &  Eng.  R.  Cas.  449;  Con- 
cord R.  Co.  V.  Greely,  17  N.  H. 
47.  See  also  W^estport  &c.  Co.  v. 
Thomas,  175  Ind.  319,  94  N.  E. 
406.  But  see  Pittsburgh  &c.  R. 
Co.  V.  Benwood  Iron  Works,  31 
W^'  Va.  710,  8  S.  E.  453,  2  L.  R.  A. 
680  and  note.  The  furnishing  of 
electricity  for  the  use  of  extensive 
street  surface  railroads,  constitutes 
a  "public  use"  within  the  meaning 
of  that  phrase  in  relation  to  emi- 
nent domain.  Niagara  &c.  Power 
Co..  In  re.  Ill  App.  Div.  686,  97 
N.  Y.  S.  853.  As  to  inadequacy 
of  use  by  the  general  public  as  a 
universal  test,  see  Clark  v.  Nash, 
198  U.  S.  361,  25  Sup.  Ct.  676,  49 
L.  ed.  1095;  Strickley  v.  Highland 
Boy  Gold  Min.  Co.,  200  U.  S.  527, 
26  Sup.  Ct.  301,  50  L.  ed.  581. 

41  Fort  Street  Union  Depot  Co. 
v.  Morton,  83  Mich.  265,  47  N.  W. 
228,  3  Am.  R.  &  Corp.  Rep.  438; 
Riley  v.  Charleston  &c.  Co.,  71  S. 
Car.  457,  51  S.  E.  485. 


^ 1192  KAILUOADS 


688 


amount  of  the  tracks  of  another  street  raih-oad  company,  on  pay- 
ment of  damages,  is  unconstitutional,  as  an  exercise  of  the  right 
of  eminent  domain.  It  was  held  that  the  object  of  the  statute 
was  not  the  benefit  of  the  general  public,  but  a  scheme  to  aid  a 
new  corporation  in  taking  possession  of  the  franchises  of  the  old 
corporation  for  its  own  benefit,  and  a  clear  violation  of  the  prin- 
ciples underlying  the  right  of  eminent  domain."-  But  the  mere 
fact  that  the  advantage  of  the  railroad  inures  to  especially  a  par- 
ticular individual  or  class  of  individuals  will  not  deprive  it  of  its 
public  character.*^  And  it  has  been  held  that  the  question  of 
public  use  does  not  depend  on  the  length  of  the  road,**  or  whether 
it  is  only  a  branch  road,'"'  or  that  its  rolling  stock  is  to  be  furn- 
ished by  another  corporation,*''  or  that  its  stockholders  are  also 
stockholders  in  a  corporation  which  will  be  primarily  benefited 
by  its  construction.*' 

§1192   (952b).     Public     use     and     necessity — Continued. — (3n 

this  subject  the  New  York  Court  of  Appeals  has  said :  "To 
justify  the  taking  of  land,  in  invitum  its  owner,  for  railroad  pur- 
poses, not  only  the  necessity  must  exist,  but  that  necessity  must 
be  recognized  by  statute  and  be  provided  for  in  some  plain  grant 
of  power.  That  a  railroad  purpose  usually  subserves  a  public 
use  is  true ;  but  the  precise  authority  to  take  the  land  desired  by 
condemnation  proceedings  must  always  be  found,  and  whether 
it  exists,  and  whether  it  is  available,  in  the  case  presented,  are 
questions  for  judicial  determination.     The  courts  are  to  decide 

*2  Philadelphia  &c.  R.  Co.,  In  re,  Co.   v.    Berwin-Whitc    &c.    Co.,   24 

203   Pa.   354,   53   Atl.    191.  Pa.   Co.  Ct.   104;   State  v.   Superior 

43  Madera    R.    Co.    v.     Rayiiiond  Ct.,  42  Wash.  675,  85  Pac.  669.  See 

Gi-.-initc  Co..  3  Cal  App.  668,  87  Pac.  also  post  §§  1204,  1206. 

27.     Sec  also  post,  §§  1204,  1206.  *«  Madera    R.    Co.    v.    Raymond 

■1'  Madera    R.    Co.    v.    Raymond  Granite    Co.,    3    Cal.    App.    668,    87 

Granite    Co.,    3    Cal.    App.    668,    87  Pac.  27.     See  also  Bridal   Veil  &c. 

Pac.  27;  Kansas  &c.  Coal  R.  Co.  v.  Co.    v.    Johnson,    30    Ore.    205,    46 

Northwestern  &c.  Co.,  161  Mo.  288.  Pac.  790,  34  L.   R.  A.  368,  60  Am. 

61   S.  W.   684,  51   L.  R.  A.  936.  84  St.  818. 

Am.  St.  717.  *^  Madera    R.    Co.    v.    Raymond 

*5  Madera    R.     Co.    v.    Raymond  Granite    Co.,    3    Cal.    App.    668.    87 

Granite    Co.,    3    Cal.    App.    668,    87  Pac.    27. 
Pac.   27;    Rochester    &c.    Coal    &c. 


689  APPROPRIATION     L'JSDER    THE   EMINENT    DOMAIN  §  1193 

\vhether  the  uses,  for  which  the  land  is  demanded,  are,  in  fact, 
public,  and  within  the  intendment  of  the  statute."'**  The  ques- 
tion of  the  right  of  interurban  roads  to  exercise  this  power  is 
elsewhere  considered,  but  it  is  said,  in  a  recent  case,  that  the 
courts  proceed  upon  the  theory  that  the  road  must  be  of  l^enefit 
to  the  rural  inhabitants  along  the  route  traversed,  aiul  not  that 
only  those  living-  in  towns  where  regular  stations  shall  be  main- 
tained shall  be  the  beneficiaries,  and  the  courts,  applying  this 
principle,  held  that,  wdiere  the  country  districts  are  so  sparsely 
settled  that  the  traffic  along  railroad  lines  paralleled  by  such  ii;- 
tcrurban  lines  will  not  support  the  electric  railroads,  then  their 
construction  is  not  a  public  necessity,  and  the  power  of  eminent 
domain  cannot  be  called  into  action  on  their  behalf  under  the 
Illinois  statute."*-'  It  has  been  held  that  the  fact  that  citizens 
guarantee  a  railroad  company  that  property  needed  for  its  term- 
inal facilities  shall  not  cost  beyond  a  certain  amount,  does  not 
make  use  of  such  terminal  facilities  a  private  use  so  as  to  prevent 
the  company  from  taking  the  property  under  the  power  of  emi- 
nent domain.^" 

§  1193  (952c).  Exercise  of  power  by  corporation  exercising 
both  public  and  private  functions. — The  question  has  been  raised 
w'hether  a  corporation  authorized  to  pursue  private,  as  well  as 
public  objects,  may  exercise  the  right  of  eminent  domain  at  all. 
Those  raising  this  question  contend  that,  to  permit  condemnation 
by  such  corporations,  would  be  equivalent  to  allowing  the  taking 
of  private  property  for  private  purposes.  The  point  seems  well 
taken  in  cases  where  it  is  sought  to  condemn  the  property  for 
one  of  the  private  objects  for  which  the  company  was  incorporat- 
ed, but  is  without  force  where  the  property  is  demanded  for  a 
public  use  under  the  articles  of  incorporation.^'^  In  one  of  the 
decisions  reaching  this  conclusion  it  was  said  :  "If  a  private  use 
is  combined  with  a  public  one  in  such  a  way  that  the  two  can  not 

"Erie  R.  Co.  v.  Steward,  170  N.  T.  Co.,  181  Iiul.  .S52.  104  N.  E.  762. 

Y.  172,  63  N.  E.  118.  •"'"  I-ouisiana  &c.  R.  Co.  v.  iNIose- 

^Mlartshorn    v.    Illinois    &c.    T.  ley,   117  La.  313,  41   So.  585. 

Co.,  210  111.  609.  71  N.  E.  612;  But  ^i  State  v.  Centralia-Chehalis  &c. 

compare  Eckart  v.  Ft.  Wayne  &c.  Co.,  42  Wash.  632,  85  Pac.  344. 


§  119-4  RAILROADS  (iJ)0 

be  separated,  then  unquestionably  the  right  of  eminent  domain 
could  not  be  invoked  to  aid  the  enterj^rise,  but  it  has  been  said, 
and  it  seems  tt)  us  that  it  is  a  ])etter  reason,  that,  where  the  two 
are  not  so  comljined  as  to  be  inseparable,  the  good  may  be  sep- 
arated from  the  bad.  and  the  right  exercised  for  the  uses  that  are 
public."^-  Another  court  says:  "We  see  no  greater  reason  for 
denying  to  a  private  corporation  the  i)ower  of  eminent  domain 
for  the  promotion  of  a  public  use  l)ecause,  by  its  charter,  it  is 
also  authorized  to  engage  in  a  pri\ate  enterprise,  than  to  deny  to 
a  private  person  the  same  power  Ijecause  he  is  inherently  en- 
dowed with  the  same  authority. ''''•  lUit.  where  a  proceeding  is 
instituted  to  condemn,  lor  Ixilh  public  and  private  use,  that  is, 
for  a  ])urpose  part  public  and  part  priwite,  the  right  to  proceed 
is  usually  denied.^* 

§  1194   (953).     Delegation  of  the  power  of  eminent  domain. — 

The  legislature  may  appropriate  property  under  the  power  of 
eminent  domain  by  an  act  s]:)ecifying  the  property  required  and 
the  use  to  which  it  is  to  be  devoted, ^"^  and  when  it  has  declared 
the  necessity  for  taking  certain  property  by  regular  enactment 
such  act  must  be  held  to  be,  for  this  purpose,  the  law  of  the  land, 
and  no  further  finding  or  adjudication  on  that  subject  can  be 
essential,  unless  the  constitution  of  the  state  expressly  so  re- 
quires ;■"'"  or  it  may  declare  the  purpose  for  w^hich  property  is  to 

■''-  State  V.  Ccntralia-Chehalis  &o.  •''•''  Boom    Co.   v.   Patterson.   98  U. 

Co.,  42  Wash.  632,  85  Pac.  344.    See  S.  403,  25  L.  ed.  206;  Minis  v.  .Ma- 

also   Brown  v.    Gerald,   100   ]^Iaine,  con  &c.  R.  Co.,  3  Ga.  333;  Hingham 

351.  61   Atl.   785,   70  L.    R.  A.  472:  &c.  Tpk.  Co.  v.  County  of  Norfolk, 

Niagara  Falls  &c.  R.  Co.,  In  re,  108  6  Allen    (Mass.)   353;   Union    Ferrj- 

N.  Y.  375,   15  N.  E.  429;   Bridwell  Co.,  Matter  of.  98  N.  Y.  139:  Genet 

V.  Gate  City  Terminal  Co.,  127  Ga.  v.   Brooklyn,  99   N.  Y.  296;   Appli- 

520,  56  S.  E.  625.  cation  of  New  York.  Matter  of,  99 

■"■'^  Irrigation     Co.     v.     Klein.     63  N.  Y.  569  (affirming  34  Hun  441): 

Kans.  484,  65  Pac.  684.  Smedley  v.  Irwin.  51   Pa.  445;  To- 

•''*  Chicago    &c.    R.     Co.    v.    Gait.  wanda    Bridge    Co..    In    re.    91    Pa. 

133  111.  657,  23  N.  E.  425,  24  N.  E.  St.  216;   Township   of    Mahoney  v. 

674:  Gaylord   v.  Sanitary  Dist.  204  Comry.,  103  Pa.  St.  362;  Baltimore 

111.  576,  68  N.  E.  522,  63  L.  R.  A.  &c.  R.  Co.  v.  Pittsburgh  &c.  R.  Co., 

582,    98    Am.    St.    235;    Minnesota  17  W.  Va.  812. 

1*^0.     Co.    V.    Koochiching    Co..    97  •''*'  Secombe    v.    Railroad    Co.,    23 

Minn.  429.  107  N.  W.  405,  5   L.  R.  Wall.    (U.    S.)    108,   23    L.    ed.   67; 

A.   (N.  S.)   638.  Kramer    v.    Cleveland    &c.    R.    Co., 


691 


APPKOI'KI.VTIOX     rXDKK    TIIK    EMINENT    DOMAIN 


^  H9-4 


be  taken  and  leave  the  selection  of  the  property  to  be  taken  to 
whatever  agencies  it  pleases,  for  it  has  the  sole  power  to  judge 
what  persons,  corporations,  or  other  agencies  may  properly  be 
clothed  with  this  power,  subject  only  to  the  limitations  imposed 
by  the  constitution."  Thus,  the  right  to  take  private  property 
for  a  recognized  pul)lic  use  may  be  conferred  upon  an  in- 
dividual.""'^   or     upon    a    corporation,     whether    municipal,"'''     or 


5  Ohio  St.  140;  Alexandria  &c.  R. 
Co.  V.  Alexandria  &c.  R.  Co.,  75 
Va.  780,  40  Am.  Rep.  743.  and  note, 
10  Am.  &  Eng.  R.  Cas.  23. 

57  Gilmer  v.  Lime  Point,  18  Cal. 
229;  Tide  Water  Canal  Co.  v.  Ar- 
cher, 9  Gill  &  J.  (^Id.)  479;  Con- 
cord R.  Co.  V.  Greely,  17  N.  H.  47; 
Ash  V.  Cummings,  50  N.  H.  591: 
Yost's  Report,  17  Pa.  St.  524;  El- 
liott Roads  and  Streets.  (3d  ed.), 
§§  212,  213;  note  in  22  L.  R.  A. 
(N.  S.)   17,  et  seq. 

58  Morgan  v.  Louisiana,  93  U.  S. 
217,  23  L.  ed.  860;  Clark  v.  Nash, 
198  U.  S.  361,  22  Sup.  Ct.  676,  49  L. 
ed.  1085.  affirming  27  Utah  158,  75 
Pac.  371.  101  Am.  St.  953;  Moran 
V.  Ross,  79  Cal.  159,  21  Pac.  547, 
39  Am.  &  Eng.  R.  Cas.  1;  Law- 
rence V.  Morgan's  La.  &c.  R.  Co., 
39  La.  Ann.  427,  2  So.  69,  4  Am. 
St.  265;  Lebanon  v.  Olcott.  1  N.  H. 
339;  Petition  of  Kerr,  Matter  nf, 
42  Barb.  (N.  Y.)  119;  Plecker  v. 
Rhodes,  30  Grat.  (Va.)  795;  Pratt 
V.  Brown,  3  Wis.  603.  The  pro- 
vision of  the  Cal.  Const,  art.  1  §  14, 
that  a  corporation  can  not  ex- 
ercise the  right  of  eminent  domain 
except  upon  certain  conditions, 
does  not  imply  a  prohibition 
against  the  exercise  of  such  right 
by  individuals.     And   it  is   immate- 


rial to  the  right  of  an  individual 
to  condemn  land  for  a  railroad  that 
a  railroad  corporation  had  previ- 
ously located  a  road  on  that  line, 
and  built  on  a  part  of  it.  Moran 
V.  Ross,  79  Cal.  159,  21  Pac.  547, 
39  Am.  &  Eng.  R.  Cas.  1.  But  see 
as  to  right  of  courts  to  examine 
into  question  of  necessity  where 
only  a  general  power  is  conferred 
on  the  agency  of  the  state  which  is 
seeking  to  retake  property  already 
devoted  to  a  public  use.  Chicago 
&c.  R.  Co.  V.  Williams,  148  Fed. 
442.  An  individual  has  no  power 
to  acquire  land  for  railroad  pur- 
poses in  New  York,  and  this  is 
probably  true  in  most  states.  Peo- 
ple v.  Erie  R.  Co.,  198  N.  Y.  369, 
91  N.  E.  849,  29  L.  R.  A.  (N.  S.) 
240,  246.  See  also  William  Cramp 
^  Sons  Ship  Building  &c.  Co.  v. 
International  &c.  Co.,  246  U.  S.  28, 
38  Sup.  Ct.  271.  62  L.  ed.  560. 

59  Burden  v.  Stein,  27  Ala.  104, 
62  Am.  Dec.  758;  Reddall  v.  Bryan, 
14  Md.  444,  74  Am.  Dec.  550;  Kane 
V.  Baltimore.  15  Md.  240;  Wayland 
V.  County  Commissioners,  4  Gray 
(Mass.)  500;  Ham  v.  Salem,  100 
Mass.  350;  Gardner  v.  Newburgh, 
2  Johns.  Ch.  (N.  Y.)  162;  Mayor 
&c.  of  New  York  v.  Bailey.  2  Denio 
(N.     Y.)     433;     Rochester     Water 


§  "11  ^>o 


RAILROADS 


692 


private,®"  except  in  so  far  as  the  constitution  forbids.  And  it 
may  be  conferred  by  a  general  act  or  general  incorporation  laws 
upon  all  individuals  or  corporations  complying  witli  the  terms  of 
such  laws."* 

§  1195  (954).  Delegation  of  the  power  to  railroad  companies 
— Extent  of  authority. — Since  railroads  are  regarded  as  of  public 
utility,  the  delegation  to  a  railroad  corporation  of  the  power  to 
take,  by  proceedings  in  invitum.  the  necessary  lands  upon  which 
to  build  its  road,  is  upheld  by  all  the  courts.®-  A  general  law  in 
regard  to  the  assessment  of  damages  in  condemnation  proceed- 
ings will  not  supersede  the  provisions  of  special  charters  on  the 


Commissioners,  In  re,  66  N.  V. 
41.V  The  right  to  condemn  proper- 
ty under  the  laws  of  the  state  may 
be  conferred  on  the  United  States 
government.  Gilmer  v.  Lime  Point, 
18  Cal.  229;  Burt  v.  Merchants' 
Ins.  Co.,  106  Mass.  356,  8  Am.  Rep. 
339:  ante,  §  1185. 

60  Mims  v.  Macon  &c.  R.  Co..  3 
Ga.  333:  Hand  Gold  Mining  Co.  v. 
Parker,  59  Ga.  419:  Concord  R.  Co. 
V.  Greely,  17  N.  H.  47;  Bloodgood 
V.  Mohawk  &c.  R.  Co.,  18  Wend. 
(N.  Y.)  9.  31  Am.  Dec.  313  and  note: 
Buffalo  &c.  City  R.  Co.  v.  Brain- 
ard,  9  N.  Y.  "100;  Louisville  &c.  R. 
Co.  v.  Chappell,  Rice  L.  (S.  Car.) 
383;  Tide-Water  Canal  Co.  v.  Ar- 
cher, 9  Gill  &  J.  (Md.)  479.  The 
power  of  legislatures  to  grant  this 
to  railroad  companies  is  well  set- 
tled. New  York  &c.  R.  Co.  v.  Of- 
field.  77  Conn.  417,  59  Atl.  570: 
Moody  V.  Jacksonville  &c.  R.  Co., 
20  Fla.  597;  note  in  22  L.  R.  A. 
(N.  S.)  109,  and  numerous  cases 
cited  in  next  following  and  subse- 
quent sections. 

«i  Weir  V.   St.    Paul    &c.   R.    Co., 
18    Minn.    155;    National    Docks    R. 


Co.  V.  Central  R.  Co..  32  N.  J.  Eq. 
755:  Central  R.  Co.  v.  Pennsylva- 
nia R.  Co.,  31  N.  J.  Eq.  475.  A  gen- 
eral statute  authorizing  the  crea- 
tion of  an  indefinite  number  of 
railroad  corporations,  making  such 
corporations  common  carriers,  and 
requiring  them  to  he  constantly 
engaged  in  such  public  employ- 
ment, may  also  constitutionally 
authorize  them  to  take  private 
property  for  their  roads  on  making 
compensation.  Buffalo  &c.  R.  Co.. 
V.   Brainard,  9  N.  Y.   100. 

62  Bonaparte  v.  Camden  &c.  R. 
Co.,  1  Bald.  (U.  S.)  205;  Cairo  &c. 
R.  Co.  V.  Turner,  31  Ark.  494,  25 
Am.  Rep.  564:  San  Francisco  &c. 
R.  Co.  V.  Caldwell,  31  Cal.  367; 
Enfield  Toll  Bridge  v.  Hartford 
&c.  R.  Co.,  17  Conn.  40,  42  Am. 
Dec.  716  and  note;  Lexington  &c. 
R.  Co.  V.  Applcgate,  8  Dana  (Ky.) 
289,  33  Am.  Dec.  497  and  note: 
Ash  V.  Cummings,  50  N.  H.  591: 
Beekman  v.  Saratoga  R.  Co.,  3 
Paige  (N.  Y.)  45,  22  Am.  Dec.  679 
and  note;  Rensselaer  &c.  R.  Co. 
V.  Davis.  43  N.  Y.  137;  Secomb  v. 
Milwaukee    &c.    R.    Co.,    49    How. 


(i93 


Ari'KOPRIATION    UXDEK    TIJE    K.MINENT   DOMAIN 


§1196 


subject,*^^  unless  a  clear  legislative  intent  to  give  it  that  effect  is 
manifested."*  The  extent  of  the  authority  depends  primarily 
upon  the  governing  statute,  subject  to  constitutional  limitations 
or  provisions,  but  statutes  seldom  attempt  to  fix  the  precise  lim- 
its and  extent  of  the  powder  and  general  statutes  could  not  well 
do  so  in  such  detail  as  to  fit  every  particular  case  and  determine 
exactly  just  what  property  should  Ije  taken  and  how  much,  or 
the  like.  Considerable  discretion  is  necessarily  vested  in  some 
agency,  and  this  is  often  the  condemning  company  itself. 

§  1196.  Extent  of  authority — Discretion  of  company  to  de- 
termine particular  necessity. — Where  the  power  to  take  all  nec- 
essary lands  for  use  in  the  construction  of  a  public  work  is 
delegated  to  one  or  more  individuals  or  to  a  corporation,  the 
courts  are  generally  concluded,  by  the  good  faith  determination 
of  such  agency,  as  to  the  necessity  for  taking  any  particular 
lands,"^  or  at  least  they  will  not  interfere  therewith  in  such  a  case, 


Prac.  (N.  Y.)  75;  Buffalo,  In  re. 
68  N.  Y.  167;  Kramer  v.  Cleveland 
&c.  R.  Co.,  S  Ohio  St.  140;  Louis- 
ville &c.  R.  Co.  V.  Chappell,  Rice 
L.  (S.  Car.)  383;  Illinois  Cent.  R. 
Co.  V.  East  Sioux  Falls  Quarry  Co.. 
33  S.  Dak.  63,  144  N.  W.  724; 
Buffalo  Bayou  &c.  R.  Co.  v.  Ferris, 
26  Tex.  588;  London  &c.  R.  Co.  v. 
Grand  Junction  Canal  Co.,  1  Eng. 
R.  &  Can.  Cas.  224.  For  manj-  ad- 
ditional authorities,  see  post,  § 
1204.  The  legislature  can  not,  in 
the  exercise  of  the  right  of  emi- 
nent domain,  provide  for  the  ap- 
propriation of  private  propertj^  to 
a  mere  private  enterprise,  in  which 
the  public  have  manifestly  no  in- 
terest. But  railroad  companies, 
even  when  owned  by  individuals, 
are  not  private  enterprises  merely, 
and  the  legislature  may  authorize 
such  incorporations  to  take  the 
necessary  private    property   to   the 


use  of  their  rriads  in  invitum. 
BroM^n  V.  Beatty,  34  Miss.  227,  69 
Am.   Dec.  389. 

63  North  Missouri  R.  Co.  v.  Gott, 
25  .AIo.  540;  State  v.  Clarke,  25  N. 
J.  L.  54;  State  v.  Trenton,  36  N. 
J.  L.  198;  Hudson  River  R.  Co.  v. 
Outwater,  3  Sandf.  (N.  Y.)  689; 
Norfolk  &c.  R.  Co.  v.  Ely,  95  N. 
Car.  77.  See  Seaboard  Air  Line 
R.  Co.  V.  Olive,  142  N.  Car.  257, 
55  S.  E.  263. 

"McCrea  v.  Port  Royal  R.  Co., 
3  S.  Car.  381,  16  Am.  Rep.  729; 
Moore  v.  Superior  &c.  R.  Co.,  34 
Wis.  173.  But  a  corporation  whose 
charter  provides  a  mode  of  con- 
demnation may  proceed  under  the 
general  law  for  the  assessment  of 
damages  when  it  chooses  to  do 
so.  Cascades  R.  Co.  v.  Sohns, 
1   Wash.  Ter.  557. 

^^'  McKennon  v.  St.  Louis  &c. 
Ry.  Co.,  69  Ark.  104,  61  S.  W.  383; 


,^  1196  RAILROADS  694 

so  long;  as  the  use  to  which  they  are  to  be  devoted  is  a  public 


Zircic  V.  Southern  R.  Co.,  102  \'a. 
17,  45  S.  E.  802,  102  Am.  St.  805; 
Smith  V.  Gould,  59  Wi.s.  631,  18  N. 
W.  457,  61  Wis.  31,  20  N.  W.  369. 
See  also  New  York  &c.  R.  Co.  v. 
Long,  69  Conn.  424,  Zl  All.  1070; 
Savannah  &c.  R.  Co.  v.  Postal  Tel. 
&c.  Co.,  112  Ga.  941.  38  S.  E.  353; 
Atlanta  &c.  R.  Co.  v.  Penny.  119 
Ga.  479,  46  S.  E.  665;  ChicaRo  &c. 
R.  Co.  V.  Lake,  71  111.  Z2,Z\  Fall 
River  Iron  Works  v.  Old  Colon}- 
&c.  R.  Co.,  5  Allen  (Mass.)  221; 
State  V.  National  Docks  &c.  Co.. 
57  N.  J.  L.  86.  30  Atl.  183;  Re  New 
York  &c.  R.  Co.,  11  N.  Y.  248; 
Wilson  V.  Pittsburgh  &c.  R.  Co., 
222  Pa.  St.  541.  72  Atl.  235;  Pitts- 
burgh &c.  R.  Co.  V.  Peet,  152  Pa. 
St.  488.  25  Atl.  612.  19  L.  R.  A.  467: 
Baltimore  &c.  R.  Co.  v.  Pittsburgh 
&c.  R.  Co.,  17  W.  Va.  812;  Doe  v. 
North  Staffordshire  R.  Co..  16  Q. 
R.  526.  Rut  see  Louisiana  R.  &c. 
Co.  V.  Xavier  Realty.  115  La.  Ann. 
.328,  39  So.  1;  Riley  v.  Charleston 
c^'c.  Co..  71  S.  Car.  457,  51  S.  E. 
485.  In  Doitrichs  v.  Lincoln  8:c. 
R.  Co..  13  Ncbr.  361,  13  N.  W.  624. 
it  is  said  that  the  question  as  to 
the  necessity  of  taking  the  lands 
is  prima  facie  a  question  for  the 
corporation  to  determine.  A  large 
discretion  must  be  accorded  to  a 
railroad  company  in  determining 
its  route  and  the  location  of  its 
tracks,  turnouts,  switches,  and  de- 
pot-houses, for  which  land  may  be 
taken,  subject,  of  course,  to  judicial 
supervision  to  prevent  abuse  of 
such  discretion.  Colorado  E.  R. 
Co.  V.  Union  P.  R.  Co..  7  R.  & 
Corp.  L.  J.  ZIZ,  41   Fed.  293.     See 


also  Zircle  v.  Southern  R.  Co..  102 
\'a.  17.  45  S.  E.  802,  and  note.  102 
.\m.  St.  805  and  note;  Memphis  &c. 
R.  Co.  v.  Union  R.  Co.,  116  Tenn. 
500,  95  S.  W.  1019,  1027;  United 
States  V.  Baltimore  &c.  R.  Co.,  27 
App.  (D.  C.)  105.  In  New  York 
Central  R.  Co.  v.  Metropolitan  Gas 
Light  Co..  5  Hun  (N.  Y.)  201, 
Davis,  P.  J.,  speaking  for  the  court, 
said:  "Upon  the  point  that  the 
lands  proposed  to  be  taken  are  not 
necessar\-,  because  it  might  be 
practicable  for  the  respondents  to 
lajr  their  tracks  upon  their  own 
lands  by  adopting  another  curve, 
we  arc  not  prepared  to  concur  with 
the  ai)pcllant'3  counsel.  It  is  not  a 
question  f)f  possibilities,  nor  of 
strict  practicabilities  within  the 
opinion  of  engineers.  No  route 
was  ever  surveyed  for  a  railroad 
\\hicli  was  not  open  to  such  ob- 
jections, and  if  the  right  to  take 
lands  was  to  be  determined  by 
conflicting  evidence  whether,  after 
all,  the  tracks  might  not,  with 
greater  or  equal  convenience,  be 
laid  elsewhere,  the  construction  of 
a  road  would  be  attended  with 
the  most  serious  embarrassments. 
Reasonable  necessitj'  must  be 
shown,  but  a  reasonable  discretion 
must  be  allowed  to  the  officers  who 
locate  the  tracks  of  a  railroad,  for 
it  can  not  be  presumed  that  the 
corporation  is  unnecessarily  incur- 
ring heavy  expenses  in  obtaining 
lands,  when  those  it  already  has 
would  answer  its  purposes.  We 
think  enough  has  been  shown  to 
bring  this  case  within  the  rule  of 
the    authorities    in    respect   to    this 


695 


APPROPRIATION    UNDER    THE   EMINENT    DOMAIN 


§1197 


use/'*'  But  courts  may  interfere  where  there  is  an  abuse  of  this 
discretion  under  a  mere  general  power  and  no  reasonable  neces- 
sity exists."' 

§  1197.  Limits  of  rule  as  to  discretion — What  is  reasonably 
necessary. — The  rule  stated  in  the  last  preceding  section  is  also 
subject  to  the  limitation  that  the  taking  must  be  within  the 
delegated  power.  Thus  an  authority  to  ctnidcmn  lanrls  "ad- 
joining their  road  as  constructed  on  their  right  of  way  as  lo- 
cated," does  not  include  power  to  take  lands  which  merely  adjoin 
a  side-track  leading  from  the  railroad  route  to  a  freight  house,'''* 
and  authority  to  take  necessary  lands  to  "widen"  the  right  of  way 
does  not  confer  power  to  take  adjoining  lands  upon  which  to 
relay  the  main  track  at  such  a  distance  from  the  former  line  as 
to  amount  to  a  relocation."^  So,  where  the  charter  of  a  railroad 
company  authorized  it  to  take  land  contiguous  to  the  line  of 
its  road  for  depots  and  other  appurtenances,  provided  the  amount 
so  taken  should  not  exceed  fixe  acres,  it  w'as  held  that  the  com- 
pany could  not  take,  without  the  consent  of  the  ow^ner,  as  a  site 
for  a  warehouse,  a  tract  of  land  four  hundred  yards  from  the  line 
of  their  road,  together  with  a  narrow  strip  of  land  extending  from 
tlieir  main  track  to  the  site  of  the  proposed  warehouse,  on  which 


question.  N.  Y.  &  Harlem  R.  Co., 
Matter  of,  v.  Kip,  46  N.  Y.  546,  7 
Am.  Rep.  385;  Boston  &  Albany 
R.  Co.,  Matter  of,  53  N.  Y.  574." 

^6  Courts  have  the  right  to  deter- 
mine whether  the  use  is  public  or 
not.  and  to  restrain  the  appropria- 
tion of  lands  for  any  other  than 
a  public  use.  Consolidated  Chan- 
nel Co.  V.  Central  Pacific  R.  Co., 
51  Cal.  269:  Sadler  v.  Langham,  34 
Ala.  311;  Stockton  &c.  R.  Co.  v. 
Stockton,  41  Cal.  147;  New  Central 
Coal  Co.  V.  George's  Creek  Coal 
&c.  Co..  :^7  Md.  537:  St.  Paul  &c. 
R.  Co..  In  re,  34  Minn.  227.  25  N. 
W.  345;  Concord  R.  Co.  v.  Greely. 
17  N.  H.  47:  McQuillen  v.  Hatton. 
42   Ohio   St.  202. 


6"  Re  Boston  &c.  R.  Co.,  53  N. 
Y.  574;  Long  Island  R.  Co.  v.  Sher- 
wood, 205  N.  Y.  1,  98  N.  E.  169; 
Wilson  V.  Pittsburgh  &c.  R.  Co., 
222  Pa.  St.  541,  72  Atl.  235.  See 
also  Vallego  &c.  R.  Co.  v.  Home 
Sav.  Bank,  24  Cal.  App.  166,  140 
Pac.  974;  Board  v.  Johnson,  86 
Conn.  151,  84  Atl.  727,  41  L.  R.  A. 
(N.  S.)  1024.  This  is  also  stated 
or  conceded  in  most  of  the  cases 
cited  in  the  last  preceding  notes. 

^*  State  v.  United  New  Jersey 
&c.  R.  Co..  43  N.  J.  L.  110.  See 
also  Tudor  v.  Chicago  &c.  R.  Co., 
154  111.   129,  39  N.   E.   136. 

•'^  Beck  V.  United  New  Jersey 
&c.  R.  Co..  39  N.  J.  L.  45. 


§  lly*" 


RAILROADS 


696 


to  build  a  side-track  or  branch  road,  althoug-h  the  whole  quantity 
required  for  the  warehouse  and  the  road  leading  to  it  would  not 
exceed  five  acres.'^'*  It  is  said  that  the  power  of  a  railroad  to 
take  lands  is  limited  to  what  is  necessary  in  order  that  it  may 
fulfill  its  public  duties.'^  But  the  necessity  which  will  justify  a 
taking  is  not  such  an  imperative  necessity  as  renders  the  lands 
sought  to  be  condemned  indispensable  to  the  operation  of  the 
road,  for  the  company  may  take  lands  which  are  reasonably  re- 
quisite to  its  use.'-     The  fact  that  other  lands  may  be  taken  by 


70  Bird  V.  Wilmington  &c.  R.  Co.. 
8  Rich.  Eq.  (S.  Car.)  46,  64  Am. 
Dec.   739. 

'^i  Tracy  v.  Elizabcthtown  &c.  R. 
Co.,  80  Ky.  259.     See  South  Caro- 
lina  R.    Co.   V.   Blake,  9   Rich.    (S. 
Car.)    228.     In   the   first  case  cited 
the   court   said:   "Even   where   it   is 
conceded    that    the    use    is    public, 
the    necessity    and    extent    of    the 
exercise  of  the   power   of   eminent 
domain   belongs  to  the   legislature, 
subject     to     two     conditions — first, 
that    just     compensation     shall     be 
made:   and,   second,   that  the   prop- 
erty desired  to  be  condemned   will 
conduce,    to    some    extent,    to    the 
accomplishment   of   the    public    ob- 
ject to  which   it  is  to  be  devoted. 
With    the    degree    of   necessity,    or 
the    extent   to   which    the    property 
will    advance    the    public    purpose, 
the    courts    have    nothing    to    do." 
See  also   Western  Un.  Tel.   Co.  v. 
South   &c.  R.   Co..   184  Ala.  66.  62 
So.    788,      And    in    the    case    from 
South    Carolina    it    was    held    that 
nn    application   by   a   railroad    com- 
pany  for  the   appointment  of  com- 
missioners   to    assess    the    A-alue   of 
land    sought    to    be    taken    should 
set  forth  the  particular  purpose  for 
which   it  is  needed,  and   should  be 
accompanied  by  affidavits  or  other 


evidence  showing  the  necessity  for 
the  appointment  and  if  the  land- 
owner traverses  the  existence  of  a 
necessity  justifying  the  condemna- 
tion, a  trial  and  decision  must  be 
had. 

"-  Southern   Pac.   R.   Co.  v.   Ray- 
mond,  53   Cal.  223;    Mansfield   &c. 
R.  Co.  V.  Clark.  23  Mich.  519:  Han- 
nibal &c.  R.  Co.  V.  Muder.  49  Mo. 
165:    New    York    Central    R.    Co., 
Matter  of,  11  N.  Y.  248;  Toledo  &c. 
R.  Co.  V.  Daniels,  16  Ohio  St.  390: 
Philadelphia    &c.    R.    Co.    v.    Wil- 
liams,  54   Pa.   St.   103;   Eldridge  v. 
Smith,  34  Vt.  484;  Sadd  v.  Maldon 
&c.  R.  Co..  6  Exch.  143.     See  also 
Tllyes    v.    White    River    Light    &c. 
Co.,   175   Tnd.   118,  93   N.   E.   670: 
Chicago  &c.   R.   Co.  v.   Baugh,  175 
Tnd.  419,  94  N.  E.  571    (citing  text 
and   numerous   cases).      A   railroad 
corporation  which  has  full  authori- 
ty to   construct   its   road    upon    any 
route   which   it   may  adopt,   subject 
to   the   condition   that    it   shall    not 
cross  the  streets  of  a  city  without 
permission    from    the    city   council, 
can    lay   out   its    road    through    the 
city  and  condemn  land  for  a  right 
of  way  without  first  obtaining  per- 
mission      to       cross       intervening 
streets.     The  necessity  for  the  use 
of  certain  property  in  the  construe- 


697 


APPROPRIATION    UNDER   THE   EMINENT    DOMAIN 


§  1197 


whicli  the  route  of  a  railway  between  its  charter  termini  can  be 
shortened,"  or  that  another  location  would  do  less  damage,'-'  or 
that  other  lands  in  the  vicinity  which  would  answer  its  purpose 
just  as  well  could  l)e  ol)tained  ])y  purchase.'"'  is  not  sufficient 
reason  for  interference  by  the  courts  with  the  action  of  a  railroad 
corporation  in  locating  its  road."*^  So  the  fact  that  passengers 
may  rarely,  if  ever,  travel  over  the  tracks  of  a  terminal  railroad 
whose  principal  business  is  the  shifting  of  cars  from  one  railroad 
to  another,  will  not  deprive  it  of  the  right  to  exercise  the  power 
of  eminent  domain,  if  it  is,  as  a  matter  of  fact,  organized  to  do  a 


tion  and  operation  of  a  railroad 
need  not  be  made  certain  before 
the  property  is  condemned.  Chi- 
cago &c.  R.  Co.  V.  Dunbar,  100  111. 
110;  Memphis  &c.  R.  Co.  v.  Union 
R.  Co.,  116  Tenn.  500,  95  S.  W. 
1019;  California  Southern  R.  Co. 
V.  Kimball,  61  Cal.  90;  Gilbert  Ele- 
vated R.  Co.,  Matter  of,  70  N.  Y. 
361;  Stoughton  v.  Paul,  173  Mass. 
148.  53  N.  E.  272.  Reasonable  and 
not  absolute  necessity  is  all  that 
is  usually  required,  and  this  ma}' 
include  property  necessary  for  fu- 
ture needs.  Miller  v.  Pulaski,  114 
Va.  85.  75  S.  E.  lei.  See  also  Michi- 
gan Cent.  R.  Co.  v.  Ferguson,  162 
Mich.  220.  127  N.  W.  320. 

"^  South  Minnesota  R.  Co.  v. 
Stoddard.  6  Minn.  150;  Hentz  v. 
Long  Island  R.  Co..  13  Barb.  (N. 
Y.)  646. 

"4  New  York  &c.  R.  Co.  v. 
Young,  ZZ  Pa.  St.  175;  New  York 
&c.  R.  Co.  V.  Metropolitan  Gas- 
Ljght  Co..  5  Hun  (N.  Y.)  201.  See 
also  Union  Pac.  R.  Co.  v.  Colorado 
Postal  Tel.  Co.,  30  Colo.  133.  69 
Pac.  564.  97  Am.  St.  106.  A  par- 
ticular route  sought  to  be  con- 
demned by  a  railroad  company  for 
the  use  of  its  road  is  not  rendered 


unnecessary  because  of  the  exist- 
ence of  another  route  equally  good 
and  convenient,  both  for  the  prop- 
erty-owner and  the  company.  Cali- 
fornia &c.  R.  Co.  V.  Hooper,  76 
Cal.  404,  18  Pac.  599.  (But  see 
Santa  Ana  v.  Gilmacher,  133  Cal. 
399,  65  Pac.  883).  See  also  Colo- 
rado &c.  R.  Co.  V.  Union  Pac.  R. 
Co..  41   Fed.  293. 

"  Eldridge  v.  Smith,  34  Vt.  484; 
Ford  V.  Chicago  &c.  R.  Co.,  14 
Wis.  609,  80  Am.  Dec.  791;  Lodge 
V.  Philadelphia  &c.  R.  Co.,  8  Phila. 
(Pa.)  345;  New  York  &c.  R.  Co. 
V.  Kip.  ^e  N.  Y.  546,  7  Am.  Rep. 
385. 

"^  See  Colorado  Eastern  R.  Co. 
V.  Union  Pac.  R.  Co.,  41  Fed.  293; 
Pittsburgh  &c.  R.  Co.  v.  Sanitary 
Dist..  218  111.  290.  75  N.  E.  892, 
2  L.  R.  A.  (N.  S.)  226;  Kansas  &c. 
R.  V.  Northwestern  &c.  Co..  161 
Mo.  288.  61  S.  W.  684,  51  L.  R.  A. 
936,  84  Am.  St.  717:  St.  Louis  &c. 
R.  Co.  V.  Hannibal  &c.  Co.,  125 
Mo.  82.  28  S.  W.  483;  Struthers  v. 
Dunkirk  &c.  R.  Co..  87  Pa.  St.  282; 
Cane  Bolt  R.  Co.  v.  Hughes.  31 
Tex.  Civ.  App.  565.  72  S.  W.  1020; 
Postal  Tel.  &c.  Co.  v.  Oregon  &r. 
R.   Co..  23   Utah    474.  65   Pac.   735. 


?  1197 


UAILROADS 


698 


general  railroad  business."'  A  railroad  company  which  has 
leased  land  to  other  parties  for  purposes  which  increased  railroad 
travel  is  not  required  to  resume  possession  of  such  land  under  a 
power  reserved  by  the  lease,  and  employ  it  for  its  own  necessary 
structures  before  it  can  condemn  other  land  for  that  purpose.  In 
a  recent  case,  in  proceedings  to  condemn  land,  it  appeared  that 
the  petitioner's  road  ran  to  a  beach  much  frequented  as  a  sum- 
mer resort,  and  fiuMiished  the  transportation  thereto,  and  that 
there  was  great  need  of  a  station,  for  the  accommodation  of 
passengers.  The  petitioner  owned  land  at  the  beach,  which  had 
been  leased  to  persons  who  had  fitted  it  up  as  a  pleasure  ground, 
lor  the  accommodation  of  \  isitors  to  the  beach  ;  and  a  station 
built  on  this  land  would  destroy,  in  a  large  measure,  the  useful- 
ness of  the  place  as  a  summer  resort,  whereby  the  petitioner's 
business  would  be  injured.  It  was  held  that  the  petitioner  was 
entitled  to  have  land  condemned  for  such  station  purposes,  even 
though  the  land  owned  and  leased  by  it  was  available."^  But  one 
court  at  least  has  held  that  a  railroad  company  can  not  condemn 
lands  for  any  purpose  when  it  already  owns  lands  equally  useful 
for  that  purpose. ^^ 


90  Am.  St.  705.  Tiie  discretion  ex- 
ercised by  a  railroad  corporation 
in  selecting  land  for  its  purposes 
will  not  be  interfered  with  unless 
it  clearly  appears  that  it  has  ex- 
ceeded its  powers  or  acted  in  bad 
faith.  Fall  River  Iron  Works  v. 
Old  Colony  R.  Co..  5  .\llen  (Mass.) 
221;  Virginia  R.  Co.  v.  Elliott.  5 
Nev.  358;  South  Carolina  R.  Co.  v. 
Blake,  9  Rich.  (S.  Car.)  228;  Cot- 
ton V.  Mississippi  &c.  Co.,  22 
Minn.  372;  Board  of  Supervisors 
V.  Gorrell,  20  Grat.  (Va.)  484.  But 
see  Rainey  v.  Red  River  &c.  R. 
Co.,  99  Tex.  276,  89  S.  VV.  768.  3 
L.  R.  A.  (N.  S.)  590.  The  general 
allegation  in  a  petition  for  the 
condemnation  of  certain  lands  by 
a  railroad  company,  that  "a  part 
of  each  of  said  lands  is  necessary 


to  petitioner  for  its  right  of  way, 
side-tracks,  depot  and  depot 
.grounds,  freight  yards,  shops  and 
appurtenances,  for  the  construction 
and  operation  of  its  road,"  was 
held  to  be  a  sufficient  statement 
of  the  purposes  for  which  the  land 
was  sought  to  be  condemned. 
Suver  V.  Chicago  &c.  R.  Co..  123 
111.  293.  14  N.  E.  12. 

77  Collier  v.  Union  R.  Co.,  113 
Tenn.  96,  83  S.  W.  155. 

7S  In  re  New  York  Central  &c. 
R.  Co..  55  Hun  603,  8  N.  Y.  S.  290. 
aftlrmed  121  N.  Y.  665,  mem.  24 
N.  E.  1093. 

79  New  Central  Coal  Co.  v. 
George's  Creek  Coal  Co..  37  Md. 
537.  In  Rainey  v.  Red  River  &c. 
R.  Co..  99  Tex.  276.  89  S.  W.  768, 
3   L.    R.   A.    (N.   S.)    590,  it   is   held 


699 


APPROPRIATION    UNDER    THF:    EMINKNT    DOMAIN 


§1198 


§1198  (954a).  Company  may  be  compelled  to  condemn. —  It 
is  not  only  true  that  the  right  to  condemn  may  be  delegated  to  h 
railroad  company,  but  such  a  corporation  may  also  be  required 
to  condemn  in  order  to  perform  the  duties  lawfully  devolved 
\\\nm  it.  I'his  has  been  so  decided  by  the  Supreme  Court  of  the 
United  States.  Thus,  a  statute  requiring  a  conii)any  to  furnish 
track  connections,  when  a  reasonable  regulation  in  the  interests 
and  for  the  accommodation  of  the  public  has  been  held  constitu- 
tional, although  it  necessitated  the  exercise  of  the  power  of 
eminent  domain  by  the  company  and  the  incurring  of  some  slight 
expense.®" 

§  1199  (955).  Construction  of  statutes  granting  right  to  con- 
demn.— The  exercise  of  the  power  of  eminent  domain  l)y  a  rail- 
road or  other  corporation  for  public  use  being  against  common 
right,  it  cannot,  ordinarily,  be  implied  or  inferred  from  a  mere 
grant  of  authority  to  construct  ptiblic  works,®^  but  must  be  given 
in  express  terms  or  by  necessary  implication.®-     And  it  is  said 


that  statutory  authority  to  con- 
demn for  machine  shops  and  ter- 
minals does  not  give  a  railroad 
company  power  to  act  arbitrarily, 
and  that  the  needless  location  of 
such  shops  and  terminals  near  pri- 
vate property  so  as  to  constitute 
a  nuisance,  may  be  enjoined.  Cit- 
ing Baltimore  &c.  R.  Co.  v.  Fifth 
Baptist  Church,  108  U.  S.  317.  2 
Sup.  Ct.  719,  27  L.  ed.  739;  Ridge 
V.  Pennsylvania  R.  Co.,  58  N.  J. 
Eq.  176,  43  Atl.  275;  Louisville  &c. 
Terminal  Co.  v.  Jacobs,  109  Tenn. 
727.  72  S.  W.  954,  61  L.  R.  A.  188: 
Willis  V.  Kentucky  &c.  Co.,  104 
Ky.  186.  46  S.  W.  488.  But  com- 
pare Dolan  V.  Chicago  &c.  R.  Co., 
118  Wis.  362,  95  N.  W.  385;  Austin 
V.  Augusta  &c.  R.  Co.,  108  Ga.  671, 
686.  34  S..  E.  852.  47  L.  R.  A.  755. 
'^f  Wisconsin  &c.  R.  Co.  v.  Jacob- 
son.  179  U.  S.  287,  21  Sup.  Ct.  115. 


45  L.  ed.  194.  See  also  Worcester 
V.  Norwich  &c.  R.  Co.,  109  Mass. 
112;  Green  v.  Dutchess  &c.  R.  Co., 
58  X.  Y.  152,  163;  People  v.  New 
York  &c.  R.  Co.,  104  N.  Y.  58.  67, 
9  N.  E.  856.  58  Am.  Rep.  484; 
Muhlker  v.  New  York  &c.  R.  Co., 
197  U.  S.  544,  25  Sup.  Ct.  522.  524, 
49  L.  ed.  872;  Gates  v.  Boston  &c 
R.   Co.,   53   Conn.  333,   5   Atl.  695 

81  Allen  V.  Jones,  47  Ind.  438 
People  V.  Rochester.  50  N.  Y.  525 
See  also  Murphy  v.  Kingston  &c 
R.  Co..  11  Ont.  582;  Leeds  v.  Rich- 
mond, 102  Ind.  372,  1  N.  E.  711 
Boston  &c.  R.  Corp.  v.  Salem  &c. 
R.   Co.,  2  Gray  (Mass.)    1. 

82  Miami  Coal  Co.  v.  Wigton,  19 
Ohio  St.  56q;  Schmidt  v.  Dens- 
more,  42  Mo.  225;  Butler  v.  Thom- 
asville.  74  Ga.  570;  Phillips  v.  Dun- 
kirk &c.  R.  Co..  78  Pa.  St.  177.  If 
a  particular  power  is  omitted  from 


§1199 


RAILROADS 


700 


that  an  implication  in  fa\  or  of  such  rig-ht  will  not  control  unk-ss 
it  arises  from  a  necessity  so  absolute  that,  without  it.  the  ^-rant 
itself  will  be  defeated.*''  Statutes  .s^ranting  the  ])ower  of  eminent 
domain  to  corporations  will  he  strictly  construed.^*  But  such  a 
construction  will  l)e  .qiN-en,  if  possible,  as  will  carry  into  efifect 
the  manifest  purpose  for  which  the  act  \vas  passed.*^     And  gen- 


thosc  einimerated  this  is  to  l)c 
taken  as  a  prohibition  against  its 
exercise  unless  there  is  an  impera- 
tive implication  of  its  inclusion. 
Coiinollsville  &c.  Ry.  Co.  v.  Mar- 
kleton  Hotel  Co.,  247  Pa.  St.  565, 
93  Atl.  635,  Ann.  Cas.  1916E,  1213. 

83  Pennsylvania  R.  Co.'s  Appeal, 
93   Pa.   St.   150. 

84  Southern  Pac.  R.  Co.  v.  Wil- 
son, 49  Cal.  396;  Waterbury  v. 
Phtt,  75  Conn.  387,  53  Atl.  958. 
96  Am.  St.  229;  Alabama  Gt. 
Soutliern  R.  Co.  v.  Gilbert,  71  Ga. 
591 ;  Chestatee  &c.  Co.  v.  Caven- 
ders  Creek  Co.,  119  Ga.  354.  46  S. 
E.  422,  100  Am.  St.  174  and  note; 
Chicago  &c.  R.  Co.  v.  Wiltse,  116 
111.  449,  6  N.  E.  49;  Lieberman  v. 
Chicago  &c.  R.  Co.,  141  111.  140, 
30  N.  E.  544;  Chicago  &c.  R.  Co. 
V.  Chicago  Mechanics'  Inst.,  239 
III.  197,  87  N.  E.  933;  Goddard  v. 
Chicago  &c.  R.  Co.,  104  111.  App. 
526,  affi'd  in  202  111.  362.  66  N.  E. 
1066;  Eckard  v.  Ft.  Wayne  &c. 
Trac.  Co.,  181  Ind.  352,  104  N.  E. 
762;  F.  W.  Cook  In  v.  Co.  v.  Ev- 
ansville  Terminal  R.  Co.,  175  Ind. 
3,  93  N.  E.  279;  Spofford  v.  Bucks- 
port  &c.  Co.,  66  Maine  26:  Jersey 
City  V.  Central  R.  Co..  40  N.  J.  Eq. 
417,  2  Atl.  262;  Wa.Miington  Ceme- 
tery V.  Prospect  &c.  R.  Co..  68  N. 
Y.  591 ;  Erie  R.  Co.  v.  Steward,  61 
App.  Div.  480,  70  N.  Y.  S.  690:  Lea 
V.  Johnston,  9   Ircd.    (N.   Car.)    15; 


Pittsburgh  &c.  R.  Co.  v.  Bruce,  102 
Pa.  St.  23;  Norfolk  &c.  R.  Co.  v. 
Lynchburg  Cotton  Mill  Co.,  106 
\'a.  376,  56  S.  E.  146.  "An  act  of 
this  sort  deserves  no  favor;  to  con- 
strue it  liberally  would  be  sinning 
against  the  rights  of  property." 
Bland,  J.,  in  Binney's  Case,  2  Bland 
Ch.  (Md.)  99.  "There  is  no  rule 
more  familiar  or  better  settled  than 
this:  that  grants  of  corporate  pow- 
er, being  in  derogation  of  common 
right,  are  to  be  strictly  construed; 
and  this  is  especially  the  case 
where  the  power  claimed  is  a  dele- 
gation of  the  right  of  eminent  do- 
main, one  of  the  highest  powers 
of  sovereignty  pertaining  to  the 
state  itself,  and  interfering  most 
seriously  and  often  vexatiously 
with  the  ordinary  rights  of  prop- 
erty'." Currier  v.  Marietta  &c.  R. 
Co..  11  Ohio  St.  228.  See  .also 
Piatt  v.  Pennsylvania  Co.,  43  Ohio 
St.  228,  1  N.  E.  420;  Puyallup  v. 
Lacey,  43  Wash.  110,  86  Pac.  215. 
8^'  Pittsburgh  v.  Scott,  1  Pa.  St. 
309;  Bellona  Company's  Case,  3 
Bland  Ch.  (Md.)  442.  Thus  it  has 
been  recently  held  that  though  a 
statute  providing  for  the  sale  of 
property  and  franchise  of  a  cor- 
poration does  not  expressly  de- 
clare that  the  purchaser  shall  have 
the  right  to  take  lands  'by  eminent 
domain,  a  provision  therein  that 
it  shall  be  entitled  to  all  the  rights. 


701 


APPROPRIATION    INDKK    THE   EMINENT    DOMAIN 


^   1  •_'!)() 


erally,  ihuugh  the  lc\i;islati\c'  deterniination  that  the  use  for 
which  property  authorized  to  be  taken  by  eminent  (hmiain  is  <i 
public  one  is  subject  to  review  by  the  courts,  they  will  induls^e 
a  reasona])le  presumption  in  favor  of  the  legislative  decision.^"* 

§  1200  (956).  Right  of  foreign  and  consolidated  companies 
to  condemn. — A  foreign  corporation  may  be  authorized  to  exer- 
cise the  power  of  eminent  domain,  in  the  absence  of  any  constitu- 
tional provision  to  the  contrary. ^^  But  foreign  corporations  are 
forbidden  to  exercise  that  power  by  the  constitutions  of  some  of 


liberties,  privileges  and  franchises 
of  the  corporation  whose  propertj' 
•  is  sold  is  sufficient  to  save  that 
right.  BrinkerhofT  v.  Newark  &c. 
Traction  Co,  66  N.  J.  L.  478,  49 
Atl.  812.  See  also  for  cases  in 
which  the  right  was  held  to  be 
granted.  Central  P.  R.  Co.  v. 
Feldman,  152  Cal.  303,  92  Pac.  849 
(freight  house);  Gillette  v.  Aurora 
R.  Co.,  228  111.  261,  81  N.  E.  1005; 
Eckart  v.  Ft.  Wajne  &c.  Trac.  Co.. 
181  Ind.  352,  104  N.  E.  762  (street 
railway  company  required  to  per- 
mit intcrurban  cars  authorized  to 
carry  express  matter  to  be  trans- 
ported over  its  track  has  power  to 
condemn  for  necessarj^  terminal 
for  such  business).  "The  power 
given  to  a  railroad  company  to 
condemn  private  property  for  its 
own  use  is  to  be  exercised  within 
strict  limits.  The  law  does  not 
authorize  the  incorporating  of  a 
company  with  a  roving  commission 
to  go  to  any  points  in  the  state  at 
will  and  condemn  land  in  spots.  Tt 
is  required  of  the  parties  scckins' 
to  be  incorporated  as  a  railroad 
company  that  they  state  in  their 
articles  of  association  the  places 
from  and  to  which  the  road  is  to 


be  constructed,  and  beyond  the 
course  between  the  points  named 
(except  as  the  law  authorizes 
branches)  the  corporation  has  no 
right  to  go."  Kansas  City  &c.  R. 
Co.  V.  Davis.  197  Mo.  669,  95  S.  W. 
881. 

s*"'  Ulmer  v.  T.ime  Rock  R.  Co., 
98  Maine  579,  57  Atl.  1001,  66  L. 
R.  A.  387. 

s'  Baltimore  &c.  R.  Co.  v.  Har- 
ris. 12  Wall.  (U.  S.)  65,  20  L.  ed. 
354;  Hagerla  v.  Mississippi  River 
&c.  Co.,  202  Fed.  776:  Southwest- 
cm  iScc.  R.  Co.  V.  Soutliern  &c.  Co., 
46  Ga.  43,  12  Am.  Rep.  585;  Dodge 
V.  Council  Bluffs,  57  Iowa  560.  10 
N.  W.  886.  Abbott  v.  New  York 
&c.  R.  Co.,  145  Mass.  450.  15  N.  E. 
91:  Gray  v.  St.  Louis  &c.  R.  Co., 
81  Mo.  126:  Peter  Townsend,  Mat- 
ter of.  39  N.  Y.  171;  Marks,  In  re, 
6  N.  Y.  S.  105:  State  v.  Sherman. 
22  Ohio  St.  411:  New  York  &c.  R. 
Co.  v.  Young.  33  Pa.  St.  175:  Balti- 
more &c.  R.  Co.  V.  Pittsburgh  &c. 
R.  Co..  17  W.  Va.  812:  Great 
Northern  R.  Co.  v.  McCord,  143 
Wis.  589,  128  N.  W.  432.  See  also 
Deseret  Water  &c.  Co.  v.  State. 
167  Cal.  147.  138  Pac.  981:  Illinois 
State  Trust  Co.  v.  St.  Louis  &c.  R. 


.^  1200 


l^AILROADS 


702 


the  states,**  and  a  statute  conferriiiiJ^  the  right  of  eminent  domain 
upon  "railroad  corporations  organized  under  the  laws  of  this 
state"  has  been  held  to  operate  as  a  denial  of  the  right  to  foreign 
railroad  corporations.*'-'     So,  under  the  Kentucky  statute  which 


Co.,  208  111.  419,  70  N.  E.  357: 
State  e.x  rel.  St.  Louis  &c.  R.  Co. 
V.  Cook,  171  Mo.  348,  71  S.  W. 
829;  Southern  Illinois  &c.  R.  Co. 
V.  Stone,  174  .Mo.  1,  32,  73  S.  W. 
453,  63  L.  R.  A.  311;  New  York 
&c.  R.  Co.  V.  Welsh,  143  N.  Y.  411, 
38  N.  E.  378,  42  Am.  St.  734.  That 
the  right  does  not  otherwise  exist, 
see  Illinois  State  Trust  Co.  v.  St. 
Louis  &c.  R.  Co.,  208  III.  419.  70  N. 
E.  357;  Chestatee  &c.  Co.  v.  Caven- 
ders  Creek  Co.,  119  Ga.  354,  46  S. 
E.  422,  100  Am.  St.  174. 

88  Foreign  corporations  arc  for- 
bidden to  exercise  the  right  of  em- 
inent  domain   by   Arkansas    Const. 

1874,  art.  12,  §  11.  In  Nebraska 
this  restriction  applies  only  to  for- 
eign railroad  corporations.     Const. 

1875,  art  11.  §  8.  Under  said  sec- 
tion, no  foreign  railroad  corpora- 
tion doing  business  in  the  state 
can  exercise  the  right  of  eminent 
domain,  or  have  power  to  acquire 
right  of  way  or  real  estate  for  de- 
pot or  other  uses,  unless  it  orga- 
nizes as  a  corporation  under  the 
state  laws.  State  v.  Scott,  22  Nebr. 
628,  36  N.  W.  121;  Trester  v.  Mis- 
souri Pac.  R.  Co.,  23  Nebr.  242,  36 
N.  W.  502.  A  foreign  corporation, 
which  has  not  become  a  corpora- 
tion under  the  laws  of  Nebraska, 
can  not  avail  itself  of  the  services 
of  another  corporation  to  acquire 
a  right  of  wa}^  and  may  be  en- 
joined from  appropriating  prop- 
erty for  a  right  of  way,  although 
the  property  has   been   condemned 


in  the  name  of  another  corporation. 
Koenig  v.  Chicago  &c.  R.  Co.,  27 
Nebr.  699.  43  N.  W.  423.  The  arti- 
cle of  the  Nebraska  constitution 
whicii  provides  that  no  foreign  rail- 
road corporation,  doing  business  in 
that  state,  shall  exercise  the  right 
of  eminent  domain,  or  have  power 
to  acquire  the  right  of  way  or  real 
estate  for  depot  or  other  uses,  un- 
til it  shall  have  become  a  body 
corporate,  pursuant  to  and  in  ac- 
cordance with  the  laws  of  that 
state,  docs  not  prohibit  existing 
companies,  one  of  which  is  a  do- 
mestic corporation,  from  becom- 
ing a  bod}^  corporate  by  consoli- 
dation, providing  such  consolida- 
tion is  made  pursuant  to  the  laws 
permitting  the  same,  and  by  which 
it  became  "a  body  corporate,  pur- 
suant to  and  in  accordance  with 
the  laws  of  tliis  state."  State  v. 
Chicago  &c.  R.  Co.,  25  Nebr.  156, 
41  N.  W.  125,  2  L.  R.  A.  564  and 
note:  State  v.  Missouri  Pac.  R. 
Co.,  25  Nebr.  164;  State  v.  Chicago 
&c.  R.  Co..  25  Nebr.  165,  41  N.  W. 
128. 

soilolbert  v.  St.  Louis  &c.  R. 
Co.,  45  Iowa  23.  And  it  has  been 
held  that  a  statute  conferring  the 
right  of  eminent  domain  on  any 
mining  company  does  not  include 
foreign  companies.  Chestatee  &c. 
Co.  v.  Cavenders  Creek  Co..  119 
Ga.  354.  46  S.  E.  422,  100  Am.  St. 
174.  See  also  St.  Louis  &c.  R.  Co. 
V.  Foltz,  52  Fed.  627,  where  it  was 
held     that     even     if    the     company 


708 


API'KOI'RIATION     INDKR    THE    EMINENT    DOMAIN 


§  1201 


{jrovides  that  no  forci.qn  railroad  corporation  shall  have  the  right 
t-r^  condemn  until  it  shall  have  lirst  complied  with  the  i)rovisions 
oi'  the  statute,  it  has  l)een  held  that  the  company  can  not  con- 
demn unless  it  not  only  files  a  copy  of  its  articles  of  incorporation 
in  the  office  of  the  secretary  of  state,  but  also  makes  proof  that 
a  certain  amount  per  mile  has  been  su1)scribed.  and  a  certain 
percentage  thereof  paid  in,  as  required  of  domestic  corpora- 
tions.^" A  domestic  railroad  company  does  not  lose  its  right  to 
condemn  b}-  consolidation,  under  the  laws  of  its  own  state,  with 
a  foreign  railroad  company."^  The  consolidated  corporation,  in 
such  a  case,  is  regarded  as  a  domestic  corporation  within  the 
meaning  of  the  statutes  regulating  condemnation  proceedings.°- 
But,  as  shown  in  the  next  section,  there  must  be  some  law 
authorizing  or  ratifying  the  consolidation.^^ 

§  1201  (957).  Exercise  of  the  right  by  de  facto  corporations. 
— As  a  rule  the  legal  existence  of  a  de  facto  corporation  can  be 
questioned  only  by  the  state  in  a  direct  proceeding  instituted  for 
that  purpose.  Accordingly,  the  courts  will  not  enjoin  a  corpora- 
tion from  condemning  land  for  a  public  purpose  on  the  ground 
that  the  corporation  was  irregularly  organized,^*  nor  wull  they, 


could  not  condemn  land  for  right 
of  way  and  depot  grounds,  it 
might  ac(|uire  the  same  b\'  contract 
or  estoppel. 

30  Evansville  &c.  Traction  Co.  v. 
Henderson    Bridge,   141    Fed.  51. 

01  Toledo  &c.  R.  Co.  v.  Dunlap. 
47  Mich.  456,  11  N.  W.  271;  Min- 
eral Range  R.  Co.  v.  Detroit  &c. 
Co.,  25  Fed.  515.  See  also  Pitts- 
burgh &c.  R.  Co.  V.  Gage.  280  111. 
639,  117  N.  E.  726;  Trester  v.  Mis- 
souri Pac.  R.  Co..  33  Nebr.  171. 
178,  49  N.  W.  1110:  Trenton  St.  R. 
Co.,  In  re  (N.  ].).  47  At).  810.  Nor 
by  the  fact  that  its  stock  is  held 
abroad.  Amoskeag  &c.  Co.  v. 
Worcester.  60  N.  H.  522. 

92  St.  Paul  &c.  R.  Co..  In  re.  36 
Minn.   85,  30   N.   W.  432:    State   v. 


Chicago  &c.  R.  Co..  25  Nebr.  156, 
41  N.  W.  125,  2  L.  R.  A.  564  and 
note;  Trester  v.  Missouri  Pac.  R. 
Co.,  33  Nebr.  171.  178.  49  N.  W. 
1110.  See  also  California  Cent. 
R.  Co.  V.  Hooper,  76  Cal.  404,  18 
Pac.  599:  Postal  Tel.  &c.  Co.  v. 
Oregon  Short  Line  R.  Co.,  23  Utah 
474,  65  Pac.  735,  90  Am.  St.  705. 

0^  American  &c.  Co.  v.  Minnesota 
&c.  R.  Co..  157  111.  641,  42  N.  E. 
153:  post,  §  1201,  note  97. 

04  Reisner  v.  Strong,  24  Kans. 
410;  McAuley  v.  Columbus  &c.  R. 
Co.,  83  111.  348:  Aurora  &c.  R.  Co. 
V.  Miller,  56  Ind.  88:  Oregon  Short 
Line  R.  Co.  v.  Postal  Tel.  &c.  Co., 
Ill  Fed.  842.  A  court  of  equity 
will  not  extend  its  aid  by  injunc- 
tion  to   an    assignee   of  a   lease   of 


i<  1201 


RAILROADS 


704 


ii^.  many  jurisdictions,  allow  the  legality  of  the  incorporation  of  a 
cle  facto  railroad  corporation  to  be  questioned  in  condemnation 
proceedings."'"'     And  it  has  been  held  a  land-owner  should  not  be 


land  through  which  a  railroad  com- 
paiij-  seeks  to  condemn  a  right  of 
way,  when  it  is  shown  that  the 
assignee  who  is  denying  the  power 
of  the  companj'  to  condemn  land 
under  its  charter,  is  the  president 
of  a  rival  road,  but  he  will  be  left 
to  his  remedy  at  law.  Piedmont 
&c.  R.  Co.  V.  Speelman,  67  Md. 
260.  10  Atl.  n.  293.  In  Ward  v. 
Minnesota  &c.  R.  Co.,  119  111.  287. 
10  N.  E.  365,  the  court  held  that 
the  fact  that  an  engineer  had  been 
appointed,  tliat  tlio  line  of  the  pro- 
posed road  had  been  located,  and 
other  steps  taken  toward  the  build- 
ing of  the  road,  being  corporate 
acts,  tended  to  show  that  peti- 
tioner was  a  corporation  de  facto. 
"■'">  Niemcyer  v.  Little  Rock  &c. 
R.  Co.,  43  Ark.  Ill,  20  Am.  &  Eng. 
R.  Cas.  174;  Cincinnati  &c.  R.  Co. 
V.  Danville  &c.  R.  Co.,  75  111.  113: 
Brown  V.  Calumet  Riv.  R.  Co.,  125 
111.  600.  18  N.  E.  283;  Illinois  State 
Trust  Co.  v.  St.  Louis  &c.  R.  Co.. 
208  111.  419.  70  N.  E.  357;  Thomas 
V.  South  Side  Elevated  R.  Co..  218 
III.  571.  75  N.  E.  1058;  Aurora  &c. 
R.  Co.  V.  ATiller,  56  Ind.  88;  Na- 
tional Docks  &c.  R.  Co.  V.  Central 
R.  Co..  32  N.  J.  Eq.  755;  Oregon 
Cascade  Co.  v.  Baily,  3  Ore.  164; 
Morrison  v.  Indianapolis  tl'C.  R. 
Co..  166  Ind.  511.  ']()  N.  E.  961  (cit- 
ing text).  In  this  last  case  it  is 
said  that,  while  there  is  conflict 
among  the  authorities,  tlio  rule 
stated  in  the  text  is  supported  by 
the  weight  of  authority  and  rea- 
son,  and   the   following   authorities 


arc  cited  in  its  support:  Aurora 
&c.  R.  Co.  V.  Lawrenceburg,  56 
Ind.  80;  Oregon  &c.  R.  Co.  v.  Pos- 
tal Tel.  &c.  Co.,  Ill  Fed.  842,  10 
Am.  &  Eng.  Enc.  L.  1059;  Nie- 
meyer  v.  Little  Rock  &c.  R.  Co., 
43  Ark.  HI;  Spring  Valley  Water- 
works V.  San  Francisco,  22  Cal. 
434;  Union  Pacific  R.  Co.  v.  Col- 
orado Postal  Co..  30  Colo.  133,  69 
Pac.  564,  97  Am.  St.  106;  Brown 
V.  Calumet  River  R.  Co.,  125  111. 
600,  18  N.  E.  283;  St.  Louis  &c.  R. 
Co.  V.  Belleville  St.  R.  Co..  158  111. 
390,  41  N.  E.  916;  Aurora  &c.  R. 
Co.  v.  .Miller.  .S6  Ind.  88;  Reisner 
V.  Strong.  24  Kans.  410;  Portland 
&c.  Tpk.  Co.  V.  Bobb,  88  Ky.  226. 
10  S.  W.  794;  Briggs  v.  Cape  Cod 
Ship  Canal  Co.,  137  Mass.  71: 
Shrocder  v.  Detroit  &c.  R.  Co.,  44 
Mich.  387.  6  N.  W.  872;  Traverse 
City  &c.  R.  Co.  V.  Seymour,  81 
Mich.  378,  45  N.  W.  826;  Minne- 
apolis &c.  R.  Co.,  In  re,  Z(i  Minn. 
481.  32  N.  W.  556:  National  Docks 
R.  Co.  V.  Central  R.  Co.,  32  N.  J. 
Eq.  755,  and  cases  cited;  Welling- 
ton ^c.  R.  Co.  V.  Cashie  Lumber 
Co.,  114  X.  Car.  690.  19  S.  E.  646: 
Farnham  v.  Delaware  &c.  Canal 
Co..  61  Pa.  St.  265.  271;  Po.stal  Tel. 
&c.  Co.  V.  Oregon  &c.  R.  Co..  23 
Utah  474.  65  Pac.  735,  90  Am.  St. 
705.  See  also  Philadelphia  &c.  Co. 
V.  Inter  City  Link  R.  Co..  1Z  N.  J. 
86.  62  Atl.  184.  But  it  has  been 
held  in  Ohio  that  corporate  exist- 
ence and  the  right  to  exercise  the 
power  of  eminent  domain  can  only 
be    derived    from    legislative    enact- 


705 


Al'I'HOPHIATIOX    UNDER    THE    EMIXKXT    DOMAIN' 


§1201 


j;ermittc'(l  to  prtn-e,  as  a  defense  to  condemnation  ])r(jceeding'S 
instituted  by  a  rei^ularly  organized  railroad  corporation,  that  the 
company  was  incorporated  not  for  a  public  use.  but  for  the 
jirivate  purposes  of  the  cor])orators  only,  and  that  there  was  nf> 
public  necessity  for  the  road."'*  But,  to  constitute  even  a  dc 
facto  corporation,  there  must  be  some  law  under  which  it  could 
legally  have  been  incorporated,  and  an  attempt  to  consolidate, 
where  there  is  no  law  authorizing  it.  will  not  enable  the  con- 
solidated company  to  acquire  a  right  of  way  either  by  condemna- 
tion or  contract.®^  Furthermore,  it  is  said  that  a  corporation 
can  not  "act  simultaneously  in  the  dual  capacity  of  a  corporation 
de  jure  and  a  corporation  de  facto."  It  can  not  exercise  its  full 
powers  as  a  corporation  and  then  act  in  matters  outside  these 
powers  and  justify  the  latter  action  as  an  act  of  a  de  facto  corpo- 
ration. Thus,  it  has  been  held  that  a  railroad  company  author- 
ized to  condemn  lands  for  its  purposes  over  specified  lines  can 
not  use  all  these  powers  and  then  condemn  other  lands  over  other 


ment.  And  that  a  company  claim- 
ing to  act  under  a  special  charter 
must  show  that  both  have  been 
conferred  upon  it  by  a  valid  law, 
and  that  it  has  substantially  com- 
plied with  the  conditions  which 
that  law  has  annexed  to  the  power, 
before  it  can  demand  a  judgment 
of  condemnation.  Atkinson  v. 
Marietta  &c.  R.  Co.,  15  Ohio  St.  21. 
And  that  a  railroad  company  or- 
ganized under  the  general  railroad 
law  of  that  state  must,  in  order  to 
sustain  a  proceeding  for  appropri- 
ating land,  show  the  certificate  and 
public  record  of  its  organization  to 
be  strictly  in  conformity  with  the 
requisitions  of  the  law.  Atlantic 
&c.  R.  Co.  V.  Sullivant,  5  Ohio  St. 
276.  See  also  New  York  &c.  Co. 
v.  New  York.  104  N.  Y.  1.  10  N. 
E.  332;  St.  Joseph  &c.  R.  Co.  v. 
Shambaugh,  106  Mo.  557,  17  S.  W. 
581:    Brooklyn   &c.   R.   Co.,   Matter 


of,  12  X.  Y.  245;  Miller  v.  Prairie 
&c.  R.  Co..  34  Wis.  533;  Orrick 
School  Dist.  V.  Dorton,  125  Mo. 
439,  28  S.  W.  765.  And  a  de  jure 
corporation  can  not  ignore  its  stat- 
utory entity  and  limitations  and 
claim  the  right  to  condemn  as  a 
de  facto  corporation  beyond  its 
charter  limitations.  Boca  &c.  R. 
Co.  V.  Sierra  Valley  R.  Co.,  2  Cal. 
App.  546,  84  Pac.  298. 

^^  Powers  V.  Hazelton  &c.  R.  Co.. 
ZZ  Ohio  St.  429.  See  also  Rudolph 
V.  Pennsjdvania  &c.  R.  Co.,  166  Pa. 
St.  430,  31  Atl.  131;  Aurora  &c.  R. 
Co.  V.  Lawrenceburg,  56  Ind.  80. 

^"^  American  &c.  Co.  v.  Minneso- 
ta &c.  R.  Co.,  157  111.  641,  42  N.  E. 
153,  and  authorities  cited.  See  also 
New  Brighton  &c.  R.  Co.  v.  Pitts- 
burgh &c.  R.  Co.,  105  Pa.  St.  14. 
approved  in  Washington  &c.  R. 
Co.  V.  Coeur  D'Alene  R.  &c.  Co.. 
160  U.   S.   101,  16  Sup.  Ct.  231,  40 


§1202 


RAILROADS 


706 


lines  as  a  de  facto  corporation. °^  The  most  recent  as  well  as  the 
earlier  cases  are  practically  unanimous  in  holding'  that  a  de  facto 
corporation  may  exercise  the  right  of  eminent  domain,  or,  in 
other  words,  that  its  de  jure  existence  can  not  be  attacked  ;  but 
its  de  facto  existence  may  be  inquired  into,  as,  for  instance,  where 
there  is  no  law  under  which  the  company  could  have  been  in- 
corporated.^" 

§  1202  (958).  Right  to  condemn  where  road  is  leased  or  in 
hands  of  a  receiver. — It  is  said  that  personal  rights  and  privileges 
granted  to  a  corporation  can  only  b.e  exercised  by  its  board  of 
directors^  or  other  governing  body.  The  power  of  eminent  do- 
main is  granted  as  a  personal  trust,  and  can  not  be  delegated  or 
transferred  without  legislative  sanction ;  accordingly,  it  is  held 
that  neither  the  purchasers,-  nor  the  lessees,''  of  a  railroad  can 


L.  ed.  355;  American  Loan  &c.  Co. 
V.  Minnesota  &c.  R.  Co.,  157  111. 
641,  42  N.  E.  153;  Brown  v.  At- 
lanta R.  &c.  Co.,  113  Ga.  462,  39 
S.   E.  71. 

98  Boca  &c.  R.  Co.  v.  Sierra  Val- 
leys R.  Co.,  2  Cal.  App.  546.  84 
Pac.   298. 

99  Sisters  of  Charity  v.  Aforris 
R.  Co.,  84  N.  J.  L.  310.  86  Atl.  954, 
50  L.  R.  A.  (N.  S.)  236.  and  note, 
citing  the  recent  cases,  including: 
Chicago  &c.  R.  Co.  v.  Heidenrich, 
254  III.  231,  98  N.  E.  567,  Ann.  Cas. 
1913C,  266;  Gillette  v.  Aurora  R. 
Co..  228  111.  261,  81  N.  E.  1005; 
Smith  V.  Cleveland  &c.  R.  Co.,  170 
Ind.  382,  81  N.  E.  501,  and  others. 
See  also  Roaring  Springs  Transfer 
Co.  V.  Paducah  &c.  Co.  (Tex.  Civ. 
App.),  164  S.  W.  50. 

1  Eastern  R.  Co.  v.  Boston  &c. 
R.  Co.,  Ill  Mass.  125,  15  Am.  Rep. 
13.  See  also  Bridwcll  v.  Gate  City 
Terminal  Co.,  127  Ga.  520,  56  S.  E. 
627;  but  compare  State  v.  Proprie- 
tors (N.  J.),  33  Atl.  252;  Tennessee 


Cent.  R.  Co.  v.  Campbell,  109  Tenn. 
655,  11  S.  W.  112. 

2  Atkinson  v.  Marietta  R.  Co., 
15  Ohio  St.  21;  Mahoney  v.  Spring 
Valley  Water  Works,  52  Cal.  159; 
Braslin  v.  Somerville  Horse  R.  Co., 
145  Mass.  64,  13  N.  E.  65.  See  also 
Little  Rock  &c.  R.  Co.  v.  McGe- 
hee,  41  Ark.  202;  Piatt  v.  Pennsyl- 
vania Co.,  43  Ohio  St.  228,  1  N.  E. 
420.  But  see  as  to  purchaser  at 
judicial  sale.  North  Carolina  &c. 
R.  Co.  V.  Carolina  Cent.  R.  Co., 
83  N.  Car.  489;  Lawrence  v.  Mor- 
gan's &c.  R.  Co.,  39  La.  Ann.  427, 
2  So,  69,  4  Am.  St.  265;  Lake  Erie 
&c.  R.  Co.  V.  Griffin.  107  Ind.  464. 
8  N.  E.  451;  Brinkerhoflf  v.  Newark 
&c.  Traction  Co.,  66  N.  J.  L.  478, 
49  Atl.  812;  ante.  §  595. 

3  Worcester  v.  Norwich  &c.  R. 
Co..  109  Mass.  103;  Lewis  v.  Ger- 
mantown  &c.  R.  Co.,  16  Phila. 
(Pa.)  608;  Western  Union  Tel.  Co. 
V.  Pennsylvania  R.  Co.,  195  U.  S. 
594.  25  Sup.  Ct.  150,  49  L.  ed.  332. 
As   a   manufacturing   company    can 


707 


AI'PKOI'KIATION    UNDER    TH?:    EMINENT    DOMAIN 


§  1202 


exercise  the   rii;lu   without   express  authority.'*     And,  where   its 
road  can  not  l)e  successfully  operated  without  the  acquisition  of 


not,  by  lease  from  a  railroad  com- 
pany, acquire  the  right  of  eminent 
domain,  a  municipal  council  can 
not  authorize  it  to  build  a  railroad 
track  on  a  street,  such  track  being 
shown  to  be  a  nuisance.  Appeal 
of  Hartman  Steel  Co.,  129  Pa.  151. 
18  Atl.   553. 

*  See  Lawrence  v.  Morgan's  La. 
&c.  R.  Co.,  39  La.  Ann.  427,  2  So. 
69,  4  Am.  St.  265,  as  to  the  effect 
of  a  transfer  of  its  franchises  by 
a  corporation  under  legislative  au- 
thority. In  Abbott  V.  New  York 
&c.  R.  Co.,  145  Mass.  450,  IS  N.  E. 
91,  Holmes,  J.,  speaking  for  the 
court,  said:  "It  seems  to  us  clear 
that  a  corporation,  by  consent  of 
the  legislature,  may  take  this 
power  as  quasi  successor  of  an- 
other corporation  to  which  it  was 
originally  granted,  and  it  is  not 
very  material  whether  the  legisla- 
tive consent  be  regarded  as  au- 
thorizing a  transfer  of  the  old 
power,  or  more  strictly  as  dele- 
gating a  new  power  in  the  same 
terms  as  the  old.  See  State  v. 
Sherman,  22  Ohio  St.  411,  428.  The 
substance  of  the  transaction  is 
seen  in  the  cases  of  Boston  &c. 
Railroad  Co.  v.  Midland  R.  Co.,  1 
Gray  (Mass.)  340.  But  there  is 
reason  to  confine  it  to  such  cases. 
See  Atkinson  v.  Railroad  Co..  15 
Ohio  St.  21 ;  Coe  v.  Columbus  &c. 
R.  Co.,  10  Ohio  St.  372.  387,  75  Am. 
Dec.  518  and  note:  Hall  v.  Sullivan 
Railroad  Co.,  21  Law  Rep.  138,  141. 
When  the  power  is  claimed  under 
the  form  of  a  transfer,  rather  than 
of  an  original  grant,  the  legislative 


consent  or  grant  may  be  inferred 
somewhat  more  readily  than  when 
the  whole  question  is  new,  because 
the  legislature  has  already  adjudi- 
cated the  use  to  be  public,  and  has 
granted  a  co-extensive  power.  See 
Black  V.  Delaware  &c.  Canal  Co., 
22  N,  J.  Eq.  130,  402.  For,  while  it 
is  very  plain  that  the  power  could 
not  be  transferred  to  or  exercised 
by  a  purchaser  from  the  original 
donee,  without  such  consent  or 
grant  in  this  commonwealth  (Bras- 
lin  V.  Somerville  &c.  R.  Co.,  145 
?^Iass.  64,  13  N.  E.  65;  Common- 
wealth V.  Smith,  10  Allen  448.  87 
Am.  Dec.  672),  the  reasons  which 
have  led  some  courts  and  judges  to 
doubt  the  need  of  such  consent  for 
the  transfer  of  franchises  show  that 
the  delectus  personarum  is  of  little 
more  than  theoretical  importance, 
and  is  the  least  determining  ele- 
ment in  the  more  common  cases 
where  the  power  is  conferred. 
Shepley  v.  Atlantic  &c.  Railroad 
Co.,  55  Maine  395,  407:  Kennebec 
&c.  R.  Co.  v.  Portland  &c.  R.  Co.. 
59  Maine  9,  23:  Miller  v.  Rutland 
6tc.  R.  Co.,  36  Vt.  452,  492:  Bick- 
ford  V.  Grand  Junction  R.  Co.,  1 
Can.  Sup.  Ct.  696,  738.  And  this 
reasoning  is  of  equal  force,  whether 
the  power  to  take  land  by  eminent 
domain  is  called  a  franchise  or 
not.  Coe  V.  Railroad  Co.,  10  Ohio 
St.  372.  75  Am.  Dec.  518,  and  note: 
Chicago  &c.  R.  Co.  v.  Dunbar,  95 
111.  571:  Pierce  v.  Emery,  32  N.  H. 
484.  507.  511.  513.  Finally,  the 
legislative  consent  may  be  ex- 
pressed   by   way   of   ratification    of 


§1202 


RAILROADS 


708 


the  proi)t'rty  sought  to  be  condemned,  a  company  which  has 
leased  all  its  property  and  franchises'^  may  exercise  the  right  of 
eminent  domain,  even  though  the  lease  is  for  the  entire  life  of  the 
corporation  and  the  property  is  taken  solely  for  the  use  of  the 
lessee.''  It  has  been  held  that  a  railroad  company,  leasing  the 
property  and  franchises  of  another,  the  corporate  identity  of  the 
lessor  being  maintained,  may  exercise  the  power  of  the  lessor  to 
widen  its  roadbed,  though  the  exercise  of  the  power  is  practically 
for  the  benefit  of  the  lessee.'  As  the  corporate  existence  is  not 
terminated  by  the  appointment  of  a  receiver,  it  would  seem  that 
the  right  to  condemn  remains  in  the  corporation,*  and  does  not, 
ordinarily,  pass  to  the  receiver.  But  it  has  been  held  that  a  re- 
ceiver may  condemn  land  for  the  purpose  of  completing  an  un- 


what  purports  to  be  a  transfer  al- 
ready executed.     Shaw  v.  Norfolk 
&c.    R.    Co.,    5    Gray    (Mass.)    162, 
180,  16  Gray  (Mass.)  407,  410;  Gal- 
veston R.  Co.  V.  Cowdrey,  11  Wall. 
(U.  S.)  459,  20  L.  ed.  199.     And  it 
may    be    gathered    by    implication 
from  a  series  of  acts.     East  Boston 
&c.    R.    Co.   V.    Eastern    R.    Co..    13 
Allen  (Mass.)  422."     But  it  is  held 
that  a  railroad  company  which  has 
leased   its  property  and  franchises 
for  the  entire  term  of  its  corporate 
existence    may    condemn    land    to 
serve   the  necessities  of  its  lessee. 
New  York  &c.  R.   Co.,  Matter  of, 
35    Hun    220.    affirmed,    99    N.    Y. 
12,    1    N.    E.  27.     See   Deitrichs   v. 
Lincoln  &c.  R.   Co..  13  Nebr.  361; 
Kip  v.  New  York  &c.  R.  Co.,  67  N. 
Y.  227;  Chicago  &c.  R.  Co.  v.  111. 
Cent.   R.   Co.,   113   111.    156.     And  a 
domestic  corporation,  organized  at 
the  instance  of  a  foreign  company, 
which  is  forbidden  to  exercise  the 
power    of    eminent    domain,    may 
condemn  land  for  the   purpose   of 
leasing  it  to  such   foreign   corpora- 


tion.    Lower  v.  Chicago  &c.  R.  Co., 
59  Iowa  563. 

5  New  York  &c.  R.  Co.,  Matter 
of,  99  N.  Y.  12,  1  N.  E.  27,  35  Hun 
220:  Kip  v.  New  York  &c.  R.  Co., 
67  N.  Y.  227;  Metropolitan  Ele- 
vated R.  Co.,  Re,  18  N.  Y.  S.  134,  2 
N.  Y.  S.  278;  Chicago  &c.  R.  Co. 
V.  III.  Cent.  R.  Co.,  113  111.  156; 
Deitrichs  v.  Lincoln  &c.  R.  Co., 
13  Nebr.  361,  13  N.  W.  624.  See 
also  New  York  &c.  R.  Co.,  In  re, 
63  Hun  629.  17  N.  Y.  S.  778;  Mem- 
phis &c.  R.  Co.  v.  Railroad  Comrs., 
112  U.  S.  609.  5  Sup.  Ct.  299,  28 
L.  ed.  837;  State  ex  rel.  v.  King 
County  Super.  Ct.,  31  Wash.  445. 
72  Pac.  89,  66  L.  R.  A.  897. 

6  New  York  &c.  R.  Co.,  Tvlatter 
of,  99  N.  Y.  12,  1  N.  E.  27,  35  Hun 
220. 

7  Glaser  v.  Glenwood  R.  Co.,  208 
Pa.  328.  57  Atl.  713. 

8  Detroit  &c.  R.  Co.  v.  Camp- 
I)ell.  140  Mich.  384,  103  N.  W.  856. 
858,  860  (citing  text).  See  also 
?kIorrison  v.  Forman,  177  111.  427, 
53  N.  E.  17,. 


701)  Al'l'KOI'HIATION     rXDF.K    TIIK    EMINENT    DOMAIN  §  120:3 

(Icrtakiui^-  already  bej^'un."  and.  if  this  be  true,  it  woulfl  seem  that 
he  might  cundeinn  land  when  necessary  to  the  maintenance  and 
operation  of  a  road  already  ccnnpleted.  He  should,  however,  first 
obtain  authority  to  do  so  from  the  court  in  which  the  receivership 
is  pending.^'' 

§  1203  (959).  Right  to  condemn  can  not  be  delegated  to  con- 
tractor or  construction  company. — A  corporation  which  is  em- 
powered U)  take  materials  for  the  construction  of  works  oi  a 
public  nature  can  not  delegate  this  power  to  a  contractor  wIkj 
engages  to  furnish  his  own  materials. ^^  It  may,  however,  ap- 
propriate materials  by  condemnation  for  the  benefit  of  a  con- 
ti-actor  Avho  is  building  its  works  under  such  a  contract. ^^  A  con- 
struction company  can  not  take  land  for  railway  purposes,  and 
if  the  railroad  company  adopts  its  acts  in  appropriating  land  it 
must  pay  just  compensation.^^  But  if  the  railroad  company  does 
not  authorize  or  ratify  the  act  of  a  contractor  in  taking  land  his 
action  is  not  binding  upon  the  company.^* 

§  1204  (960).  Purposes  for  which  a  railroad  company  may 
condemn — Generally. — A    railroad    company    which     is     charged 

9  Moran     v.     Lydecker,    27     Hun  12  Ten    Broeck   v.    Sherrill,   71    X. 

(N.  Y.)   582.     See   Lehigh   &c.   Co.  Y.    276.      And    where    the    statute 

V.  Cent.  R.  Co..  35  N.  J.  Eq.  379.  autlnirizcs    any    agent    (~>r    servant 

1**  Minneapolis  &c.  R.  Co.  v.  Min-  of   the   corporation    to    enter    upon 

neapolis  &c.   R.  Co.,  61    Minn.  502,  contiguous  lands  belonging  to  pri- 

63    N.   W.    1035.  vate    owners    and    take    therefrom 

11  Lyon  V.  Jerome,  26  Wend.  (N.  materials   for   use   in   the   construc- 
Y.)  485.  37  Am.  Dec.  271:   Schmidt  tion    of    its    road,    the    corporation 
V.   Densmorc,  42   Mo.  225.     Contra  may    authorize    the    contractors    to 
Lesher  v.   W'al^asli  Navigation   Co..  take    materials   whenever   they   can 
14  III.  85,  56  Am.  Dec.  494  and  note.  not    be    readily    obtained    by    pur- 
See    also    William    Cramp    &    Sons  chase.     Vermont  General  R.  Co.  v. 
Ship  Rldg.  &c.  Co.  V.  International  Baxter,  22  Vt.  365:    Bliss  v.    Hos- 
&c.  Turbine   Co.,   246  U.  S.  28.  38  mer.   15  Ohio  44. 
Sup.  Ct.  271.  62  L.  ed.  560.     It  has  ^^  Bloomfield  R.  Co.  v.  Grace,  112 
been    held    that    the    railroad    com-  Tnd.   128,   13   N.   E.  680. 
pany  may  authorize  the  contractor  1*  Waltemeyer   v.   Wisconsin    &c. 
to   condemn  property  in  its  name.  R.  Co.,  71   Iowa  626,  33  X.  W.  140. 
Buchanan   &c.  Bank  v.  Cedar  Rap- 
ids &c.  R.  Co.,  62  Iowa  494. 


§1204 


RAILROADS 


710 


with  the  performance  of  the  duties  of  a  common  carrier  is,  as  we 
have  seen,  so  far  a  public  enterprise  that  it  may  be  empowered  to 
condemn  the  lands  needed  for  the  construction  and  maintenance 
of  its  line.^^     But  experience  has  shown  that  corporations  are 


15  Enfield  Toll  Bridge  Co.  v. 
Hartford  &c.  R.  Co..  17  Conn.  40, 
42  Am.  Dec.  716  and  note;  Brown 
V.  Beatty,  34  .Miss.  227,  69  Am. 
Dec.  389;  Ash  v.  Cummings,  50 
N.  H.  591;  Beekman  v.  Saratoga 
R.  Co.,  3  Paige  (N.  Y.)  45,  22  Am. 
Dec.  679  and  note:  New  York  &c. 
R.  Co.  V.  Kip,  46  N.  Y.  546,  7  Am. 
Rep.  385;  Kramer  v.  Cleveland  &c. 
R.  Co.,  5  Ohio  St.  140.  See  also 
Bedford  Quarries  Co.  v.  Chicago 
&c.  R.  Co..  175  Ind.  303,  94  N.  E. 
326.  35  L.  R.  A.  (N.  S.)  641;  Flynn 
V.  New  York  &c.  R.  Co..  139  App. 
Div.  199.  123  N.  Y.  S.  759;  Chap- 
man V.  Trinity  Val.  &c.  R.  Co. 
(Tex.  Civ.  App.),  138  S.  W.  440. 
But  it  has  been  held  that  a  private 
railroad  for  the  carriage  of  coal 
or  ores  from  the  company's  mines 
can  not  be  built  or  operated  under 
the  power  of  eminent  domain.  Peo- 
ple V.  Pittsburgh  &c.  R.  Co.,  S3 
Cal.  694;  McCandless'  Appeal,  70 
Pa.  St.  210;  Edgewood  R.  Co.'s  Ap- 
peal. 79  Pa.  St.  257.  See  also  Sholl 
V.  German  Coal  Co.,  118  III.  427. 
10  N.  E.  199,  59  Am.  Rep.  379; 
Leigh  V.  Garysburg  Mfg.  Co.,  132 
N.  Car.  167,  43  S.  E.  632;  Breaitx 
V.  Bienvenu.  51  La.  Ann.  687,  25 
So.  321.  Under  a  charter  declaring 
that  a  corporation  may  operate  a 
railroad,  with  necessary  lines  of 
telegraph  and  with  power  to  con- 
struct branches,  the  fact  that  it  is 
given  authority  to  extend  its  road 
to  coal  lands  which  it  owns  has 
been    held    not    to    take    awav    its 


cliaracter  as  a  public  railroad  cor- 
poration, which  can  exercise  the 
power  of  eminent  domain.  Colo- 
rado tK:c.  K.  C  ).  V.  Union  Pac.  R. 
Co.,  7  R.  &  Corp.  L.  J.  373,  41  Fed. 
293.  Where  land  is  taken  for  its 
use  1)}'  a  railroad  corporation  hav- 
ing tiio  right  to  exercise  the  power 
of  eminent  domain,  the  question 
whether  the  use  is  public  or  private 
depends  upnu  the  ris^ht  of  the  pub- 
lic to  use  the  road  and  to  require 
the  corporation,  as  a  common  car- 
rier, to  transport  freight  or  pas- 
sengers over  the  same,  and  not 
upon  the  amount  of  business.  Ket- 
tle River  R.  Co.  v.  Eastern  R.  Co., 
41  Minn.  461,  43  N.  W.  469,  6  L.  R. 
A.  111.  If  all  the  people  have  a 
right  to  use  it  the  use  is  public, 
although  the  number  who  require 
the  use  may  be  small.  Chicago 
&c.  R.  Co.  V.  Porter,  43  Minn.  527, 
46  N.  W.  75,  43  Am.  &  Eng.  R. 
Cas.  170;  Zircle  v.  Southern  Ry. 
Co.,  102  Va.  17,  45  S.  E.  802,  102 
Am.  St.  805  and  note;  Butte  &c. 
R.  Co.  V.  Montana  &c.  R.  Co.,  16 
Mont.  504,  41  Pac.  232,  31  L.  R.  A. 
298,  50  Am.  St.  508.  It  was  held 
by  the  court  of  appeals  of  New 
York  that  a  railroad  in  the  gorge 
of  the  Niagara  River  from  the  falls 
to  the  whirlpool,  which  did  not 
connect  with  any  public  highway, 
which  could  only  be  reached  by 
passing  over  the  state  reservation 
or  private  lands;  which  could  have 
no  habitations  along  or  freight 
traffic    over    the    road:    whose    sole 


n 


Al'I'KOI'RIATION    I'NDEIl    TIIK   EMINENT    DOMAIN 


§  1205 


sometimes  formed  under  the  t^-eiieral  raihoad  laws  for  the  further- 
ance of  mere  private  enterprises.  Accordingly,  it  has  been  held 
that  the  corporation  which  claims  the  right  to  exercise  the 
power  of  eminent  domain  must  not  only  be  able  to  show  a  legis- 
lative warrant,  l)Ut  it  must  be  able,  further,  to  establish,  if  the 
right  is  challenged,  that  the  particular  scheme  in  which  it  is  en- 
gaged is  a  railroad  enterprise  within  the  true  meaning  of  the 
decisions  which  justify  the  taking  of  private  property  for  rail- 
road purposes;  and  that  the  taking  of  private  property  for  the 
purposes  to  which  the  corporation  proposes  to  devote  it  is  a 
t;d<ing  for  public  use.^^ 

§  1205.  Purposes  for  which  company  may  condemn — Illustra- 
tive cases. — The  cptestion  as  to  what  are  the  legitimate  uses 
which  a  railroad  may  make  of  property  in  its  public  character  has 


business  would  be  to  convey 
sight-seers  along  Niagara  River; 
and  the  season  of  whose  opera- 
tions is  confined  to  four  months 
of  the  year,  could  not  be  built 
under  the  general  railroad  law  of 
that  state:  and  that  such  a  road 
would  not  be  such  a  public  use  as 
could  justify  the  exercise  of  the 
power  of  eminent  domain  in  its 
behalf.  Niagara  Falls  &c.  R.  Co., 
In  re.  108  X.  Y.  375,  15  N.  E.  429. 
See  Denver  R.  &c.  Co.  v.  Union 
Pac.  R.  Co..  34  Fed.  386;  Split  Rock 
Cable  Co.,  Re.  128  N.  Y.  408,  28 
N.  E.  506;  Afemphis  Freight  Co. 
v.  Memphis,  44  Tenn.  (4  Coldw.) 
419.  See  the  following  authori- 
ties in  support  of  the  proposition 
that  a  railroad  is  such  a  public  use 
that  the  power  of  eminent  domain 
may  be  exercised  in  its  behalf. 
Bloodgood  V.  Mohawk  &c.  R.  Co., 
14  Wend.  (N.  Y.^  52.  18  Wend. 
(N.  Y.)  9.  31  Am.  Dec.  313  and 
note;  Bonaparte  v.  Camden  &c.  R. 
Co.,  1  Baldw.  (U.  S.^  205;  .Mdridge 


V.  Tuscumbia  &c.  R.  Co.,  2  S.  & 
P.  (.\la.)  199,  23  Am.  Dec.  307; 
Contra  Costa  R.  Co.  v.  Moss,  23 
Cal.  323;  San  Francisco  &c.  R.  Co. 
v.  Caldwell,  31  Cal.  367;  Bradley 
V.  New  York  &c.  R.  Co.,  21  Conn. 
294;  Whiteman  v.  Wilmington  &c. 
R.  Co.,  2  Harr.  (Del.)  514.  33  Am. 
Dec.  411;  O'Hara  v.  Lexington  &c. 
R.  Co.,  1  Dana  (Ky.)  232;  Arnold 
v.  Covington  &c.  Bridge  Co.,  1 
Duv.  (Ky.)  372;  Weir  v.  St.  Paul 
&c.  R.  Co.,  18  Minn.  155;  Newby 
V.  Platte  County,  25  Mo.  258;  Con- 
cord R.  Co.  V.  Greely,  17  N.  H.  47; 
Buffalo  &c.  R.  Co.  v.  Brainard,  9 
N.  Y.  100;  Raleigh  &c.  Co.  v.  Davis, 
2  D.  &  B.  L.  (N.  Car.)  451;  Louis- 
ville &c.  R.  Co.  v.  Chappell,  Rice 
L.  (S.  Car.)  383;  Buffalo  Bayou 
&c.  R.  Co.  v.  Ferris.  26  Tex.  588. 
^^  Niagara  Falls  &c.  R.  Co.,  In 
re,  108  N.  Y.  375,  15  N.  E.  429: 
Denver  R.  &c.  Co.  v.  Union  Pacific 
R.  Co.,  34  Fed.  386;  Rochester  &c. 
R.  Co.,  In  re.  59  Hun  617,  12  N.  Y. 
S.  566. 


S  1 205 


KAILKOADS 


712 


given  rise  to  much  litii::;ili(>n.  It  is  held  that  a  raih-oad  conipany 
lna^'  condemn  land  lor  a  right  of  way.  not  only  for  its  main  road. 
but  for  any  branch  or  lateral  roads  which  its  charter  authorizes,^^ 
that  it  may  take  lands  for  depots, ^^  freight  houses,^"  turnouts  and 


1-  Newhall  v.  Galena  &c.  R.  Co.. 
14  111.  273:  Chicago  &c.  R.  Co.  v. 
Morehouse,  112  Wis.  1.  87  X.  W. 
849,  56  L.  R.  A.  240,  88  Am.  St. 
918  (reviewing  authorities);  Ulmer 
V.  Lime  Rock  R.  Co.,  -  98  Maine 
579,  57  Atl.  1001,  66  L.  R.  A.  387; 
Zircle  v.  Southern  Ry.  Co.  102  Va. 
17,  45  S.  E.  802,  102  Am.  St.  805 
and  note.  See  also  Dul)uquc  &c. 
R.  Co.  V.  Ft.  Dodge  &c.  R.  Co.. 
146  Iowa  666,  125  N.  W.  672;  Dod- 
son  V.  Atchison  &c.  R.  Co.,  81 
Kans.  816,  106  Tac.  1045;  Chicago 
&c.  R.  Co.,  In  re,  152  Wis.  633, 
140  N.  W.  346;  post,  §  1206.  Where 
the  construction  of  terminal  bran- 
ches and  spur  tracks  of  a  railroad 
to  points  upon  a  river  front,  for  the 
accommodation  of  business  and 
shipping  interests,  is  essential  to 
any  successful  operation  of  a  rail- 
road, they  must  be  held  to  be  for 
public  use  as  much  as  the  main 
line.  Toledo  &c.  R.  Co.  v.  East 
Saginaw  &c.  R.  Co,,  72  Mich.  206, 
40  N.  W.   436. 

5s  Hannibal  &c.  R.  Co.  v.  Muder, 
49  Mo.  165;  Giesy  v.  Cincinnati  &c. 
R.  Co.,  4  Ohio  St.  308:  Small  v. 
Georgia  &c.  R.  Co.,  87  Ga.  602,  13 
S.  E.  694.     The  power  of  a  railroad 


company  to  take  lands  for  a  rail- 
road implies  the  power  to  take 
them  for  depot  buildings.  State  v. 
Railroad  Comrs.,  56  Conn.  308.  15 
All.  756.  See  also  Carmody  v.  Chi- 
cago &c.  R.  Co.,  Ill  111.  69,  note  in 
9  L.  R.  A.  295:  Chicago  &c.  R.  Co. 
v.  Chicago  Mechanics  Inst.,  239  111. 
197,  87  N.  E.  933;  Jager  y.  Dey.  80 
Iowa  23,  45  N.  W.  391.  42  Am.  & 
Eng.  R.  Cas.  683.  The  mere  fact 
that  other  property  would  derive 
benefit  from  the  condemnation  of 
property  for  a  freight  depot  does 
not  alter  the  character  of  the  pub- 
lic use,  neither  is  it  material  as  af- 
fecting such  use  that  part  of  the 
compensation  is  to  be  paid  by  a 
municipality.  Cloth  v.  Chicago  &c. 
R.  Co.,  97  Ark.  86,  132  S.  W.  1005, 
Ann.  Cas.  1912C,  115. 

19  New  York  Central  R.  Co., 
Matter  of,  77  N.  Y.  248:  New  York 
&c.  R.  Co.,  Matter  of  v.  Kip.  46 
N.  Y.  546,  7  Am.  Rep.  385;  New 
York  &c.  R.  Co.,  In  re.  77  N.  Y. 
248.  But  see  Cumberland  Valley 
R.  Co.  V.  McEanahan.  59  Pa.  St. 
23.  See  New  York  Central  &c. 
R.  Co.  V.  Metropolitan  Gas  Light 
Co.,  5   Hun   (N.  Y.)   201. 


'13 


M'I'KOI'KI  V'l'IOX     IXDKR    TIIF:    EMINENT    DOMAIN 


5j  1205 


side-tracks.-"  yard  rooin,-i  shops  to  repair  cars  and  engines  used 


20  St.  Louis  &c.  R.  Co.  V.  Petty, 
57  Ark.  359.  20  L.  R.  A.  434  and 
note;  Protzman  v.  Indianapolis  &c. 
R.  Co.,  9  Ind.  467.  68  Am.  Dec.  650: 
Toledo  &c.  R.  Co.  v.  Daniels,  16 
Ohio  St.  390;  State  v.  Toledo  &c. 
Terminal  Co.,  24  Ohio  Cir.  Ct.  321; 
Philadelphia  &c.  R.  Co.  v.  Wil- 
liams, 54  Pa.  St.  103;  Cleveland 
&c.  R.  Co.  V.  Speer.  56  Pa.  St. 
325.  94  Am.  Dec.  84.  See  also 
State  V.  Chicago  &c.  R.  Co.,  115 
Minn.  51.  131  N.  VV.  859.  In  Getz's 
Appeal.  3  Am.  &  Eng.  R.  Cas.  186, 
10  W.  N.  Cas.  (Pa.)  453,  the  court 
held  that  the  right  to  condemn 
land  for  the  construction  of  sidings 
to  private  warehouses  and  manu- 
facturing establishments  is  clearly 
within  the  constitutional  power  of 
the  legislature  to  confer  upon  rail- 
road companies,  because  the  public 
interest  is  thereby  subserved  by 
reason  of  the  increased  facilities 
afforded  for  developing  the  re- 
sources of  the  state  and  promoting 
the  general  wealth  and  prosperity 
of  the  community.  And  in  South 
Chicago  R.  Co.  v.  Dix.  109  III.  237. 
the  court  held  that:  "A  side  track 
can  surely  be  none  the  less  such, 
because,  in  addition  to  the  pur- 
poses of  a  side  track  proper,  it 
subserves  some  other  private  indi- 
vidual use."  Rut  the  court  admit- 
ted that  the  railroad  company 
could  not  take  land  for  the  con- 
struction of  an  independent  branch 
road  to  subserve  only  private  in- 
terests. And  in  a  later  case  before 
the  same  court,  where  the  question 
whether  a  private  branch  road 
C(Mild  be  constructed  by  a  railroad 
under  its  power  of  eminent  domain 


at  a  point  where  a  switch  was  not 
needed,  was  directly  presented  and 
the  court  held  that  it  could  not. 
The  court  said:  "The  fact  that  the 
building  of  collateral  branch  roads 
may  add  to  the  earnings  of  the 
main  line  and  increase  its  business 
will  not  authorize  appellant  to 
build  the  same  under  its  charter 
and  condemn  lands  therefor  .... 
Nor  is  it  material  to  the  determi- 
nation of  this  question  that  the  pro- 
posed track  is  only  a  half  or  three- 
cjuarters  of  a  mile  in  length,  or  that 
great  loss  would  occur  to  the  brick- 
works company,  if  it  be  not  built. 
Appellee's  land  is  sought  to  be 
taken,  and  it  can.  as  to  his  right, 
make  no  possible  difference  whether 
the  proposed  line  is  long  or  short. 
If  the  railroad  company  may  con- 
demn appellee's  land  for  the  pur- 
poses indicated,  why  may  it  not 
build  any  distance  it  may  choose 
for  like  purposes,  or  from  Dan- 
ville, its  eastern  terminus,  to  St. 
Louis,  if  thereby  its  revenues  would 
be  increased,  and  the  interests  of 
the  points  to  which  it  should  build 
be  promoted  thereby?  The  legis- 
lature has  conferred  no  such  power 
upon  appellant.  It  is  apparent 
from  the  proofs  that  the  purpose 
and  use  intended  was  not  such  a 
use  as  is  contemplated  by  the  grant 
of  power  under  which  appellant 
was  acting,  and  that,  therefore,  no 
appropriation  of  appellant's  land 
for  such  purpose  could  be  made." 
Chicago  &c.  R.  Co.  v.  Wiltse.  116 
111.  449.  6  X.  E.  49.  See  post,  §§ 
1206.  1221. 

-1  Rensselaer  &c.  R.  Co.  v.  Davis, 
43  N.  Y.  137:  Eldridge  v.  Smith.  34 


§1205 


RAILROADS 


714 


for  the  road,--  or  other  similar  conveniences  which  require  a 
particular  location  with  reference  to  the  company's  road.-'  And 
it  has  been  held  that  a  railway  company  may  take  lands  under 
the  general  law  for  the  purpose  of  laying  tracks  from  its  main 
line  to  stock-yards  which  it  has  established  for  convenience  in 
handling  live  stock  transported  over  its  road,-*  and  the  fact  that 


Vt.  484  and  Stockyards,  Chicago 
&c.  R.  Co.  V.  Baugh,  175  Ind.  419, 
94  N.  E.  571. 

22  Southern  Pac.  R.  Co.  v.  Ray- 
mond, 53  Cal.  223;  Chicago  &c.  R. 
Co.  V.  Wilson,  17  111.  123;  Low  v. 
Galena  &c.  R.  Co.,  18  111.  324;  Han- 
nibal &c.  R.  Co.  V.  Muder,  49  Mo. 
165;  State  v.  District  Court  (Mont.), 
88  Pac.  44;  Virginia  &c.  R.  Co.  v. 
Elliott,  5  Nev.  358;  State  v.  Comrs. 
of  Mansfield,  23  N.  J.  L.  510,  57 
Am.  Dec.  409  and  note. 

23  Protzman  v.  Indianapolis  &c. 
R.  Co.,  9  Ind.  467,  68  Am.  Dec.  650; 
Graham  v.  Connersville  &c.  R.  Co., 
36  Ind.  463,  10  Am.  Rep.  56;  Dillon 
V.  Kansas  City  &c.  R.  Co.,  67  Kans. 
687,  74  Pac.  251  (water  station); 
Reed  v.  Louisville  Bridge  Co.,  8 
Bush  (Ky.)  69;  Lawrence  v.  Mor- 
gan &c.  Co.,  39  La.  Ann.  427,  2  So. 
69,  4  Am.  St.  265;  Mansfield  &c.  R. 
Co.  v.  Clark,  23  Mich.  519;  Ewing 
v.  Alabama  &c.  R.  Co.,  68  Miss. 
551.  9  So.  295;  Long  Island  R.  Co., 
In  re,  143  N.  Y.  67,  37  N.  E.  636; 
South  Carolina  R.  Co.  v.  Blake.  9 
Rich.  (S.  Car.)  228;  Nashville  &c. 
R.  Co.  V.  Cowardin,  11  Humph. 
(Tenn.)  348;  Sadd  v.  Maldon  &c. 
R.  Co..  6  Exch.  143.  For  water 
tanks,  Wilson  v.  Pittsburgh  &c.  R. 
Co.,  222  Pa.  St.  541,  72  Atl.  235. 
Railroads  have  been  permitted  to 
condemn  land  for  parallel  tracks 
along    the    whole    line    of    a    road. 


New  York  Central  R.  Co.,  In  re, 
67  Barb.  (N.  Y.)  426.  For  a  tele- 
graph line  along  the  right  of  way. 
Prathcr  v.  Jeffersonville  &c.  R. 
Co.,  52  Ind.  16.  And  for  stockyards 
at  a  station  upon  the  line.  New 
York  Cent.  R.  Co.,  In  re,  63  N.  Y. 
326.  To  deny  a  petition  of  a  rail- 
way company  for  the  condemna- 
tion of  land  for  a  side-track  or  sim- 
ilar appurtenance,  it  should  appear 
that  the  property  sought  to  be 
taken  is  not  required  for  the  con- 
venient operation  of  the  road. 
New  York  Central  R.  Co.,  In  re, 
77  N.  Y.  248;  Boston  &c.  R.  Co., 
Matter  of,  53  N.  Y.  574;  South  Chi- 
cago &c.  R.  Co.  V.  Dix.  109  111.  237; 
Smith  V.  Chicago  &c.  R.  Co.,  105 
111.  511;  Cleveland  &c.  R.  Co.  v. 
Speer,  56  Pa.  St.  325,  94  Am.  Dec. 
84.  Where  a  railroad  was  prohib- 
ited from  holding  land  except  for 
the  "construction  of  the  road  or 
for  depots,  toll-houses,  and  other 
necessary  works,"  it  was  held  that 
the  railroad  had  no  implied  author- 
ity to  take  and  hold  land  for  a 
warehouse.  Cumberland  Valley  R. 
Co.  V.  McLanahan,  59  Pa.  St.  23. 
2*  New  York  &c.  R.  Co.  v.  Met- 
ropolitan Gas  Light  Co..  5  Hun  (N. 
Y.)  201,  6  Hun  (N.  Y.)  149,  af- 
firmed 63  N.  Y.  326.  See  also  Cov- 
ington Stock  Yards  Co.  v.  Keith, 
139  U.  S.  128,  11  Sup.  Ct.  461,  35  L. 
ed.    73.      The    first    time    this    case 


715 


APPROPKIATIOX    LNDER    THE    EMINENT    DOMAIN 


§  1205 


such  tracks  will  also  pass  by  private  business  establishments  is 
no  objection  to  the  exercise  of  the  power.-^  After  the  railroad 
company  has  taken  property  it  may  devote  it  to  any  of  these  or 
similar  uses  without  incurring  a  forfeiture  or  becoming  liable  to 
a  new  assessment  of  damages.-''  A  railroad  company  may  also 
condemn  land  over  which  to  divert  the  course  of  a  stream  where 
iv  is  found  necessary  in  the  construction  of  the  road.-'     It  niav 


was  before  the  court,  Davis,  P.  J., 
speaking  for  the  court,  said:  "It 
hardly  needs  an  argument  to  es- 
tablish that  in  a  city  like  New  York 
depots  for  freight  and  for  the  vast 
number  of  cattle  and  other  live 
stock  that  are  constantly  being 
transported  to  the  city,  are  as  much 
within  the  purposes  for  which  rail- 
roads are  constructed,  and  as  neces- 
sary to  their  operation  as  de- 
pots for  the  accommodation  of 
passenger  traffic.  The  argument, 
indeed,  is  more  strongly  in  favor  of 
the  former,  for  while  a  railroad 
company  might,  with  safety  to  it- 
self, leave  its  passengers  upon  a 
public  street  to  take  care  of  them- 
selves upon  their  individual  respon- 
sibility, it  could  not  do  so  with  re- 
spect to  the  animals  it  transported, 
but  must  securely  keep  them  from 
injuring  and  annoying  the  public, 
until  proper  delivery  to  owners  or 
consignees.  .  .  .  A  railroad  corpor- 
ation can  not  take  land  under  the 
right  of  eminent  domain  for  the 
purpose  of  founding  a  town  or  city 
on  the  plea  that  when  founded  it 
will  furnish  business  to  the  road  of 
the  company.  But  it  is  quite  an- 
other question  if  the  company  be 
the  lawful  owner  of  lands  on  which 
it  has  founded  and  erected  a  city, 
whether  it  may  not  lawfullj-  ac- 
quire,   under   eminent   domain,   the 


lands  necessary  to  connect  its 
tracks,  being  within  its  lawful 
route,  within  that  city.  A  fortiori 
would  the  same  reasoning  apply 
where  the  track  to  be  laid  was  pri- 
marily to  erections  within  the  rule 
of  necessity  and  only  incidentallj'- 
to  the  those  which  fall  within  the 
class  of  business  conveniences.  We 
are  therefore  of  opinion  that  the 
appellants  are  not  protected  by  the 
rule  that  lands  can  not  be  taken 
'for  subsidiary  and  extraordinary 
purposes,'  but  that  this  case  is 
clearly  covered  by  the  ruling  of  the 
court  of  appeals  in  the  matter  of 
the  petition  of  the  New  York  & 
Harlem  R.  Co.  v.  Kip,  46  X.  Y. 
546,  7  Am.  Rep.  385." 

25  New  York  Central  R.  Co.  v. 
Metropolitan  Gas  Light  Co.,  5  Hun 
(N.  Y.)  201.  See  also  Hairston  v. 
Danville  &c.  R.  Co.,  208  U.  S.  598, 
28  Sup.  Ct.  331,  35  L.  ed.  73,  13 
Ann.  Cas.  1008;  Southern  Pac.  Co. 
V.  Los  Angeles  Milling  Co.,  177 
Cal.  395.  170  Pac.  829;  Menosha 
Woodenware  Co.  v.  Railroad  Co.. 
167  Wis.  19,  166  N.  W.  435. 

=«  Curtis  &  St.  Paul  &c.  R.  Co.. 
20  Minn.  28.  See  "Right  of  Way 
of  Rail  Road  Company,"  42  Cent. 
L.  J.  156. 

-'  Baltimore  &c.  R.  Co.  v.  Magru- 
der.  34  Md.  79,  6  Am.  Rep.  310; 
Valley  R.  Co.  v.  Bohm,  34  Ohio  St. 


§  3 -'05 


KAILKOADS 


716 


take  sprin^e^s  near  its  road  for  a  supply  of  water  for  its  eiii^ines 
upon  making  compensation  therefor  when  it  can  not  he  other- 
wise obtained.'-*^     And  it  has  been  held  that  it  mav  condemn  land 


114;  Jdhnson  v.  Atlantic  &c.  R. 
Co.,  35  N.  H.  569,  69  Am.  Dec.  560; 
Pugh  V.  Golden  Valley  R.  Co.,  L. 
R.  12  Ch.  Div.  274.  .\n  act  grant- 
ing to  railroad  corporations  the 
right  to  condemn  property  for  the 
purpose  of  diverting  a  stream  of 
water  too  frequently  crossed  by  its 
road,  or  in  an}-  case  where  the 
safety  and  convenience  <>f  tlie  op- 
eration of  the  road  will  be  pro- 
moted, was  upheld  by  the  supreme 
court  of  Iowa,  in  so  far  as  it  au- 
thorized the  condemnation  of  land 
to  make  changes,  which  would 
l)romote  the  safety  of  the  travel- 
ing public,  tlie  court  holding  that 
taking  property  for  such  an  object 
was  taking  it  for  public  use.  But 
the  court  refused  to  decide  whether 
the  legislature  could  constitution- 
ally authorize  the  taking  of  land 
for  sucii  a  purpose,  merely  to  pro- 
mote the  convenience  and  economy 
of  the  company.  Reusch  v.  Chica- 
go &c.  R.  Co.,  57  Iowa  687,  11  N. 
W.  647.  See  also  State  v.  District 
Court,  34  Mont.  535,  88  Pac.  44. 
It  is  only  in  case  of  necessity  that 
such  power  exists.  ]\Iere  conven- 
ience of  saving  of  expense  to  the 
company  will  not  justify  it.  Pugh 
V.  Golden  Valley  R.  Co..  L.  R.  12 
Chi.  Div.  274;  Scranton  Gas  &c. 
Co.  V.  Northern  Coal  &c.  Co.,  192 
Pa.  St.  80,  43  Atl.  470,  IZ  Am.  St. 
798.  See  Stodghill  v.  Chicago  &c. 
R.  Co.,  43  Iowa  26.  22  Am.  Rep. 
211.  Under  a  power  to  condemn 
lands  it  was  held  that  the  right 
to    the    flow   of   the    stream    could 


not  be  taken  without  taking  the 
bed  of  the  stream.  Watson  v.  Ac- 
([uackanonck  Water  Co.,  36  N.  J. 
L.  195,  and  see  Garwood  v.  New 
York  Cent.  R.  Co.,  83  N.  Y.  400, 
38  .\\w.  Rep.  452.  A  railroad  char- 
ter authorizing  it  to  enter  upon 
lands  necessary  for  the  construc- 
tion and  maintenance  of  its  road 
gives  it  power  to  take  land  for 
railroad  purposes  only,  and  not  for 
tlie  purpose  of  widening  or  altering 
streets,  and  an  attempt  upon  the 
part  of  a  railroad  company  to  take 
the  land  of  a  citizen  for  the  latter 
purpose  is  a  nullity.  Chicago  &c. 
R.  Co.  V.  Gait.  133  111.  657.  24  N. 
E.  674. 

-s  Strohecker  v.  Alabama  &c.  R. 
Co.,  42  Ga.  509.  But  see  Connells- 
ville  &c.  R.  Co.  V.  Markleton  Hotel 
Co..  247  Pa.  St.  565,  93  Atl.  635, 
Ann.  Cas.  1916E.  1213.  Where  a 
spring  is  destroyed,  the  owner  can 
recover  compensation  therefor. 
Lehigh  Valley  R.  Co.  v.  Trone,  28 
Pa.  St.  206;  Winklemans  v.  Des 
Moines  &c.  R.  Co.,  62  Iowa  11,  17 
N.  W.  82;  Peoria  &c.  R.  Co.  v. 
Bryant,  57  Til.  473;  Parker  v.  Bos- 
ton &^c.  R.  Co.,  3  Cush.  (Mass.) 
107,  50  Am.  Dec.  709  and  note. 
But  damages  caused  by  draining  a 
spring  in  making  excavations  to 
build  the  road  will  be  presumed  to 
have  been  included  in  the  sum 
awarded  by  the  commissioners  on 
condemnation,  or  agreed  upon  by 
the  landowner  and  the  company  in 
case  the  right  of  way  was  pur- 
chased.    Hougan  v.  Milwaukee  &c. 


717 


AI'i'KOl'KIATlOX'    I'NDKR    THE    EMINENT    DOMAIN 


^^  1205 


for  a  track  to  a  pul^lic  landing,-"  or  to  a  pul)lic  warehouse  or 
elevator.'"  So,  it  has  been  held,  under  a  statute  g^rantinti^  the 
power  to  electric  lines  and  imposing  no  limitations  as  to  the  loca- 
tion of  its  appurtenances,  that  an  electric  railroad  may  condemn 
land  for  power  purposes  however  distant  from  the  line.'^  But  it 
has  been  held,  on  the  other  hand,  that  a  railroad  company  can 
not  ccjudenin  lands  for  uses  not  connected  with  the  conduct  of 
its  business  of  a  common  carrier,  such  as  the  erection  of  dwellings 
for  its  employes,'-  or  the  erection  of  a  manufacturing  establish- 
ment to  supply  the  road  with  rolling  stock  and  other  necessary 
equipment, ■'■'  or  for  the  establishment  of  a  pleasure  park  at  its 


R.  Co.,  35  Iowa  558,  14  .\m.  Rep. 
502;  Aldrich  v.  Cheshire  R.  Co., 
21  N.  H.  359,  53  Am.  Dec.  212. 

-9  Toledo  &c.  R.  Co.  v.  East  Sag- 
inaw &c.  R.  Co.,  72  Mich.  206,  40 
N.  W.  436;  Rensselaer  &c.  R.  Co. 
V.  Davis,  43  N.  Y.  137.  See  also 
Collier  v.  Union  Ry.  Co.,  113  Tenn. 
96,  83  S.  W.  155;  Taussig  v.  St. 
Louis  Transfer  R.  Co.,  133  Fed. 
220.  Under  the  Illinois  water- 
craft  act  of  July  1,  1887,  a  railroad 
company  can  not  condemn  land 
for  a  landing  for  water-craft. 
Thomas  v.  St.  Louis  &c.  R.  Co., 
2,7  Fed.  839. 

•■"'  Fisher  v.  Chicago  &c.  R.  Co.. 
104  111.  323;  Chicago  &c.  R.  Co.  v. 
Garrity,  115  111.  155,  3  N.  E.  448. 
See  also  Illinois  Cent.  R.  Co.  v. 
East  Sioux  Falls  Quarry  Co.,  ?i'i 
S.  Dak.  63,  144  N.  W.  724.  A  rail- 
road may  take  land  on  which  to 
pile  lumber  to  be  used  on  the  road 
and  brought  to  it  to  be  transported 
theron.  Eldridge  v.  Smith,  34  Vt. 
484. 

^'^  State  V.  Centralia  -  Chehalis 
Electric  <!l'c.  Co.,  42  Wash.  632,  85 
Pac.  344. 

32  Rensselaer  &c.  R.  Co.  v.  Davis, 


43  X.  \  .  137;  State  v.  Commission- 
ers of  .Mansfield,  23  N.  J..  L.  510, 
57  Am.  Dec.  409  and  note  (criti- 
cised in  State  v.  Hancock,  35  N.  J. 
L.  537);  Eldridge  v.  Smith,  34  Vt. 
484:  Nashville  &c.  R.  Co.  v.  Cowar- 
din,  11  Humph.  (Tenn.)  347. 

33  New  York  &c.  R.  Co.,  Matter 
of,  v.  Kip,  46  N.  Y.  546,  7  Am.  Rep. 
385;  West  River  Bridge  Co.  v.  Dix, 
6  How.  (U.  S.)  507,  546,  12  L.  ed. 
535.  In  Eldridge  v.  Smith,  34  Vt. 
484.  493,  the  court  says:  "Is  an  es- 
tablishment for  the  manufacture  of 
railroad  cars  a  legitimate  purpose, 
so  that  the  company  would  have 
a  right  to  take  land  for  it  against 
tiie  will  of  the  owner?  The  defend- 
ants say,  that  as  the  company  must 
necessarily  have  cars  in  order  to 
carry  on  their  business,  therefore 
they  must  have  the  right  to  manu- 
facture them,  and  have  works  for 
that  purpose.  But  this  argument 
proves  too  much.  Railroads  must 
have  iron  in  great  quantities,  for 
their  track  and  other  purposes. 
Does  this  authorize  them  to  take 
ore  beds  and  lands  for  forges  and 
foundries,  and  manufacture  their 
own  iron?     They  must  have  wood, 


§1205 


RAILROADS 


718 


terminal.^*  Where  expressly  authorized,  a  railroad  company  may 
condemn  lands  lying  outside  the  location  to  procure  materials, 
if  the  purpose  for  which  they  are  taken  is  disclosed  in  the  peti- 
tion,-'^ but  under  a  general  authority  to  condemn  land  for  the 
purposes  of  the  road  it  has  been  held  that  no  such  power  can  be 


sleepers  and  timber  for  depots, 
and  large' quantities  of  lumber  of 
various  kinds.  Does  this  authorize 
them  to  take  timbered  lands,  and 
sites  for  mills,  against  the  will  of 
the  owners?  They  must  have 
glass,  nails,  paint,  and  manj'-  other 
things.  Can  they,  by  compulsory 
measures,  provide  themselves  the 
means  to  manufacture  them  all? 
We  think  it  clear  they  can  not.  If 
the  company  must  manufacture 
their  own  cars  or  go  without,  then, 
doubtless,  their  manufacture  would 
be  regarded  as  a  necessity  of  the 
railroad,  but  the  manufacture  of 
cars  and  engines  is  a  distinct 
branch  of  mechanical  industry,  car- 
ried on  wholly  independent  of  any 
connection  with  railroads,  and  is  a 
branch  of  business  in  which  rail- 
roads do  not  usually  engage  at  all; 
and  in  this  case  it  seems  to  have 
been  quickly  demonstrated,  that  it 
was  better  to  rely  on  supplying 
themselves  with  cars  by  purchase 
from  those  whose  legitimate  busi- 
ness it  was  to  make  them.  Al- 
though railroad  companies  must 
have  engines  and  cars,  iron,  lum- 
ber, wood  and  many  other  things 
in  large  quantities,  in  order  to  build 
and  operate  their  roads,  it  is  sup- 
posed they  can  supply  themselves 
as  private  persons  do,  by  purchase 
in  the  ordinary  way,  and  they  are 
not  created  or  designed  to  be  in- 
dependent of  all  other  branches  of 


industry  and  business  in  the  coun- 
try, but  to  be  additional  aids  to 
their  successful  development.  The 
company  must  have  shops  for  the 
repair  of  cars  and  enpines,  as  they 
are  so  often  needed,  and  as  they 
can  not  well  be  moved  for  repairs, 
nor  can  facilities  be  found  for  re- 
pairs in  the  country  generally,  but 
the  company  were  already  supplied 
with  all  necessary  accommodations 
for  repairs.  We  are  of  opinion  that 
an  establishment  for  the  manufac- 
ture of  cars  is  not  a  legitimate  rail- 
road necessity  so  that  the  company 
could  properly  condemn  land  on 
which  to  erect  one." 

^*  Great  Falls  Power  Co.  v.  Great 
Falls  &c.  R.  Co.,  104  Va.  416,  52 
S.  E.  172:  Niagara  Falls  &c.  R.  Co., 
In  re,  108  N.  Y.  375,  15  N.  E.  429. 

3-'  Hopkins  v.  Florida  &c.  R.  Co.. 
97  Ga.  107,  25  S.  E.  452;  Smith  v. 
Cleveland  &c.  R.  Co.,  170  Ind.  382, 
81  N.  E.  501;  Valley  R.  Co.  v. 
Bohm,  34  Ohio  St.  114;  Vermont 
Central  R.  Co.  v.  Baxter,  22  Vt. 
365.  The  general  railroad  laws  of 
twenty-seven  states  authorize  the 
taking  of  land  in  addition  to  the 
specified  width  of  the  railroad 
right  of  way  for  procuring  materi- 
als, such  as  stone,  gravel  and  tim- 
ber. See  also  Chicago  &c.  R.  Co. 
V.  Mason,  23  S.  Dak.  564,  122  N. 
W.  601;  State  v.  Superior  Ct.  68 
Wash.  572.  123  Pac.  996.  40  T..  R.  A. 
(N.  S.)  793  and  note. 


719  API'ROPRTATIOX    TNDKH    THE    KMIXEXT    DOMAIN  §  1206 

exercised.-'"  Where  the  charter  of  a  raih-oad  company  author- 
izes it  to  enter  upon  lands  adjacent  to  its  roadway  and  to  occupy 
them  "for  any  purpose  useful  or  necessary  in  the  construction  or 
re])air  of  such  roads,"  upon  ])ayment  of  damages,  it  has  been  held 
that  the  company,  by  its  servants  and  employes,  has  a  rij>-ht  to 
enter  upon  lands  adjoining  its  roadway,  and  erect  temporary 
buildings  for  the  use  of  its  workmen,  such  as  stables,  wagon 
houses,  blacksmith  shops,  depots,  and  the  like,  provided  it  takes 
no  more  land  than  is  necessary  for  its  purposes." 

§  1206  (961).  Roads  to  mines  or  manufacturing  establish- 
ments— Right  to  condemn  upheld. — In  several  of  the  states  pro- 
vision has  been  made  for  the  construction  of  short  lateral  rail- 
roads leading  from  mills,  quarries,  mines,  or  other  real  estate  re- 
quiring development,  to  some  navigable  stream,  railroad  or  canal, 
and  authorizing  the  exercise  of  the  power  of  eminent  domain  in 
building  them.  The  most  elaborate  provision  for  such  roads  is 
made  in  Pennsylvania,^^  where,  as  long  ago  as  1832,  an  act  was 
passed  providing  that, the  owner  of  any  land,  mills,  quarries,  coal 
mines,  lime  kilns,  or  other  real  estate,  might  condemn  lands  for 
a  railroad  to  any  existing  railroad,  canal  or  navigable  stream, 
not  exceeding  a  distance  of  three  miles,  and  imposing  upon  rail- 
roads built  under  the  act  the  duty  of  carrying  freight  for  whom- 
soever would  pay  a  specific  compensation.^^  Statutes  authoriz- 
es New  York  &c.  R.  Co.  v.  Gun-  for  the  purpose  of  excavating  mate- 
nison,  1  Hun  (N.  Y.)  496.  A  rail-  rials  can  not  be  permanently  taken 
road  company  which  constructs  a  under  a  power  to  take  the  land 
branch  line  through  a  man's,  land  that  may  be  necessary  in  construct- 
under  a  permissive  license  from  ing  the  road.  Eversfield  v.  Mid- 
him  to  construct  and  use  the  track  Sussex  R.  Co.,  3  DeG.  &  J.  286. 
thereon,  and  use  the  same  as  long  ■'"  Lauderbrum  v.  Duffy,  2  Pa.  St. 

as  it  shall  be  used  for  railroad  pur-       398;    Vermont    Central    R.    Co.    v. 
poses,    acquires    no    title    to    stone       Baxter,  22  Vt.  365. 
excavated  in  building  the  road  but  ^^  gge  a  summary  of  the  legisla- 

not    required    in     its    construction.       tion   and   decisions   on   this   subject 
And  it  can  not  remove  such  stone       in  Waddell  Appeal,  84  Pa..  St.  90. 
and    devote    it    to    other    purposes  ^^  Boyd  v.  Negley,  40  Pa.  St.  ^77. 

without  his  permission.  Chapin  v.  Of  this  act,  the  supreme  court  of 
Sullivan  R.  Co.,  39  N.  H.  564,  75  Pennsylvania  speaks  as  follows: 
Am.  Dec.  237.     Land  required  only       "The  truth  is,  when  a  lateral  rail- 


§  1206 


RAILROADS 


720 


ing  the  construction  of  similar  roads  have  been  upheld  in  Mary- 
land and  Missouri  upon  the  ground  that  the  roads,  when  con- 
structed, were  charged  with  the  duties  of  common  carriers  of  all 
freight  and  passengers  offered  for  transportation,  and  were  there- 
fore  public   highways.-"'     And   in   New   Jersey   the   courts   have 


road  is  laid  upon  intervening  lands, 
private   property   is   not   taken   for 
private  use.  .  .  .  The  private  prop- 
erty  is   taken   for   public    use, — for 
clear  and  definite  objects  of  a  pub- 
lic  nature    which    are    of   sufficient 
importance  to  attract  the  sanction 
of  the  sovereign.    That  an  individ- 
ual   expects    to    gain    thereby,    and 
has    private    motives    for    risking 
the  whole  of  the  necessary  invest- 
ment   and   acquires   peculiar   rights 
in    the    work,    detracts   not   a    whit 
from  the  public  aspects  of  it.  .  .  . 
It   was   found,   as   public   improve- 
ments penetrated  the  interior,  that 
many  productive  mines  and  manu- 
factories   situated   near   them   were 
still    separated   by   the    land    of    an 
unneighborly    owner,    which    must 
be  crossed  or  tonnage  lost  to  the 
public   improvements.     To   compel 
such    owners    to    admit   a   right    of 
passage  was  not  to  take  away  from 
them    a    fair    participation     in    the 
public  improvements,  and  to  com- 
pensate them  for  the  land  occupied 
was  to  do  all  they  had  a  right  to 
claim.      They    hold    their    land,    as 
every  man  does,  subject  to  the  call 
of     the     government."       Hays     v. 
Risher.  32   Pa.    St.    169. 

40  New  Central  Coal  Co.  v. 
George's  Creek  Coal  Co..  2i7  Md. 
537;  Dietrich  v.  Murdock.  42  Mo. 
279.  See  Brown  v.  Corey.  43  Pa. 
St.  495:  Colorado  Eastern  R.  Co. 
V.  Union   Pacific    R.   Co.,   41    Fed. 


293,  44  Am.  &  Eng.  R.  Cas.  10.     In 
this    latter    case,    Phillips,   J.,    said: 
"The  character  of  this  corporation 
is   first  to   be   determined  from   the 
language   of  its  charter.     It  is   de- 
clared to  be  a  railroad  to  be  oper- 
ated as  such  between  given  points, 
with   necessary  lines  of  telegraphs 
and      with      power      to      construct 
branches.      As    incident   to    its    ap- 
l^arent   character,   the   general  stat- 
ute   of   the    state    imposed    upon    it 
the   burden   and    duty   of   acting   as 
a    common    carrier    of    freight    and 
passengers.  .  .  .  Does  the  fact  that 
the  grant  authorizing  the  company 
to  extend  its  road  from  the  eastern 
designated  point  of  Sand  Creek  to 
its    coal    lands,    with    branches    to 
other  lands,  ex  vi   termini,  destroy 
or    take    away    its    character    as    a 
public  railroad  corporation?     T   am 
unable  to  discover  sufficient  reason 
or    authority   for    such    conclusion. 
In   the  first  place,  if  this  extension 
can   be   deemed  a   special  power,   it 
in    no    sense    is    inconsistent    with, 
or    contradictory    of,    the     general 
terms    of    the    grant,    so    that    they 
may  not  stand  together:  and,  sec- 
ond, the  power  to  build  to  the  coal 
or    other    lands    of    tlie    petitioner, 
without    more,    should    in    favor   of 
tlie    legality    of    the    franchise    be 
considered    as    merely    designating 
the  terminus  of  the  eastern  exten- 
sion   of   the    road,    or    the    termini 
of  its  branches,  and  not  as  a  pal- 


121 


.\l'PR()PRI.\TI(».\    I'NDER    THE    EMINENT    DOXfAIN 


§  1206 


sustained  an  act  which  authorizes  tlic  condemnation  of  land  for 
Iniilding  short  underground  railroads  leading  from  mines  to 
points  from  which  the  products  of  such  mines  can  readily   be 


pable  indication  that  the  real  mo- 
tive of  its  promoters  was  to  de- 
velop their  coal  fields,  and  conduct 
a  private  traffic  in  their  products. 
If  such  object  in  fact  existed,  it 
was  in  pais,  and  must  be  found  in 
evidence,  dehors  the  record."  After 
stating  that  the  evidence  showed 
tlie  road  to  extend  from  Denver 
to  the  coal  fields,  a  distance  of  sev- 
enteen miles,  and  to  have  been 
constructed  at  a  cost  of  $80,000.  by 
a  company  with  a  nominal  capital 
of  $500,000.  four-fifths  of  which 
consisted  of  its  coal  lands,  that  it 
was  built  through  a  sparsely  set- 
tled countrJ^  in  which  the  popula- 
tion has  since  increased,  and  that 
it  had  from  the  first  run  trains 
daily,  carrying  the  United  States 
mail,  and  such  passengers  and 
freight  as  were  offered  for  trans- 
portation, he  continued:  "Its  be- 
ginning may  have  been  small,  but 
if  the  right  to  exercise  the  power 
of  eminent  domain  should  have 
been  denied  in  the  early  history 
of  railroads  in  this  country,  be- 
cause of  their  small  beginnings,  it 
is  not  too  much  to  say  that  some 
of  the  great,  mammoth  railroad  en- 
terprises which  have  developed  and 
strengthened  the  commerce  and 
w-ealth  of  the  countr\'  would  have 
perished  in  their  infancy.  Tn  Chi- 
cago &c.  R.  Co.  v.  Chicago  &c. 
R.  Co..  112  111.  580.  25  .A.tn.  &  F.ng. 
R.  Cas.  158,  the  court  says:  'The 
company,  as  we  have  just  seen, 
was  organized  under  a  valid  char- 
ter, and  is  shown  to  have  done  cor- 


porate acts  under  it.  That  was 
sufficient  to  establish  a  jirima  facie 
right  to  take  the  property  in  ques- 
tion; ....  and  this  prima  facie 
right  can  not  be  successfully  as- 
sailed in  a  mere  collateral  proceed- 
ing, as  is  sought  to  be  done  here.' 
And  in  the  later  case  of  Ward  v. 
Minnesota  &c.  R.  Co.,  119  III.  287, 
10  N.  E.  365,  the  chief  justice  says: 
"There  is  some  proof  that  the  peti- 
tinncr  is  a  corporation  de  facto, 
and  that  is  all  the  law  requires  in 
this  class  of  cases.  There  is  evi- 
dence, although  it  maj-  be  slight, 
of  corporate  acts  done  by  petition- 
er. It  appears  that  an  engineer 
has  been  appointed,  the  line  of  the 
proposed  road  has  been  located, 
and    other   steps   taken    toward   the 

building   of   the    road These 

are  corporate  acts,  and  tend  to 
show  petitioner  is  a  corporation  de 
facto.'  It  does  seem  to  me  that 
the  right  of  eminent  domain  should 
not  necessarily  be  denied  to  a  rail- 
road corporation  because  of  the 
fact  that  the  primary'  and  chief  in- 
ducement moving  its  promoters 
was  to  develop  private  coal  mines, 
and  bring  their  products  to  market. 
In  Contra  Costa  R.  Co.  v.  Moss, 
2,?  Cal.  323.  the  court  says:  'It  is 
urged  that  the  plaintiffs  are  con- 
structing a  railroad  from  a  coal 
mine  in  the  mountains,  through  a 
desolate  region,  to  navigable  wa- 
ters, to  enable  it  to  get  coal  ready 
to  market,  and  that  this  is  a  mere 
private  use,  and  therefore  they 
have  no   right   to   appropriate   the 


S  1206 


RAILROADS 


790 


sent   to   market,   and   expressly   re(iuirin,iL;-  roads   built    under    its 
l)rt)visit)ns  to  carry  freight  for  any  one  having  occasion  to  nrike 


property  of  others  to  its  purposes 
without  its  consent.  .  .  .The  plain- 
tififs,    in    common    with    other    rail- 
road   companies    organized    under 
this  act,  are  bound  by  these  provi- 
sions which  make  it  obligatory  up- 
on them  to  act  as  common  carriers 
....  The  fact  that  their  road  does 
not  connect  points  of  present  com- 
mercial   importance   can   not   afifect 
the   rights   of  the   plaintiffs.      Rail- 
roads     often      make      commercial 
points    by    their    construction,    and 
a   large   and   cheap   supply  of  coal 
....  is  one  of  the  greatest  neces- 
sities of  the  state,  and  a  matter  in 
which  the  whole  state  is  interested.' 
In  the  progress  of  civilization,  mu- 
nicipal   existence    as    well    as    the 
maintenance    of    rural    populations 
without  timber  supply,  may  be   so 
dependent  upon  a  large  supply  of 
coal  for  fuel  as  to  render  railroads 
for  its  transportation   alone   of  im- 
perative public  necessity.  It  would, 
in  fact,  be  difficult  to  conceive  of  an 
object    of    greater    public    use.      It 
is  as  much  so  as  the  freightage  of 
breadstuffs,  meats  and  other  neces- 
sar}^  supplies  for  luiman  sustenance 
in     our     large     cities,    or     compact 
communities,    depending   upon    ex- 
terior sources  for  their  production. 
Tt    would    be    no    answer    to    their 
claim  to  be  public  corporations  to 
say,  for  instance,  that  a  community 
like    Denver    was    not    wholly    de- 
pendent upon  this  road  for  its  sup 
ply  of  fuel,  as  there  are  other  rail- 
roads  which    may  bring   such   sup- 
ply.     Competition    is   not   only   the 
life  of  trade  (or  at  least  is  yet  sup- 


posed  to   be   by   the   common   peo- 
ple),    but     the      multiplication     of 
products  and   the   facilities  for  get- 
ting    them     to     market,     tend     to 
cheapen    the   necessaries   of    life   to 
the    masses;    and    in    the    most   be- 
neficent  and   legitimate   sense   they 
should     retain    their     character     as 
public  necessities.     Government  it- 
self  is   maintained   to   promote   the 
general    welfare,    and    the    right    of 
eminent    domain     has    its    root    in 
this  soil.     Be  this  as  it  may  in  the 
light   of   adjudications,   certainly    it 
comes   both   within   the   letter   auvl 
the  spirit  of  a  public  railroad  cor 
poration  where   such   an   object,  as 
above    indicated,    is    coupled    with 
the    obligation,    inseparably    atlixed 
by  the  statute  to  the  franchise  it- 
self,   to    become    also    a    common 
carrier   of  passengers   and   freight, 
and    the    corporation    actually   per- 
forms such  duty  to  the  public.    The 
evidence    in    this    case    shows    that 
for  the   greater  period,  and  in  the 
latter   years,    of  the   existence   and 
operation  of  this  road,  its  business 
has  been  confined  principally  to  the 
carrying  of  passengers  and  general 
freight,  however  small  it  may  have 
been.     What  is  said  by  Depue,  J., 
in     Decamp     v.     Ilibernia     Under- 
ground R.  Co.,  47  N.  J.  L.  43,  re- 
specting   a   like   proceeding,  where 
a  railroad  began  in  a  mine,  is  quite 
pertinent.       'This     enterprise     does 
not  lose   the   character   of  a   public 
use    because    of    the    fact    that    the 
projected    railroad    is    not    a    thor- 
oughfare, and  that  its  use  may  be 
limited  by  circumstances  to  a  com- 


723 


AITROI'RIATION    IXDER    THE    EMINENT    DOMAIN 


§  1206 


use  of  them."  In  Iowa  a  mine  owner  is  permitted  l)y  statute  to 
condemn  land  lor  a  "public  way"  to  any  highway  or  railroad.  In 
sustaining"  a  proceeding  under  this  act  the  supreme  court  of  that 
state  said  :  "We  think  that  it  makes  no  difference  that  the  mine 
owner  may  be  the  only  member  of  the  public  who  may  have  oc- 
casion to  use  the  way  after  it  has  been  established.  The  char- 
acter of  a  way,  whether  it  is  public  or  private,  is  determined  by 
the  extent  of  right  to  use  it,  and  not  by  the  extent  to  which  that 
right  is  exercised.  If  all  the  people  have  the  right  to  use  it  it  is 
a  public  way,  although  the  number  who  have  occasion  to  exercise 
the  right  is  very  small.""'-     There  would  seem  no  good  reason 


paratively  small  part  of  the  public. 
Every  one  of  the  public  having 
occasion  to  send  materials,  imple- 
ments, or  machiner}^  for  mining 
purposes  into,  or  to  obtain  ores 
from,  the  several  mining  tracts  ad- 
jacent to  the  location  of  this  road, 
may  use  the  railroad  for  that  pur- 
pose, and  of  right  may  require  the 
company  to  serve  him  in  that  re- 
spect; and  that  is  the  test  which 
determines  whether  the  use  is  pub- 
lic. Nor  will  any  motive  of  per- 
sonal gain  which  may  have  influ- 
enced the  projectors  in  undertak- 
ing the  work  take  from  it  its  pub- 
lic character.  ...  A  particular 
improvement  palpably  for  private 
advantage  only  will  not  become  a 
public  use  because  of  the  theoreti- 
cal right  of  the  public  to  use  it. 
But  where  the  franchise  is  in  its 
nature  a  public  franchise,  as  the 
transportation  of  freight  is,  and 
the  object  to  be  promoted  is  one 
that  concerns  the  public  interests, 
as  the  development  of  the  mining 
resources  of  a  state  does,  the  im- 
provement is  essentially  a  public 
benefit  and  advantage;  and  if  there 
be   no  restriction   on   the   right   of 


the  public  to  use  it,  and  no  inabil- 
ity to  use  it,  except  such  as  arises 
from  the  circumstances,  the  court, 
in  determining  whether  the  im- 
provement is  such  a  public  use  as 
that  the  right  of  condemnation 
shall  extend  to  it,  will  not  scan 
closely  the  number  of  individuals 
profited  by  it.  Indeed,  it  would 
not  be  possible  to  indicate  the 
number  of  persons,  or  define  the 
area  of  the  limits  to  which  the 
benefit  of  such  an  improvement 
may  extend.' " 

*^  DeCamp  v.  Hibernia  Under- 
ground R.  Co,.  47  N.  T.  L.  43,  af- 
firmed 47  N.  J.  L.  518,  54  Am.  Rep. 
197.  In  this  case  the  road  con- 
structed was  only  two-thirds  of  a 
mile  long. 

■*-  Phillips  V.  Watson,  63  Iowa 
28.  18  N.  W.  659.  In  Lower  v. 
Chicago  &c.  R.  Co.,  59  Iowa  563, 
13  N.  W.  718,  the  right  of  the 
company  to  build  a  lateral  road, 
15  miles  long,  was  sustained,  al- 
though the  road  was  built  at  the 
instigation  of  private  individuals 
and  from  motives  of  private  gain. 
See  also  Morrison  v.  Thistle  Coal 
Co..  119  Iowa  705,  94  N.  W.  507. 


§  1206 


KA1I>K<I.\1)S 


"24 


why  lateral  roads  should  not  be  constructed,  if  they  are  re<|uired 
to  serve  the  public,  as  occasion  requires.  In  South  Carolina  it 
is  held  that,  under  the  constitution  of  that  state,  corporations 
created  tor  mining"  or  manufacturing  purposes  may  be  authorized 
by  statute  to  construct  and  operate  a  railroad,  tramw  ay.  turnpike 
cr  canal  for  their  own  use  and  purposes,  to  and  from  their  works, 
or  place  of  business,  or  to  connect  with  some  navig-able  stream, 
or  with  some  existing;  railroad,  turnpike  or  other  public  hi^ghway, 
not  to  exceed  ten  miles  in  length,  and  may  be  empowered  to 
condemn,  for  the  use  of  such  road,  the  right  of  way  in  lands  over 
which  the  road  may  pass,  upon  making:  compensation  therefor  to 
the  owner.'*-''  And  the  weight  of  authority,  as  well  as  the  l)etter 
reason,  seems  to  be  to  the  effect  that  lines  of  railroad,  branches 
cr  spurs  to  mines,  manufacturing  establishments,  and  the  like, 
are  a  public  use  for  which  land  may  be  condemned  where  the 
general  public  have  the  right  to  use  them  or  to  be  served  without 
discrimination.^* 


43  A  road  or  canal  constructed 
by  the  public  or  a  corporation  is 
a  public  highway  for  the  public 
benefit  if  the  public  have  a  right 
of  passage  thereon  by  paying  a 
reasonable,  stipulated,  uniform  toll. 
Bonaparte  v.  Camden  &c.  R.  Co., 
P.aldw.  (U.  S.)  205;  National  Docks 
R.  Co.  V.  Central  R.  Co.,  32  N.  J. 
Eq.  755:  Bacot,  Ex  parte,  36  S. 
Car.  125,  15  S.  E.  204,  16  T..  R.  .A. 
586,  50  Am.  &  Eng.  R.  Cas.  597. 

44  Bedford  Quarries  Co.  v.  Chi- 
cago &c.  R.  Co.,  175  Ind.  303,  35 
L.  R.  A.  (N.  S.)  641,  94  N.  E.  326 
(citing  text  and  numerous  author- 
ities) ;  Ulmer  v.  Linte  Rock  R.  Co., 
98  Maine  579,  57  Atl.  1001,  66  L.  R. 
A.  387:  Toledo  &c.  R.  Co.  v.  East 
Saginaw  &c.  R.  Co.,  72  Mich.  206, 
40  N.  W.  436:  Ochs  v.  Chicago  &c. 
Ry.  Co.,  135  Minn.  323,  160  N.  W. 
866,  Ann.  Cas.  1918E,  337,  339  (and 
the   state    may   empower   a    public 


service  commission  to  require  a 
railroad  company  to  provide  side 
tracks  to  adjacent  industries  at  its 
own  expense.  See  additional  cases 
there  cited  in  note,  also  note  in 
L.  R.  A.  1918B.  795):  Chicago  &c. 
R.  Co.  V.  Porter,  43  Minn.  527,  46 
N.  W.  75;  Butte  &c.  R.  Co.  v. 
Montana  &c.  R.  Co.,  16  Mont.  504, 
41  Pac.  232,  31  L.  R.  A.  298,  50  Am. 
St.  508:  Illinois  Cent.  R.  Co.  v. 
East  Sioux  Falls  Quarry  Co.,  33 
S.  Dak.  63,  144  N.  W.  724;  Zircle 
v.  Southern  R.  Co.,  102  Va.  17,  45 
S.  E.  802,  102  Am.  St.  805:  Chicago 
i*tc.  R.  Co.  V.  ]\Iorehouse,  112  Wis. 
1.  87  N.  W.  849,  56  L.  R.  A.  240, 
88  Am.  St.  918.  Sec  also  Harrold 
Bros.  V.  Americus,  142  Ga.  686,  83 
S.  E.  534:  Union  Lime  Co.  v.  Chi- 
cago &c.  R.  Co.,  233  U.  S.  Ill,  34 
Sup.  Ct.  517,  525.  58  L.  ed.  924, 
and  authorities  there  cited;  also 
ante  §  1205,  n.  25. 


725 


APPROI'KIATKJX    INDEK    TIIK    KMINEXT    DOMAIN 


§1207 


§  1207  (961a).  Right  to  condemn  for  road  to  private  enter- 
prise denied. — On  the  other  hand,  the  Supreme  Court  of  Illinois 
has  held  that  a  right  of  way  for  a  short  railroad  or  tramway  lead- 
ing from  a  coal  mine  to  a  railroad  can  not  be  taken  by  condemna- 
tion proceedings  instituted  l)y  the  company  owning  the  coal 
mine,  placing  its  decision  on  the  ground  that  the  business  of 
mining  coal  is  of  a  strictly  private  character,  and  that  the  coal 
company  would  be  at  liberty  to  operate  the  tramway  or  not,  at  its 
pleasure,  and  without  regard  to  the  interests  of  the  public.*'' 
So.  where  a  compan}'  was  organized  merely  to  construct  and 
operate  a  railroad  from  a  coal  mine  to  a  navigable  river,  but  car- 
ried no  passengers,  and  no  freight  except  coal,  it  was  held  that 
this  was  a  mere  private  use."*"  And  several  of  the  courts  have 
held  that  railroad  corporations  have  no  authority  to  condemn 
land  for  side-tracks  or  switches  leading  to  private  manufactur- 
ing estalilishments,  or  the  like,  for  their  own   private  benefit.*^ 


*^  Sholl  V.  German  Coal  Co.,  118 
111.  427,  10  N.  E.  199,  59  Am.  Rep. 
379.  See  Edgewood  R.  Co.'s  Ap- 
peal, 79  Pa.  St.  257. 

46  People  V.  Pittsburgh  R.  Co.. 
53  Cal.  694.  See  also  Chicago  &c. 
R.  Co.  V.  Wiltse,  116  III.  449,  6 
N.  E.  49;  ]\Iemphis  Freight  Co.  v. 
Memphis,  44  Tenn.  (4  Coldw.) 
419. 

■*"  Chattanooga  &c.  R.  Co.  v.  Fel- 
ton,  69  Fed.  273.  See  also  Atlanta 
&c.  R.  Co.  V.  Bradley.  141  Ga.  740. 
81  S.  E.  1104;  Bradley  v.  Lithonia 
&c.  R.  Co.,  141  Ga.  741.  82  S.  E. 
138  (distinguished  in  83  S.  E.  534. 
cited  in  last  note  to  preceding  sec- 
tion) ;  Pere  Marquette  R.  Co.  v. 
United  States  Gypsum  Co.,  154 
Mich.  294.  117  N.  W.  733,  22  L.  R. 
A.  (N.  S.)  181:  In  re  Grade  Cross- 
ing Conirs..  207  N.  Y.  52.  100  N.  E. 
714,  Ann.  Cas.  1914C,  271;  Neitzel 
V.  Spokane  International  R.  Co., 
65  Wash.  100,   117  Pac.  864,  36  L. 


R.  A.  (N.  S.)  522.  A  spur  track 
from  the  line  of  a  railroad  with 
which  it  does  not  connect  except 
at  one  point,  running  to  mills  be- 
longing to  private  concerns  and 
operated  for  private  profit,  is  not 
for  a  public  use  which  will  author- 
ize the  condemnation  of  land  for 
a  right  of  way.  Kyle  v.  Texas  &c. 
R.  Co.  (Tex.).  4  L.  R.  A.  275.  Evi- 
dence that  all  who  wish  to  avail 
themselves  of  a  proposed  railroad 
switch,  branch  road,  or  lateral 
work,  can  do  so,  is  not  sufficient 
to  show  that  the  use  of  the  work 
will  be  for  the  benefit  of  the  public. 
Pittsburgh  &c.  R.  Co.  v.  Benwood 
Iron  Works,  31  W.  Va.  710.  8  S.  E. 
453,  2  L.  R.  A.  680,  5  R.  &  Corp. 
L.  J.  324.  In  St.  Louis  &c.  R.  Co. 
V.  Petty.  57  Ark.  359.  21  S.  W.  884. 
20  L.  R.  A.  434  and  note,  which 
was  a  case  in  which  a  railroad 
sought  to  condemn  land  for  a  side- 
track near  the  lands  of  a  coal  com- 


§  1207 


RAILROADS 


726 


The  Supreme  Court  of  West  Virginia  has  held  that  a  road  from 
a  salt  mine  was  not  of  such  a  public  character  as  to  permit  the 


pany,  Cockrill,  C.  J.,  said:  "The 
vexed  question  for  determination 
is,  is  the  companj-  seeking  to  con- 
demn the  land  for  railroad  pur- 
poses— that  is,  for  public  use?  The 
appellee  argues  that  the  proof 
shows  that  the  railway's  proceed- 
ing to  condemn  is  prosecuted,  not 
for  its  own  use,  but  for  the  use 
and  benefit  of  the  Western  Coal 
and  Mining  Company — a  corpora- 
tion which  owns  and  operats  a 
coal  mine  near  the  appellant's  line 
of  railwaj\  The  managers  of  the 
railwajr  were  probably  instigated 
by  the  coal  company  to  institute 
the  condemnation  proceedings,  and 
they  doubtless  intended  that  the 
coal  company  should  derive  a  ben- 
efit therefrom.  But  those  facts 
alone  do  not  furnish  a  legal  reason 
sufficient  to  warrant  judicial  inter- 
ference with  the  power  delegated 
to  the  corporation  by  the  legis- 
lature. Tf  the  land  is  needed  for 
legitimate  railroad  purposes,  the 
motive  which  influenced  the  rail- 
way managers  in  undertaking  the 
work  will  not  take  from  it  its  pub- 
lic character,  A  proposed  public 
user  will  not  be  enjoined  by  the 
courts  upon  the  ground  that  it  will 
further  private  interest.  De  Camp 
V.  Hibernia  &c.  R.  Co.,  47  N.  J.  L. 
43;  National  Docks  R.  Co.  v.  Cen- 
tral R.  Co.,  32  N.  J.  Eq.  755:  South 
Chicago  &c.  R.  Co.  v.  Dix.  109  111. 
237;  Dunham  v.  Hyde  Park,  75  Til. 
371,  A  railway  can  not  exercise 
the  right  of  eminent  domain  to 
establish  a  private  shipping  sta- 
tion for  an   individual   shipper.     If 


the  station  is  for  the  exclusive  use 
of  a  single  individual,  or  of  a  col- 
lection of  individuals  less  than  the 
public,  that  stamps  it  as  a  private 
use,  and  private  property  can  not 
be  taken  for  private  use.  The  fact 
that  the  railway's  business  would 
be  increased  by  the  additional  pri- 
vate facilities  is  not  enough  to 
make  the  use  public.  Rensselaer 
&c.  R.  Co.  V.  Davis,  43  N.  Y.  137. 
To  the  public,  the  user  must  con- 
cern the  public.  If  it  is  an  aid  in 
facilitating  the  business  for  which 
the  public  agency  is  authorized  to 
exercise  the  power  to  condemn,  or 
if  the  public  may  enjoy  the  use  of 
it,  not  by  permission,  but  of  right, 
its  character  is  public.  When  once 
tlic  character  of  the  use  is  found 
to  be  public,  the  court's  inquiry 
ends,  and  the  legislative  policy  is 
left  supreme,  although  it  appears 
that  private  ends  will  be  advanced 
by  the  public  user.  It  is  common 
for  the  interest  of  some  individuals 
to  be  advanced,  while  that  of  oth- 
ers is  prejudiced,  by  the  location 
of  railway  stations  and  switches, 
when  there  is  no  motive  on  the 
part  of  the  railway  officials  to  dis- 
criminate between  them.  The  same 
effect  is  seen  in  the  original  loca- 
tion of  every  line  of  railway.  But 
tlie  courts  do  not  assume  to  inter- 
fere with  the  right  of  the  company 
to  locate  its  line  stations,  or 
switches.  In  this  case  the  railway 
located  its  side-tracks  contiguous 
to  the  mine  of  the  coal  company, 
rather  than  to  that  of  the  appel- 
lee, who  is  a  rival  miner.    The  evi- 


727 


APPROPRIATION    ITXDER    THE    EMINENT    DOMAIN 


§1207 


condemnation  of  a  ri^lit  of  way.''*  And.  in  a  late  case,''^  the  same 
court  held  that  even  a  corporation  formed  under  the  ,q"eneral  rail- 
road law  of  the  state  could  not  condemn  land  on  which  to  build 
<'..  short  line  of  road  fr)r  the  declared  purpose  of  "transporting 
freight  to  and  from  certain  steel  works."  The  court  said  :  "The 
mere  declaration  in  a  petition  that  the  property  is  to  be  ap- 
propriated to  public  use  does  not  make  it  so,  and  evidence  that 
the  public  will  have  a  right  to  use  it  amounts  to  nothing  in  the 
face  of  the  fact  that  the  only  incentive  to  ask  for  the  condemna- 
tion was  private  gain,  and  it  was  apparent  that  the  general  public 


dence  is  abundant  that  side-tracks 
were  necessary  to  facilitate  and 
hasten  the  business  offered  to  the 
company  at  that  point.  That  of 
itself  is  sufficient  to  give  public 
character  to  the  use  to  which  the 
land  was  to  be  devoted.  More- 
over at  that  point,  upon  this  very 
land,  as  the  proof  shows,  there  is 
established  a  shipping  station  for 
coal.  The  railway's  franchise  em- 
powers it  to  establish  none  but 
public  stations.  It  can  place  no 
unreasonable  restraint  on  the  right 
of  the  public  to  use  it.  If  the  rail- 
way maintains  a  coal-shipping  sta- 
tion at  that  point,  and  unreason- 
ably refuses  to  accord  to  the  ap- 
pellee, or  others  who  have  occa- 
sion to  ship  coal  therefrom,  facili- 
ties for  doing  so,  the  courts  can 
afford  a  remedy  for  the  wrong; 
and  if  the  railway  abuses  the  priv- 
ileges of  condemning  private  prop- 
erty to  a  public  use,  by  turning  the 
property  acquired  to  a  private  use, 
doubtless  the  easement  is  acquired 
by  condemnation  may  be  revoked, 
and  the  possession  restored  to  the 
owner  of  the  fee.  The  fact  that 
the  tracks  are  extended  upon  the 
lands  of  the  coal   company  for  its 


exclusive  use  is  not  a  matter  to 
concern  the  appellee,  for  the  rea- 
son before  stated;  that  is,  a  public 
use  is  first  subserved.  If  no  use 
could  be  made  of  the  side-tracks 
except  to  subserve  the  interest  of 
the  coal  company,  the  power  to 
condemn  could  not  be  exercised 
for  that  purpose.  Sholl  v.  German 
Coal  Co.,  118  111.  427,  10  N.  E.  199, 
59  Am.  Rep.  379.  But,  as  we  have 
seen,  that  is  not  this  case.  .  .  . 
There  are  numerous  cases  holding 
that  a  railway  built  for  the  pur- 
pose of  reaching  a  coal  mine  or  a 
manufacturing  establishment  is  a 
public  enterprise,  entitled  to  use 
the  power  of  eminent  domain,  pro- 
vided the  public  has  the  power  to 
use  it.  That  right  makes  the  use 
public.  Kettle  River  R.  Co.  v. 
Eastern  R.  Co.  of  Alinnesota,  41 
Minn.  461.  43  N.  W.  469,  6  L.  R.  A. 
Ill:  Pliillips  V.  Watson,  63  Iowa 
28.  18  N.  W.  659;  DeCamp  v.  Hi- 
bcrnia  R.  Co.,  47  N.  J.  L.  43:  Hays 
v.  Risher,  32  Pa.  St.  169,  177." 

48  Salt  Co.  V.  Brown,  7  W.  Va. 
191. 

*^  Pittsburgh  &c.  R.  Co.  v.  Ben- 
wood  Iron  Works,  31  W.  Va.  710, 
8  S.  E.  453,  2  L.  R.  A.  680. 


U207 


KA1LK(JADS 


ros 


had  no  interest  in  it."'^"  In  a  late  case  in  one  of  the  United 
States  courts  it  was  held  that  a  projected  railroad  twelve  miles 
long,  connecting  two  other  railroads,  and  passing  through  valu- 
able timber  lands  from  which  the  projector  and  principal  stock- 
holder expected  to  procure  bark  for  his  tanneries,  was  a  private 
enterprise,  and  that  the  company  seeking  to  construct  it  was  not 
entitled  to  exercise  the  right  of  eminent  domain. ^^  The  corpora- 
tion was  organized  under  the  general  railroad  law  of  the  state, 
and  its   projectors  claimed  that   it  was   organized   for   a   public 


•"50  Pittsburgh  &c.   R.  Co.  v.  Ben- 
wood  Iron  Works,  31  W.  Va.  710, 
8   S.   E.   453,  2   T..    R.   A.   680   and 
note,  36  Am.   &  Eng.   R.   Cas.  531. 
This    case    contains    an    exhaustive 
review  of  the  authorities  touching 
the  power  to  condemn  land  for  a 
railroad  leading  to  a  private  estab- 
lishment.    And  see  Gauley  &c.  R. 
Co.  V.  Vencill,  1Z   W.  Va.  650,  80 
S.    E.    1103.      See   also    Denver    R. 
&c.   Co.   V.  Union   Pac.    R.   Co.,  34 
Fed.   386,    where    it    was    said,    per 
Judge  Hallett:    "The  inquiry  is  not 
as  to  what  the  company  was  organ- 
ized   for,    or   whether    it    will    be   a 
public   or   private   corporation,   but 
what   the   road   will   be,  the    struc- 
ture   itself,    if   any   such   thing   will 
be  made."     Chicago  &c.  R.  Co.  v. 
Wiltse,  116  111.  449,  6  N.  E.  49. 

5iWeidenfeld  v.  Sugar  Run  R. 
Co..  48  Fed.  615.  Judge  Reed  said: 
"Whether  the  use  is  a  public  one, 
for  which  private  property  may  be 
taken,  is  a  judicial  question.  If 
the  use  itself  is  found  to  be  only 
private,  or,  further,  if  the  use  be- 
ing public,  the  appropriation  can 
in  no  respect  be  subservient  there- 
to, it  is  the  duty  of  the  judicial  de- 
partment to  protect  the  citizen  by 
proper  remedies  from  the  taking 
of  his  property,  whether  attempted 


in  open  disregard  of,  or  under  color 
of    law.      J^oom    Co.    v.    Patterson, 
98   U.  S.  403,  25  L.  ed.  206.    .    .    . 
In  the  case  of  Edgewood  R.  Com- 
pany's  Appeal,    79    Pa.   St.   257,   it 
appeared,    as    in    this    case,    that    a 
number    of    persons    had    procured 
a   cliarter  for  a  railroad  company, 
and.    under    cover    of    constructing 
a  railroad  for  public  use,  were  en- 
gaged in  the  construction  of  a  rail- 
road   from   a  tract    of   coal   owned 
by  themselves,  to  the  Pennsylvania 
Railroad.      A    bill    was    filed    by    a 
property-owner  to  restrain  the  ap- 
propriation, by  virtue  of  the  power 
of  eminent  domain  conferred  upon 
the  railroad  company,  of  a  portion 
of  his  property  for  its   uses.     The 
supreme     court     of     Pennsylvania, 
finding    the    facts    to    be    that    the 
railroad    was    projected    and    con- 
structed   with    the    primary    object 
of  connecting  the  coal  mines  with 
the     Pennsylvania     Railroad,     held 
that    the    railroad    was    being   con- 
structed for  private  purposes  under 
cover  of  a  charter  obtained  under 
the    general    railroad    laws    of    the 
state;    that   there   appeared    a    per- 
version of  an  enactment  passed  for 
one    purpose   in   order  to   subserve 
other    and    inconsistent    purposes; 
that  the   charter   of  the   defendant 


729 


APPROPRIATION    IXDEK    THE    KMIXICNT    DOMAIN' 


§  1207 


purpose.  l)ut  failed,  on  llie  trial,  to  show  any  ])ublic  use  or  neces- 
sity for  the  railroad,  or  that  it  would  obtain  any  public  traffic 
when  constructed.'^-  It  has  Ijeen  held  by  the  Court  of  Appeals 
of  New  York  that  a  company  organized  under  the  general  laws 
of  that  state  for  the  formation  of  elevated  tramway  corporations, 
and  owning  a  road  one  terminus  of  which  was  upon  private  prop- 
erty, and  could  only  be  reached  by  means  of  a  private  road,  and 
which  was  used  solely  for  the  transportation  of  stone  for  a  private 
corporation  in  which  the  incorporators  were  financially  interest- 
ed, could  not  exercise  the  power  of  eminent  domain.  The  fact 
that  the  corporation  was  ready  to  carry  freight  offered  to  it  by 
any  person,  providing  that  such  freight  was  suitable  for  trans- 
portation in  the  overhead  buckets  with  which  the  road  was  pro- 
\ided  in  lieu  of  cars,  to  the  extent  of  its  surplus  capacity  after 
supplying  the  wants  of  the  private  corporation,  was  held  in- 
sufficient to  show  that  it  was  a  public  use.''''"  Some  of  these 
cases,  it  seems  to  us,  are  contrary  to  the  weight  of  authority,  but 
most  of  them  can  be  distinguished. 


company  did  not  warrant  the  ap- 
propriation of  the  land  of  the  plain- 
tiff for  the  purpose  to  which  the 
defendant  had  applied  it;  ind  that 
it  did  not  possess  the  right  or 
franchise  to  do  the  acts  which  had 
resulted  in  the  injury  of  which  the 
plaintiff  complained."  In  Western 
Pennsylvania  R.  Company's  Ap- 
peal. 104  Pa.  St.  399,  the  same 
court,  commenting  upon  the  Edge- 
wood  R.  Co.  Case,  said:  "A  char- 
ter authorizing  the  building  of  a 
public  railroad  did  not  warrant  the 
construction  of  a  purely  private 
one.  .  .  .  The  question  was  one 
of  corporate  power,  and  that  ques- 
tion was  determined  by  the  in- 
spection of  the  charter  of  the  com- 
panj'  proposing  to  exercise  the 
power." 

52  It  would   seem  that  this  point 
made   by   the    court   was    not   well 


taken,  as  it  had  been  shown  to  the 
court  that  another  railroad  com- 
pany was  seeking  to  build  a  rail- 
road over  nearly  the  same  route 
chosen  by  the  Sugar  Run  Co.,  and 
it  was  as  one  of  the  stockholders 
of  that  other  company  that  the 
plaintiff  claimed  the  right  to  sue. 

53  Split  Rock  Cable  Road  Co..  In 
re,  128  N.  Y.  408,  28  N.  E.  506.  See 
also  Leigh  v.  Garysburg  Mfg.  Co., 
132  N.  Car.  167,  43  S.  E.  632.  To 
be  public,  the  user  must  concern 
the  public.  If  it  is  an  aid  in  fa- 
cilitating the  business  for  which 
the  public  agency  is  authorized  to 
e.xercise  the  power  to  condeinn. 
or  if  the  public  may  enjoj^  the  use 
of  it,  not  by  permission,  but  of 
right,  its  character  is  public.  St. 
Louis  &c.  R.  Co.  V.  Petty,  57  Ark. 
359,  21  S.  W.  359,  20  L.  R.  A.  434 
and  note. 


S1208 


UAILHOADS 


730 


§  1208  (962).  Condemnation  of  land  for  future  use — Second 
appropriation. — It  has  been  iield  that  a  railroad  company  may 
t.-.ikc  lands  that  will  be  required  in  the  future  to  accommodate  a 
growing  business,  where  it  acts  in  good  faith.'"*  But  it  can  not. 
under  pretense  of  acquiring  lands  for  future  use,  take  them  for 
purposes  of  speculation,  or  to  prevent  their  acquisition  by  com- 
peting lines. ^^  Nor  will  a  collateral  enterprise  remotely  con- 
nected with  the  operation  of  the  road  ordinarily-  juslil}'  the  as- 
sertion of  the  right  of  eminent  domain  without  authority  other 
than  a  general  law  to  condemn  for  railroad  purposes. ^*^  Thus,  in 
New  York,  it  has  been  held  that  the  railroad  law  of  that  state, 
giving  power  to  condemn  land  necessary  for  the  construction, 
operation  and  maintenance  of  a  railroad,  does  not  authorize  a 
railroad  corporation  having  a  completed  line  through  an  in- 
corporated village  to  condemn  land  for  a  new  and  straighter  line 
through  the  town,  to  be  used  as  a  cut-oiT  and  an  additional  line." 
In  determining  the  quantity  to  be  taken,  however,  where  the 
.authority  exists,  the  prospective  needs  of  the  company  may  be 
considered  to  a  reasonable  extent.^*  As  a  general  rule,  a  single 
appropriation  does  not  exhaust  the  power,^^  and  new  appropria- 


5*  Lodge  V.  Philadelphia  &c.  R. 
Co.,  8  Phila.  (Pa.)  345.  See  also 
Michigan  Cent.  R.  Co.  v.  Fergu- 
son, 162  Mich.  220,  127  N.  W.  320; 
Chew  V.  Philadelphia,  257  Pa.  St. 
589,  101  Atl.  915,  L.  R.  A.  1918A, 
96,  990;  Miller  v.  Pulaski,  114  Va. 
85,  75  S.  E.  161. 

s"*  Rensselaer  &c.  R.  Co.  v.  Da- 
vis, 43  N.  Y.  137;  New  York  Cent. 
&c.  R.  Co.,  In  re,  59  Hun  7.  8 
N.  Y.  S.  290.  See  also  In  re  New 
Haven  Water  Co.,  86  Conn.  361, 
85  Atl.  dZd;  Webster  v.  Susque- 
hanna &c.  Co.,  112  Md.  416,  Id 
Atl.  259;  Long  Island  R.  Co.  v. 
Sherwood,  136  N.  Y.  S.  752;  Scran- 
ton  Gas  &c.  Co.  v.  Northern  Coal 
&c.  Co.,  192  Pa.  St.  80.  43  Atl.  470, 
IZ  Am.  St.  798. 

56  Rochester    &c.    R.    Co.,    In    re. 


110  N.  Y.  119,  17  N.  E.  678.  But, 
as  already  shown,  some  purposes 
that  seem  more  or  less  of  a  collat- 
eral nature  may  be  authorized 
when  a  public  use.  A  statute  giv- 
ing a  railroad  company  the  right 
to  use  streets  for  a  right  of  way 
does  not  authorize  such  an  appro- 
priation for  a  railroad  yard.  Rock- 
ford  V.  Cleveland  &c.  R.  Co.,  85 
Ohio  St.  n,  97  N.  E.  133. 

•-'7  Erie  R.  Co.  v.  Steward,  170 
X.  Y.  172,  (>Z  N.  E.  118.  But  com- 
pare Rierly  v.  Philadelphia  &c.  R. 
Co..  225  Pa.  St.  182,  74  Atl.  27. 

58  New  York  &c.  R.  Co.,  In  re, 
11  N.  Y.  248;  Lodge  v.  Philadelphia 
&c.  R.  Co.,  8  Phila.  (Pa.)  345.  See 
also  note  54  ante. 

'"^  Elliott  Roads  and  Streets  ('3rd 
cd.).  §  260;  Ewing  v.  Alabama  &c. 


731 


APPROPRIATION    T'KDER    THE    EMINENT    DOMAIN 


§1208 


tions  may  be  made  from  time  to  time  as  the  necessities  of  the 
road  may  require.®"  So,  of  course,  a  futile  effort  to  condemn 
does  not  exhaust  the  power  and  prevent  the  company  from  after- 
wards proceeding  in  the  proper  manner  to  condemn.®^  A  re- 
organized company  can  not,  however,  condemn  hinds  where  the 
company  it  succeeds  has  exhausted  all  this  power  given  it  l)y  its 
charter. "- 

§  1209  (963).  What  may  be  appropriated— Generally.— All 
kinds  of  property,  and  every  variety  and  degree  of  interest  in 
property,  may  be  taken  under  the  power  of  eminent  domain  by 
the  state,  or  by  a  corporation  acting  under  the  authorit}-  of  the 


R.  Co.,  68  Miss.  551.  9  So.  295. 
See  also  Chicago  &c.  R.  Co.  v.  Mc- 
Covey,  273  Mo.  29,  200  S.  W.  59; 
Yadkin  River  &c.  Co.  v.  Wissler, 
160  X.  Car.  469,  l(y  S.  E.  267; 
Burkhard  v.  Penna.  Water  Co., 
234  Pa.  St.  41,  82  Atl.  1120;  State 
V.  Superior  Ct.,  68  Wash.  397,  123 
Pac.   529. 

60  Chicago  &c.  R.  Co.  v.  Wilson, 
17  III.  123;  Fisher  v.  Chicago  &c. 
Co.,  104  111.  323;  Prather  v.  Jeffer- 
sonville  &c.  R.  Co.,  52  Ind.  16; 
Peck  V.  Louisville  &c.  R.  Co.,  101 
Ind.  366;  Atchison  &c.  R.  Co.  v. 
Patch,  28  Kans.  470;  Deitrichs  v. 
Lincoln  &c.  R.  Co.,  13  Nebr.  361, 
13  N.  W.  624;  Virginia  &c.  Co.  v. 
Lovejoy,  8  Nev.  100;  New  York 
&c.  R.  Co.,  In  re,  67  Barb.  (N.  Y.) 
426;  New  York  &c.  R.  Co.  v. 
Welsh,  69  Hun  619,  23  N.  Y.  S. 
195;  South  Carolina  &c.  R.  Co.  v. 
Blake.  9  Rich.  (S.  Car.)  228.  See 
also  Kenny  v.  Pittsburgh  &c.  R. 
Co.,  208  Pa.  St.  30,  57  Atl.  74; 
Gardner    v.    Georgia    &c.    R.    Co., 


117  Ga.  522,  43  S.  E.  863;  Hopkins 
V.  Philadelphia  &c.  R.  Co.,  94  Md. 
257,  51  Atl.  404;  Middlesex  &c. 
Traction  Co.  v.  Metlar.  70  N.  J.  L. 
98,  56  Atl.  142;  post,  §  1221.  But 
see  Mason  v.  Brooklyn  &c.  Co.,  35 
Barb.  (N.  Y.)  2>12>;  Kenton  Co.  v. 
Bank  Lick  Tpk.  Co.,  10  Bush  (Ky.) 
529;  Brigham  v.  Agricultural  &c. 
Co..  1  Allen  (Mass.)  316;  Morris 
&c.  R.  Co.  V.  Central  &c.  Co.,  31 
X.  J.  L.  205. 

61  State  V.  Dover  &c.  R.  Co.,  43 
N.  J.  L.  528,  14  Am.  &  Eng.  R. 
Cas.  87;  Cincinnati  &c.  R.  Co.  v. 
Haas,  42  Ohio  St.  239.  22  Am.  & 
Eng.  R.  Cas.  164;  Williams  v. 
Hartford  &c.  R.  Co.,  13  Conn.  397. 
See  also  Bouvier  v.  Baltimore  &c. 
R.  Co.,  51  N.  J.  L.  781,  53  Atl.  1040. 
But  compare  New  York  &c.  R.  Co. 
V.  Boston  &c.  R.  Co.,  Zd  Conn. 
196;  Brooklyn  &c.  R.  Co.,  Matter 
of.  72  N.  Y.  245;  Peavy  v.  Calais 
R.  Co.,  30  Maine  498. 

62  Erie  R.  Co.  v.  Steward.  170 
N.  Y.  172,  63  N.  E.  118. 


§  1209 


RAILROADS 


732 


Itgislature."^  IMortgaged  pr()i)erty,"^  easements,"'  i)roi)ert}-  in 
the  hands  of  a  receiver,'"''''  and  pntpe-rty  held  by  the  ])etitioner 
under  a  lease,  may  all  l)e  taken  b}'  a  railroad  e(M-])()ration  under  a 
general  grant  of  power  to  condemn  ])ropcrty  necessary  for  its 
use."'  The  fact  that  the  i)etitioner  has  confirmed  certain  rights 
to  a  land-owner  by  contract  does  not  preclude  it  from  condemn- 
ing those  rights."^  So,  land  taken  from  the  possession  of  the 
railroad  company  for  breach  of  a  condition  subsequent  in  a  deed 
conveying  same  may  be  repossessed  in  condemnation  proceed- 
ings."°     Thus,  where  a  land-owner  had  contracted  with  a  rail- 


^^  Long  Island  Water  Supply  Co. 
V.  Brooklyn,  166  U.  S.  685,  17  Sup. 
Ct.  718,  41  L.  ed.  1165;  Alabama 
&c.  R.  Co.  V.  Kenney.  39  Ala.  307; 
New  York  &c.  R.  Co.  v.  Boston 
&c.  R.  Co.,  36  Conn.  196;  Metro- 
politan City  R.  Co.  V.  Chicago 
West.  Div.  R.  Co.,  87  III.  317; 
Water  Works  Co.  v.  Burkhart,  41 
Ind.  364;  Eastern  R.  Co.  v.  Boston 
&c.  R.  Co.,  Ill  Mass.  125,  15  Am. 
Rep.  13;  People  v.  Baltimore  &c. 
R.  Co.,  117  N.  Y.  150,  22  N.  E. 
1026.  See  also  Pittsburgh  &c.  R. 
Co.  V.  Hunt,  171  Ind.  189,  86  N.  E. 
328.  Louisiana  &c.  R.  Co.  v. 
Louisiana  R.  Co.,  125  La.  Ann. 
756,  51  So.  712.  In  New  York  &c. 
R.  Co.  V.  Offield,  77  Conn.  417,  59 
Atl.  510,  it  is  held  that  the  legis- 
lature may  authorize  stock  in  one 
railroad  to  be  condemned  by  an- 
other under  certain  circumstances 
where  it   is  for  the  public  interest. 

6*  Alabama  &c.  R.  Co.  v.  Ken- 
ney, 39  Ala.  307;  Long  Island  Dock 
&c.  Co.  V.  Morris  &c.  R.  Co.  (N. 
J.).  30  Am.  &  Eng.  R.  Cas.  431, 
and  note.  See  also  State  v.  St. 
Louis  &c.  R.  Co.  (Tex.  Civ.  App.), 
165  S.  W.  491. 

6"5  Buffalo  &c.  R.  Co.  v.  Overton, 
35  Ilun  (N.  Y.)  157:  Rensselaer  v. 
Leopold.  106  Ind.  29;  Johnston  v. 
Old  Colony  R.  Co..  18  R.  I.  642, 
29  Atl.  594,  49  Am.  St.  800.  See 
also  Whitcrocks  Irr.  Co.  v.  Moose- 


man,  45  Utah  79,  141  Pac.  459. 
Rights  of  way  may  be  taken.  Ga- 
lena &c.  R.  Co.,  In  re,  73  III.  494; 
Boston  Gas  Light  Co.  v.  Old  Col- 
ony R.  Co.,  14  Allen  (Mass.)  444; 
Baltimore  &c.  R.  Co.  v.  Reaney, 
42  Md.  117;  Sixth  Ave.  R.  Co.  v. 
Kerr,  72  N.  Y.  330;  Brown  v.  Co- 
rey, 43  Pa.  St.  495.  But  there  must 
be  compensation.  Central  Pass. 
R.  Co.  V.  Philadelphia  &c.  Ry.  Co., 
95  Md.  428,  52  Atl.  752;  Southern 
Kans.  R.  Co.  v.  Oklahoma  City, 
12  Okla.  82,  69   Pac.   1050. 

^'j  Western  Union  Tel.  Co.  v. 
Atlantic  &c.  Tel.  Co.,  7  Biss.  (U. 
S.)  367;  Central  R.  Co.  v.  Penn- 
sylvania R.  Co.,  31   N.  J.  Eq.  475. 

6''  De  Camp  v.  Hibernia  Under- 
ground R.  Co.,  47  N.  J.  L.  43; 
Coster  V.  New  Jersey  &c.  R.  Co., 
24  N.  J.  L.  730;  Kip  v.  New  York 
&c.  R.  Co.,  6  Hun  24,  affirmed,  67 
N.  Y.  227;  Secomb  v.  Milwaukee 
&c.  R.  Co.,  49  How.  Prac.  (N.  Y.) 
75.  But  usufructuary  interest  of 
lessee  of  a  railroad  belonging  to 
the  state  is  held  not  subject  to 
condemnation  as  an  independent 
interest  in  land.  Western  Un.  Tel. 
Co.  V.  Western  &c.  R.  Co..  142 
Ga.  532,  83  S.'  E.  135. 

68  Brimmer  v.  Boston,  102  Mass. 
19. 

"0  Bouvier  v.  Baltimore  &c.  R. 
Co.,  69  N.  J.  L.  149,  53  Atl.  1040. 


733 


APPROI'RIATIO.V    r.XDEK    THK    EMINENT    DOMAIN 


§1209 


road  conipaii}  fur  the  construction  of  a  particular  crossing",  his 
right  to  have  it  constructed  was  held  subject  to  condemnation/" 
and  where  one  railroad  accepted  from  another  a  grant  of  a  right 
of  way  across  the  grantor's  road  thirty  feet  wide,  on  condition 
that  it  should  only  be  used  for  tw^o  tracks,  it  was  held  that  the 
grantee  could  condemn  an  additional  twenty  feet  to  be  occupied 
by  two  more  tracks. '^^  And  the  fact  that  the  land  was  granted, 
w  ith  covenants  for  quiet  enjoyment  by  the  state  or  municipality 
which  seeks  to  condemn  it,  does  not  afifect  the  pow'er,^-  since  it 
can  not  be  surrendered  by  grant  or  contract, ^^  and  all  grants  by 
the  state  are  held  to  be  made  upon  the  implied  condition  that 
the  property  conveyed  shall  be  subject  to  the  ]K)wer  of  eminent 
dtjmain."''  Land  or  any  estate  therein  may  be  taken  although  the 
owner  is  under  legal  disabilities.'^  Dwelling-houses  and  other 
buildings  may  also  be  taken  when  necessary,  under  statutory 
authority.'*^ 


•0  New  York  &c.  R.  Co.,  ^Fatter 
of,  44  Hun  (N.  V.)  194.  The  right 
of  eminent  domain  can  not  be  im- 
paired or  defeated  by  any  private 
contract  between  a  corporation  and 
the  owner  of  property  which  the 
legislature  may  subsequently  deem 
necessary  for  public  use.  Corn- 
wall v.  Louisville  &c.  R.  Co.,  87 
Ky.  72,  9  Ky.  L.  924,  7  S.  W.  553. 

'■1  Chicago  &c.  R.  Co.  v.  Illinois 
Cent.  Co.,  113  111.  156.  Where  land 
is  dedicated  for  the  use  of  a  rail- 
road, upon  the  condition  that  no 
greater  width  than  that  dedicated 
shall  ever  be  taken,  the  condition 
will  not  prevent  the  condemnation 
of  other  land  subsequently  needed: 
but  equity  may  compel  the  com- 
l)any  to  compensate  the  owner  for 
all  the  land,  both  that  dedicated 
and  that  condemned,  as  a  condi- 
tion of  allowing  more  land  to  be 
taken.  Cornwall  v.  Louisville  &c. 
R.  Co.,  87  Ky.  72,  7  S.  W.  553. 

^-  trimmer  v.   Boston,   102  Mass. 


19:  Philadelphia  &c.  R.  Co.  v.  Phil- 
adelphia, 9  Phila.  (Pa.)  563;  Beek- 
man  v.  Saratoga  &c.  R.  Co.,  3 
Paige  (N.  Y.)  45,  22  Am.  Dec.  679 
and  note:  Young  v.  McKenzie,  3 
Ga.  31;  Jackson  v.  Winn's  Heirs, 
4  Littell   (Ky.)  322. 

"3  Ante,  §  1185. 

'*  Beekman  v.  Saratoga  &c.  R. 
Co.,  3  Paige  (N.  Y.)  45,  22  Am. 
Dec.  679;  Todd  v.  Austin,  34  Conn. 
78;  Harding  v.  Goodlett,  3  Yerg. 
(Tenn.)   41. 

"^  Alabama  &c.  R.  Co.  v.  Ken- 
ney,  39  Ala.  307;  Indiana  &c.  R. 
Co.  V.  Brittingham,  98  Ind,  294; 
Hotchkiss  V.  Auburn  &c.  R.  Co., 
36  Barb.  (N.  Y.)  600;  Watson  v. 
New  York  Central  R.  Co.,  47  N.  Y. 
157;  North  Pennsylvania  R.  Co.  v. 
Davis,  26  Pa.  St,  238;  East  Ten- 
nessee &c.  R.  Co.  v.  Love,  3  Head 
(Tenn.)  63. 

76  Wells  v.  Somerset  &c.  R.  Co., 
47  Alaine  345;  Forney  v.  Fremont 
&c.  R.  Co.,  23  Nebr.  465,  36  N.  W. 


§  1210 


RAILROADS 


■34 


§  1210  (964).  Property  of  other  corporations. —  The  proi)erty 
of  a  corporation,  as  well  as  that  of  an  individual,  is  liable  to  be 
taken  under  the  right  of  eminent  domain,  when  authorized  by 
the  legislature,  upon  payment  of  just  compensation."  Thus,  the 
property  of  colleges  may  be  taken,'^  and  so,  also,  may  the  prop- 
erty of  turnpikes'^  or  toll-bridge  companies,*"  railroad  compan- 
ies,^^ and  other  corporations  of  a  public  or  quasi    public    char- 


806;  Marlor  v.  Philadelphia  &c.  R. 
Co.,   166    Pa.   St.   524,   31   Atl.   255. 
But,   as  we   shall    hereafter   see,   it 
is    frequently    provided    that    such 
property  shall  not  be  taken.     And 
the  right  of  one  railroad  company 
to  condemn  the  depots  of  another 
railroad  company  has  been  denied. 
St.   Louis   &c.    R.   Co.  V.   Memphis 
&c.  R.  Co..  102  Ark.  492,  143  S.  W. 
107;     Commonwealth     v.     Norfolk 
&c.  R.  Co.,  Ill  Va.  59,  68  S.  E.  551. 
"^  Alabama    &c.    R.    Co.    v.    Ken- 
ney.  39   Ala.  307;   East  &c.  R.  Co. 
V.    East   Tennessee   &c.   R.   Co.,  75 
Ala.    275;    Bridgeport    &c.    R.    Co. 
V.  New  York  &c.  R.  Co.,  36  Conn. 
255.  4  Am.  Rep.  63;  note  in  9  Am. 
St.  137;   Lake  Shore  &c.  R.  Co.  v. 
Chicago  &c.   R.   Co.,  97  111.  506,  2 
Am.  &  Eng.  R.  Cas.  440;    Chicago 
&c.  R.  Co.  V.  Metropolitan  &c.  R. 
Co.,    152    111.    519,    38    N.    E.    736; 
Terre    Haute  v.   Evansville   &c.    R. 
Co.,  149  Ind.  174,  46  N.  E.  77  (cit- 
ing text);   Eastern   R.   Co.  v.  Bos- 
ton &c.  R.  Co.,   Ill   Mass.   125,   15 
Am.   Rep.   13;   Old   Colony   R.   Co. 
V.  Framingham  &c.  Co.,  153  Mass. 
561,  27  N.  E.  662,  13  L.  R.  A.  332 
and    note;    Toledo    &c.    R.    Co.    v. 
Detroit   &c.   R.   Co.,  62   Mich,   564, 
29  N.  W.  500,  4  Am.  St.  875;  New 
York    &c.    R.    Co.   v.    Metropolitan 
&c.  Co.,  63  N.  Y.  326,  notes  to  24 
Am.   Rep.  551,   10  Am.   &  Eng.   R. 


Cas.  31,  14  Am.  &  Eng.  R.  Cas.  42; 
White's  Supp.  to  Thomp.  Corp. 
§§  2750-2752,  and  authorities  cited 
in   following  notes,  infra. 

-8  St.  Paul  &c.  R.  Co.,  In  re,  34 
Minn.  227,  25  N.  W.  345;  Univer- 
sity of  Minnesota  v.  St.  Paul  &c. 
R.  Co.,  36  Minn.  447,  31  N.  W. 
936:  Belfast  Academy  v.  Salmond, 
11  Maine  109.  So  may  the  ceme- 
tery of  a  religious  corporation. 
New  York  Street  &c..  Re,  133  N. 
Y.  329,  31  N.  E.  102,  16  L.  R.  A. 
180,  28  Am.  St.  640. 

"»  Lafayette  Plank  Road  Co.  v. 
New  Albany  &c.  R.  Co.,  13  Ind. 
90,  74  Am.  Dec.  246;  Armington 
V.  Barnet,  15  Vt.  745,  40  Am.  Dec. 
705;  Backus  v.  Lebanon,  11  N.  H. 
19,  35  Am.  Dec.  466;  Baltimore 
&c.  I'urnp.  V.  Baltimore  &c.  R. 
Co..  81  Md.  247,  31  Atl.  854. 

so  West  River  Bridge  Co.  v.  Dix, 
6  How.  (U.  S.)  507,  12  L.  ed.  535; 
Enfield  Toll  Bridge  Co.  v.  Hart- 
ford &c.  R.  Co.,  17  Conn.  454,  44 
Am.  Dec.  556,  and  note;  North- 
ampton Bridge  Case,  116  Mass. 
442;  Crosby  v.  Hanover,  36  N.  H. 
404;  Red  River  Bridge  Co.  v. 
Clarksville,  1  Sneed  (Tenn.)  176. 
60  Am.  Dec.  143. 

81  Northern  Pac.  Co.  v.  St.  Paul 
&c.  R.  Co.,  3  Fed.  702;  New  York 
&c.  R.  Co.  V.  Boston  &c.  R.  Co., 
36  Conn.   196:   Chicago  &c.  R.  Co. 


735 


APPROPRIATIOX    rXDRR    THE   EMINENT    DOMAIN' 


§1210 


acter^-  where  such   takitij^'  is  authorized  by  the   lc,<^is]ature.  but 
not  otherwise.^-'     Any  property  may  l)e  taken  of  either  a  private 


V.  Lake,  71  111.  333;  Pittsburgh  &c. 
R.  Co.  V.  Sanitary  Dist.,  218  111. 
286.  75  N.  E.  892,  2  L.  R.  A.  CN. 
S.)  226  (strip  of  railroad  land  taken 
for  Chicago  drainage);  Baltimore 
&:c.  R.  Co.  V.  North,  103  Ind.  486, 
3  N.  E.  144;  Terre  Haute  v.  Ev- 
ansville  &c.  R.  Co.,  149  Ind.  174, 
46  N.  E.  77,  37  L.  R.  A.  189  (citing 
text);  Pennsylvania  R.  Co.  v.  Bal- 
timore &c.  R.  Co.,  60  Md.  263:  St. 
Paul  Union  Depot  Co.  v.  St.  Paul. 
30  ^linn.  359,  15  N.  W.  684;  Sixth 
Avenue  R.  Co.  v.  Kerr.  45  Barb. 
138.  afllrmed  72  N.  Y.  330;  Iron  R. 
Co.  V.  Ironton,  19  Ohio  St.  299. 
This  rule,  it  is  said,  is  subject  to 
the  limitation  that  property  can 
only  be  taken  from  the  hands  of 
one  individual  or  corporation  and 
placed  in  the  hands  of  another  un- 
der the  power  of  eminent  domain 
to  serve  a  different  public  use.  And 
whether  the  new  use  is  different 
from  the  present  one  is  a  judicial 
question  for  the  courts  to  decide. 
Lake  Shore  &c.  R.  Co.  v.  Chicago 
&c.  R.  Co..  100  III.  21.  Taking  the 
property  of  one  man  and  giving  it 
to  another,  is  not  making  a  law, 
or  rule  of  action;  it  is  not  legis- 
lation, it  is  simply  robbery.  Cos- 
ter V.  Tide  Water  Co.,  18  N.  J.  Eq. 
54,  63.  In  Googins  v.  Boston  &c. 
R.  Co.,  155  Mass.  505,  30  N.  E.  71, 
it  was  held  competent  for  the  leg- 
islature to  authorize  one  railroad 
company  to  appropriate  the  land 
on  which  another  railroad  was 
constructed.  And  that,  by  such 
authority  tlie  second  company 
could  take  the  land  absolutelv.  and 


not  merely  the  rights  of  the  first 
company  therein.  Compare  also 
Ex  parte  Montgomery  Light  &c. 
Co.,  187  Ala.  376,  65  So.  403. 

**-  Hyde  Park  v.  Oakwoods  Cem- 
etery Assn.,  119  111.  141,  7  N.  E. 
627:  White  v.  South  Shore  R.  Co., 
6  Cush.  (Mass.)  412;  Hazen  v. 
Essex  Co.,  12  Cush.  (Mass.)  475; 
West  Boston  Bridge  Co.  v.  County 
Comrs.,  10  Pick.  (Mass.)  270:  Bos- 
ton Water  Power  Co.  v.  Boston 
.1-c.  R.  Co..  23  Pick.  (Mass.)  360; 
New  York  Central  &c.  R.  Co.  v. 
Metropolitan  Gas  Light  Co.,  63  N. 
Y.  326;  Brooklyn.  In  re,  143  N.  Y. 
596.  38  N.  E.  983.  26  L.  R.  A.  270; 
Opening  Twenty-second  Street,  In 
re.  15  Phiia.  409,  affirmed  102  Pa. 
St.  108. 

s-  Enfield  Toll  Bridge  Co.  v. 
Hartford  &c.  R.  Co..  17  Conn.  454, 
44  Am.  Dec.  556,  and  note;  Ken- 
ton County  Court  v.  Bank  Lick 
Turnpike  Co..  10  Bush  (Ky.)  529; 
Board  of  Supervisors  v.  McEadden, 
57  Miss.  618:  Barber  v.  Andover. 
8  N.  H.  398:  Smith  v.  Conway.  17 
N.  H.  586:  State  v.  Newark.  28  N. 
J.  L.  529  (canal  can  not  be  con- 
demned): State  V.  Montclair  R. 
Co.,  35  N.  J.  L.  328.  The  proprie- 
tary right  which  a  street  railway 
has  in  its  track  is  subject  to  the 
right  of  eminent  domain.  Canal 
&c.  R.  Co.  v.  Crescent  City  R.  Co., 
41  La.  Ann.  561.  6  So.  849.  A  con- 
tract by  a  railroad  company  giving 
a  street  railway  the  exclusive  right 
to  build  its  road  over  its  land  to  its 
depot,  is  not  a  monopoly,  but  an 
easement  granted  bv  the  owner  of 


§1210 


KAILKUADS 


36 


or  a  quasi  public  corporation  not  used  or  needed  for  the  transac- 
tion of  its  business,^*  or  in  which  the  necessary  easement  can  l)e 
taken  without  detriment  to  the  pubHc  interests.^''     General  au- 


the  fee,  and  can  be  taken  for  pub- 
lic use  by  due  process  of  law.  Fort 
Worth  St.  R.  Co.  v.  Queen  City  R. 
Co.,  71  Tex.  165,  9  S.  W.  94.  The 
statute  of  Virginia,  which  provides 
that  telegraph  companies  may  con- 
struct their  lines  "along  and  par- 
allel to  any  of  the  railroads  of  the 
state,"  does  not  authorize  the  con- 
demnation of  a  right  of  way  by  a 
telegraph  company  along  and  upon 
the  right  of  way  of  a  railroad  com- 
pany. Lewis,  P.,  and  Hinton,  J., 
dissenting.  Postal  Telegraph  Ca- 
ble Co.  V.  Norfolk  &c.  Co.,  88  Va. 
920,  14  S.  E.  803. 

S4  Oregon  &c.  R.  Co.  v.  Baily,  3 
Ore.    164;    Peoria    &c.    R.    Co.    v. 
Peoria  &c.  R.  Co.,  66  111.  174;  Iron 
R.  Co.  V.  Ironton,  19  Ohio  St.  299; 
New  York  Central  &c.  R.  Co.,  Mat- 
ter of,  V.  Metropolitan  &c.  Co.,  63 
N.  Y.  326;  Atchison  &c.  R.  Co.  v. 
Kansas   City  &c.  R.  Co.,  67  Kans. 
569,  70  Pac.  939.     "Lands  held  by 
a  corporation  or  by  a  public  body, 
but  not  used  for  or  necessary  to  a 
public    purpose,    but    simply    as    a 
proprietor  and  for  any  private  pur- 
pose  to   which   they   may  be    law- 
fully  applied,   may  be   taken   as   if 
held  by  an  individual  owner.     The 
property  rights  of  a  corporation  in 
lands  not  held  in  trust  for  a  pub- 
lic  use,   are   no    more    sacred   than 
those  of  individual  proprietors.  The 
law  only  protects  from  condemna- 
tion for  public  purposes  lands  ac- 
tually held  by  authority  of  the  sov- 
ereign  power   for   or   necessary  to 
some  public  purpose  or  use.   Lands 


held  upon  a  special  trust  for  a 
public  use  can  not  be  appropriated 
til  another  public  use  v%ithout  spe- 
cial authority  from  the  legislature." 
-Matter  of  Rochester  Water  Comrs., 
66  N.  Y.  413;  Cincinnati  &c.  R. 
Co.  V.  Belle  Centre,  48  Ohio  St. 
nZ,  27  N.  E.  464. 

85  Rochester  Water  Works,  Mat- 
ter of.  66  N.  Y.  413;  Morris  R.  Co. 
V.  Central  R.  Co.,  31   X.  J.  L.  205; 
New    York     Central    &c.     R,    Co., 
-Matter   of   v.    Metropolitan    &c.   R. 
Co.,  63  N.  Y.  326.    When  the  latter 
case  was  first  before  the   supreme 
court  sub  nom   New   York  Central 
R.   Co.  V.    Metropolitan  Gas   Light 
Co..  5  Hun   (N.  Y.)  201,  the  court 
said:    "The  courts  will  act  circum- 
spectly and  only  on   strong  neces- 
sity, in  allowing  property  devoted 
to   uses   of   great  public  benefit  to 
be  taken;  but  where  such  necessity 
is  shown  to  exist  the  power  to  act 
seems  entirely  clear.     In  this  case 
the  property  sought  to  be  taken  is 
not.  and   never  has  been,  in   actual 
use    for    the    purposes    of    the    gas 
company.      Doubtless,    the    use    of 
their  lands  in  the  future,  when  the 
appellants   come   to   need   them,   as 
they   anticipate   will  be  more  con- 
venient     without      the      additional 
tracks    of    the    railroad    than    with 
them:  but  the  railroad  now  crosses 
their  land  with  several  tracks,  and 
the  addition  of  two  or  three  more, 
on      land     adjoining     the     present 
tracks  does  not  strike  us  as  neces- 
sarily   destructive    of    the    uses    to 
which   the   appellants   wish   to   put 


731 


APPROI'HIATION     rN'DFR    THK    KMfXKXr    DOMAIN'  §  ]  210 


thority  to  condemn  is  usually  deemed  sufficient  in  such  cases;®" 
but  where  the  proi)erty  is  already  devoted  to  the  public  use.  and 


their  lands.  The  injury  can  not  be, 
as  it  seems  to  us,  so  greatly  en- 
hanced beyond  what  is  already 
done,  that  their  remaining  land 
becomes  useless  to  them.  It  is  to 
be  presumed  that  the)'-  will  be  pro- 
tected to  the  extent  that  the  act 
provides  for,  in  their  facilities  of 
crossing  and  enjoying  access  to 
and  from  the  divided  parcel  of 
their  land,  by  the  commissioners, 
or  by  the  court,  on  the  coming  in 
of  their  report.  And  this,  we  think, 
is  all,  under  the  circumstances  they 
are  entitled  to  claim." 

86  New  York  &c.  R.  Co.  v.  Bos- 
ton &c.  R.  Co.,  36  Conn.  196;  Bos- 
ton Water  &c.  Co.  v.  Boston  &c. 
R.  Co.,  23  Pick.  (Mass.)  360;  St. 
Louis  &c.  R.  Co.  V.  Hannibal  &c. 
Co.,  125  Mo.  82,  28  S.  W.  483;  New 
York  &c.  R.  Co.,  Matter  of,  99 
N.  Y.  12,  1  N.  E.  27:  North  Caro- 
lina &c.  R.  Co.  V.  Carolina  Cent. 
R.  Co.,  83  N.  Car.  489;  Pittsburg 
&c.  R.  Co.  V.  Southwest  &c.  R. 
Co.,  77  Pa.  St.  173;  Baltimore  &c. 
R.  Co.  V.  Pittsburg  &c.  R.  Co.,  17 
W.  Va.  812,  852;  Wheeling  Bridge 
&c.  V.  Wheeling  &c.  Co.,  34  W. 
Va.  155,  11  S.  E.  1009,  and  authori- 
ties cited  in  last  two  notes,  supra. 
See  also  Atlanta  &c.  R.  Co.  v. 
Atlanta  &c.  R.  Co.,  124  Ga.  125, 
52  S.  E.  320,  322,  where  it  is  said: 
"Where  property  is  already  dedi- 
cated to  a  public  use,  it  may,  un- 
der the  exercise  of  the  power  of 
eminent  domain,  be  subjected  to 
another  use,  but  with  the  restric- 
tion that  it  can  not  generally  be  so 
subjected   if  the   second   use  either 


destro3's  or  seriously  impairs  the 
first  use.  A  condemnation  having 
such  an  effect  can  only  be  had 
when  there  is  expressed,  unequivo- 
cal legislative  authority  permitting 
it.  A  general  legislative  authority 
to  condemn  will  not  be  construed 
to  give  power  to  take,  when  such 
taking  will  be  inconsistent  with  a 
prior  public  use  to  which  the  prop- 
erty has  been  dedicated.  Under  a 
general  power  to  condemn  prop- 
crt}^  a  railroad  company  can  not 
condemn  the  property  of  another 
oompanj\  already  used  by  it  for 
railroad  purposes,  when  the  effect 
of  such  condemnation  would  be  to 
destroy  the  use  of  the  property  by 
the  former  company,  or  to  seri- 
ously impair  the  rights  of  the  for- 
mer company  therein.  City  Coun- 
cil V.  Georgia  R.  Co.,  98  Ga.  161, 
26  S.  E.  499.  Under  a  general 
power  to  condemn,  one  railroad 
company  can  not  acquire  property 
of  another  railroad  company,  al- 
ready set  apart  for  use  as  a  depot 
or  as  a  yard  for  the  drilling  of 
cars,  when  it  is  manifest  that  the 
appropriation  by  the  second  com- 
pany would  be  either  to  destroy 
the  rights  of  the  first  company,  or 
seriously  irnpair  the  first  company 
in  the  use  of  its  property  for  the 
purpose  of  which  it  was  set  apart. 
Where  a  company  has  acquired 
property  for  -the  purpose  of  en- 
larging its  depot,  or  its  yard,  or 
its  terminal  facilities,  and  is  pres- 
ently proceeding  to  adapt  such 
newlj'-acquired  property  to  the  use 
for    which    it    was    acquired,    such 


§  1211 


RAILROADS 


738 


is  reasonably  necessary  to  enable  the  corporation  to  perform  all 
its  duties  to  the  public,  general  authority  is  not,  ordinarily,  suffi- 
cient to  justify  its  taking  for  an  inconsistent  use.^" 

§  1211    (965).     Property  of  state  or  United  States. — Property 
held  bv  the  state, ^*  or  ])v  the  United  States,**"  for  sale  or  settle- 


newly-acquired  property  would,  un- 
der such  circumstances,  as  to  the 
rights  of  another  company  to  con- 
demn, be  fully  safeguarded  by  the 
same  restrictions  as  if  the  plans 
which  were  actually  in  progress 
had  become  completed  when  the 
condemnation  proceedings  were 
instituted.  But  where  a  railroad 
company,  in  anticipation  of  its  fu- 
ture needs,  acquires  property,  and 
it  is  not  in  use,  and  not  presently 
needed,  and  it  is  merely  held  to  be 
used  in  the  future  at  such  times 
as  the  needs  of  the  company  may 
require  it,  the  right  of  condemna- 
tion exists  in  favor  of  another 
company,  which  can  only  be  de- 
feated by  showing  that  the  con- 
demnation would  interfere  with  a 
present  necessity  of  the  company 
w-hich  owned  the  property." 

87  Lake  Shore  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  8  Fed.  858:  Arm- 
iston  &c.  R.  Co.  V.  Jacksonville 
&c.  R.  Co.,  82  Ala.  297,  2  So.  710: 
Evergreen  Cemetery  Assn.  v.  New 
Haven,  43  Conn.  234:  Baltimore 
&c.  R.  Co.  V.  North,  103  Ind.  486: 
Housatonic  R.  Co.  v.  Lee  &c.  R. 
Co.,  118  Mass.  391;  Providence  &c. 
R.  Co.  v.  Norwich  &c.  R.  Co.,  138 
Mass.  277,  279:  Suburban  R.  &c. 
Co.  V.  New  York,  128  K.  Y.  510, 
28  N.  E.  525:  Pitt>.  Junction  R. 
Co..  Appeal  of,  122  Pa.  St.  511,  6 
Atl.  564,  9  Am.  St.  128:  Dublin  &c. 
R.  Co.  V.  Navan  &c.  R.  Co.,  5  Tr. 
R.  Eq.  393.     See  also  post.  §  121.1 


The  authority  must  be  expressly 
granted  or  implied  from  "a  neces- 
sity so  absolute,"  it  is  said,  "that, 
without  it  the  grant  itself  will  be 
defeated."  Sharon  R.  Co.,  Appeal 
of,  122  I'a.  St.  533,  17  Atl.  234,  9 
Am.  St.  133  and  note;  Springfield 
V.  Connecticut  &c.  R.  Co.,  4  Cush. 
(Mass.)  63;  Milwaukee  &c.  R.  Co. 
V.  Faribault,  23  Minn.  167;  Hick- 
ok  V.  Hine,  23  Ohio  St.  523,  13 
Am.  Rep.  255;  Pennsylvania  R. 
Co.'s  Appeal,  93  Pa.  St.  150:  Barre 
R.  Co.  V.  Montpelier  &c.  R.  Co., 
61  Vt.  1,  17  Atl.  923,  15  Am.  St. 
877,  4  L.  R.  A.  785  and  note. 

ss  See  Indiana  Central  R.  Co.  v. 
State,  3  Ind.  421.  Most  of  the 
states  in  which  public  lands  are 
still  held  for  sale  provide  by  stat- 
ute for  the  assessment  of  damages 
for  lands  of  the  state  taken  for 
railroad  uses.  See  also  Burbank 
V.  Fay,  65  N.  Y.  57;  New  York  &c. 
R.  Co.,  In  re,  29  Hun  (N.  Y.)  269: 
New  York  &c.  R.  Co.,  In  re,  11 
N.  Y.  248;  Hobart  v.  Ford,  6  Nev. 
11\  Benson  v.  Mayor,  10  Barb.  (N. 
Y.)  223.  But  in  some  states  there 
is  a  prohibition  against  taking 
state  property  under  ordinary  cir- 
cumstances, and  a  general  statute 
may  not  include  state  lands.  See 
Seattle  &c.  R.  Co.  v.  State,  7  Wash. 
150,  34  Pac.  551,  22  L.  R.  A.  217, 
38  \m.  St.  866  (tide  lands'). 

8»  United  States  v.  Railroad 
Bridge    Co.,   6   McL.    (U.    S.)    517; 


739 


APPKOPKIATIOX    UNDER    THE    EMINENT    DOMAIN 


§1211 


nu-nt,  iiKiv  be  taken  for  railroad  purposes,  but  not  that  devoted 
to  particular  uses  of  the  g-overnment.°"  In  Indiana  it  has  been 
held,  erroneously,  as  we  are  inclined  to  think,  that  where  the 
icg-islature  authorizes  a  company  to  construct  its  road  between 
two  (lesi£,mate(l  points  the  company  has  a  rig-ht  to  take  any  land 
of  the  state  between  such  points,  on  the  authorized  line,  which 
may  be  necessary  for  its  purpose,  and  the  court  refused  to  enjoin 
a  company  which  had  located  its  road  across  a  portion  of  the 
land  which  had  been  purchased  by  the  state  for  its  institution 
for  educating  the  deaf  and  dumb.^^  In  Illinois,  however,  it  has 
been  held  that  a  charter  giving  authority  "to  enter  upon,  take 
possession  of,  and  use  any  lands,  streams,  and  materials  of  every 
kind,"  and  granting  to  the  company  "all  such  lands,  materials 
and  privileges  belonging  to  the  state,"  did  not  give  such  company 
a  right  to  take  land  owned  by  the  state  as  a  site  for  its  institution 
for  the  education  of  the  blind.^=^  It  is  said  that,  "if  it  is  necessary 
that  the  United  States  government  should  have  an  eminent 
domain  still  higher  than  that  of  the  state,  in  order  that  it  may 
fully  carry  out  the  objects  and  purposes  of  the  constitution,  then 


Union  Pacific  R.  Co.  v.  Burlington 
&c.  R.  Co.,  3  Fed.  106;  Grinter  v. 
Kansas  Pac.  R.  Co.,  23  Kans.  642; 
Hendricks  v.  Johnson,  6  Porter 
(Ala.)  472.  See  also  Flint  &c. 
R.  Co.  V.  Gordon,  41  Mich.  420,  2 
N.  W.  648;  Texas  &c.  R.  Co.  v. 
Kirk,  115  U.  S.  12,  5  Sup.  Ct.  1113. 
29  L.  ed.  323. 

90  United  States  v.  Ames,  1  W. 
&  M.  (U.  S.)  76;  United  States  v. 
Chicago,  7  How.  (U.  S.)  185,  12 
L.  ed.  660;  Fort  Leavenworth  R. 
Co.  V.  Lowe,  114  U.  S.  525,  5  Sup. 
Ct.  995.  29  L.  ed.  264.  See  also 
Edwardsville  v.  Madison  County, 
251  111.  265.  96  N.  E.  238,  11  L.  R. 
A.  (N.  S.)  101;  Barrett  v.  Palmer, 
135  N.  Y.  336,  17  L.  R.  A.  720  and 
note,  31  Am.  St.  835.  But  com- 
pare    United     States     v.     Railroad 


Bridge  Co.,  6  McL.  (U.  S.)   517. 

•'1  Indiana  Cent.  R.  Co.  v.  State, 
3  Ind.  421.  Most  of  the  cases  cited 
in  the  next  note  and  also  City  of 
Edwardsville  v.  Madison  Co.,  251 
111.  265.  96  N.  E.  238,  Zl  L.  R.  A. 
(N.  S.)  101,  and  most  of  the  cases 
there  cited  in  the  note  are  contrary 
in  cfifect  to  this  Indiana  decision. 

"2  St.  Louis  &c.  R.  Co.  V.  Illinois 
Inst,  for  the  Blind,  43  III.  303.  See 
also  Oregon  R.  Co.  v.  Portland, 
9  Ore.  231;  State  v.  Cincinnati  &c. 
R.  Co..  yi  Ohio  St.  157,  10  Am.  & 
Eng.  R.  Cas.  83;  Seattle  &c.  R.  Co. 
V.  State.  7  Wash.  150,  34  Pac.  551, 
22  L.  R.  A.  217.  38  Am.  St.  866; 
Atlanta  v.  Central  R.  Co.,  53  Ga. 
120:  Ninth  Ave..  Matter  of.  45  N. 
Y.  729. 


§  1212  RAILROADS  "-10 

it  has  it.""^  But,  as  a  general  rule,  "while  a  grant  from  one 
government  may  supersede  and  abridge  -franchises  and  rights 
held  at  the  will  of  the  grantor,  it  can  not  abridge  any  property 
rights  of  a  public  character,  created  by  the  authority  of  another 
sovereignty,"  and  property  of  a  state,  although  devoted  to  a 
public  use,  such  as  a  street  or  road,  "is  ])roperty  devoted  to. the 
public  uses  of  the  state,  and  it  is  not  within  the  competency  of 
the  national  government  to  dispossess  the  state  of  such  control 
and  use  or  appropriate  the  same  to  its  own  benefit,  or  the  benefit, 
ii  any,  of  its  corporations  or  grantees,  without  suitable  compen- 
sation to  the  state.""*  A  railroad  company  chartered  by  congress 
is  not  such  a  federal  agency  that  its  property  can  not  be  taken 
under  the  eminent  domain  of  a  state.''' 

§1212  (965a).  Tide  lands.— In  New  Jersey,  no  grant  or 
license  can  be  made  by  the  state  riparian  commissioners  to  any 
other  person  than  the  riparian  proprietor  of  lands  under  the  tidal 
rivers  of  the  state,  until  the  expiration  of  six  calendar  months 
after  the  riparian  proprietor  shall  have  been  personally  notified 
in  writing  by  the  applicant  for  such  grant  or  license,  and  the 
riparian  proprietor  shall  have  neglected  to  apply  for  such  grant 
or  license  and  failed  to  pay  the  price  fixed  by  the  commission- 
ers.^*^ The  interest  acquired  1)y  the  grantee  from  the  state  under 
this  provision  is  as  absolute  as  the  words  of  the  grant  import." 
And  it  has  been  held,  that  another  law  of  that  state,  providing 
that  no  railroad  shall  be  authorized  to  condemn  land  belonging 
to  the  state  docs  not  operate  to  prohibit  a  railroad  from  acquir- 
ing these  tide  lands  by  grant  after  the  owner  of  the  shore  has 
failed  to  take  the  same,  upon  the  expiration  of  six  months'  notice 
given  to  him  by  the  railroad,  nor  will  it  prevent  the  condemnation 

9-5  Stockton   V.   Baltimore    &c.    R.  R.  Co.  v.  Burlington  &c.  Co.,  1  Mc- 

Co.,    32    Fed.   9.      See   also    United  Cr.  (U.  S.)  452;  Union  Pac.  R.  Co. 

States  V.   Boston   Elevated   R.   Co.,  v.  Leavenworth  &c.  R.  Co.,  29  Fed. 

176    l-ed.  963.  728. 

9*  St.    Louis    V.    Western    Union  '■"'  Shanibcrg-    v.    l^oard    of    Ripa- 

Tel.  Co..  148  U.  S.  92,  13  Sup.  Ct.  rian  Comrs.,  72  N.  J.  132,  60  Atl.  43. 
485.  37  L.  ed.  380.  ■'•  Wondcliff  v.  New  Jersey  Shore 

95  North  Pac.  R.  Co.  v.  St.  Paul  l.mc    R.   Co.,  72   N.  J.   137,  60  Atl. 

&c.    Co.,    3    Fed.    702;    Union    Pac.  44. 


741  APPROPRIATIOK    INDEK    THE   EMINENT    DOMAIN  §  1213 

of  such  lauds  after  the  owner  of  the  shore  has  acquh-ed  the  same 
by  grant  from  the  riparian  commissioners."^ 

§  1213  (966).  Property  devoted  to  another  public  use — Gen- 
eral rule. — It  is  a  general  rule  that  lands  once  taken  for  a  public 
use,  or  dedicated  to  such  a  use  by  the  owner  can  not,  without  an 
express  grant  of  authority  by  the  legislature  for  that  purpose,  be 
appropriated  by  proceedings  in  invitum  to  a  different  public 
use.""  This  does  not  mean,  however,  that  where  there  is  an  ex- 
press grant  of  the  powxn-  the  particular  kind  of  property  or  use 
must  be  specifically  mentioned  in  the  statute,  for,  while  the  right 
to  exercise  the  power  over  such  property  is  not  usually  implied 
from  a  mere  general  grant,  at  least  where  the  uses  are  incon- 
sistent, there  are  cases  in  which  it  is  clearly  and  necessarily  im- 
plied from  the  language  and  evident  intent  or  purpose  of  the 
statute.  In  the  absence  of  some  such  statute  it  can  not  be  pre- 
sumed that  the  legislature  intended  to  authorize  the  seizure  of 
property  which  had  once  been  appropriated  to  the  public  use, 
and,  in  practice,  such  a  course  would  be  intolerable  if  one  corpo- 
ration after  another  could  seize  such  property  and  destroy  or 
materially  impair  the  earlier  use  without  any  higher  necessity 
for  the  second  or  subsequent  use.  One  court  has  thus  stated 
the  principle :  "While  it  may  be  true  that  the  enterprise  of 
])etitioner  is  public  in  its  nature,  the  public  necessity  which 
must  be  shown  to  exist  before  it  can  entirely  deprive  respondents 

^8  Shamberg  v.  New  Jersey  Shore  Lake    Shore    &c.    R.   Co.,    132    Ind. 

Line  R.  Co..  12  N.  J.   140,  60  Atl.  558,  32  N.  E.  215,  18  L.  R.  A.  367 

46.     See  also  generally   as   to  tide  and    note,    32   Am.    St.    277;    Terre 

lands,  New  York  Cent.  &c.  R.  Co.,  Haute    v.    Evansville    &c.    R.    Co., 

Matter  of,  11  N.   Y.  248;   State  v.  149  Ind.  174.  46  N.  E.  11,  Zl  L.  R. 

King    Co.,   31    Wash.    445.    11    Pac.  A.    189    (citing   te.xt) :    Indianapolis 

89,  66  L.  R.  A.  897  and  note.  &c.     R.     Co.     v.     Indianapolis     &c. 

99  Oregon  Short  Line   R.  Co..  v.  Transit   Co.,   Zi   Ind.    App.   ZZl ,   67 

Postal  Tel.  &c.   Co.,   Ill    Fed.  842;  N.  E.   1013;  State  v.  Montclair  &c. 

St.   Louis  &c.  R.  Co.  V.  Haller,  82  R.  Co.,  35  N.  J.  I,.  328  (city  reser- 

III.   208    (street);    Illinois   Cent.    R.  voir);    Boston    &    Albany    R.    Co., 

Co.  V.  Chicago  &c.  R.  Co..  122  III.  Matter    of.    53    N.    Y.    574    (park); 

473,    13   N.    E.    140;    Baltimore    &c.  Prospect   Park  &c.  R.  Co.  v.  Wil- 

R.  Co.  V.  North,  103  Ind.  486,  3  N.  liamson.  91  X.  Y.  552:  Little  Miami 

E.    144;    Ft.   Wayne   &c.    R.   Co.   v.  &c.  R.  Co.  v.  Dayton.  23  Ohio  St. 


§  1213  R.MLHOADS  742 

of  llu'ir  lands  is  the  necessity  ol  the  i)ul)lie  to  be  in  some  nirinner 
served   hv    tlie   i)rojected   enterprise,  and    not   the   necessities   of 
the  projector,  in  order  to  make  such  enterprise  a  success.     So 
far  as  the  authority  to  exercise  the  rii;ht  of  eminent  (h)main   for 
the  puldic  uses  is  concerned,  it  is  l)ased  upon  the  theory  tlial  the 
property  <^ranted  the  subject  is  upon  the  condition  that  it  may 
be  retaken  to  serve  the  necessities  of  the  sovereign  power,  and 
to  this  end  agencies  created  l)y  the  state,  the  i)urpose  of  which 
is  to  serve  the  public,  may  exercise  this  right.     Where,  however, 
hind  is  already  devoted  to  a  public  use,  it  would  be  wholly  un- 
reasonable to  permit  it  to  be  taken  for  another  public  use  which 
would  nullify  and  defeat  the  one  to  which  it  is  already  devoted, 
except  in  cases  where  the  overwhelming  necessities  of  the  public 
were  such   that,   in   order  to  serve   their   needs,  or   supply   their 
necessities,  the  taking  of  such  property  became  necessary.     Un- 
less so  limited,  no  rule  governing  the  rights  of  those  engaged  in 
conducting  a   business   for   the  benefit   of   the   public   could   be 
formulated  which  w^ould  afiford  them  protection  against  others 
desiring  to  also  engage  in  the  transaction  of  a  public  business. 
While  corporations  engaged  in  business  of  a  nature  which  re- 
quires them  to  serve  the  public  are  said  to  be  public  corpora- 
tions, they  are,  in  fact,  but  private  enterprises,  inaugurated  for 
the  benefit  of  their   stockholders;   and   if  one  such  corporation 
may  take  the  property  of  another  so  as  to  deprive  the  latter  of 
the  use  to  which  it  is  devoted,  except  public  necessity  demands 
such  taking,  there  would  be  no  reasonable  limit  to  the  conditions 
under  which  the  power  of  eminent  domain  might  be  exercised. 
Without  the  limitation  suggested,  the  most  absurd  result  could 

210:    Ilickok   v.    Hine.   23   Ohio   St.  cut  with  the  first,  and  tends  to  de- 

523.    13    Am.    Rep.    255    and    note;  prive   the   corporation    first   acquir- 

Petition  of  Providence  &c.  R.  Co..  in^  such   public  use  of  the  full  and 

17  R.  I.  324.  21  Atl.  965.     In  Lake  free    enjoyment    thereof.      So    held 

Eric  &c.  R.  Co.  v.  Board  of  Comrs.,  in    Pennsylvania    R.    Co.'s    Appeal, 

57    Ved.    945.    it    was    held    that    in  93    Pa.    St.    150;    and    Lake    Shore 

nWu)    the    rule    is    well    established  (Xrc.   R.   Co.  v.  Chicago  &c.  R.  Co., 

that     a     second     appropriation     of  100  111.  21.     See   also  ante,  §  1210. 

lands  formerly  appropriated  to  pub-  Elliott  Roads  and  Streets  (3rd  ed.), 

lie  use  can  not  be  made  when  the  §  245. 
second    appropriation    is    inconsist- 


743  APPROIMUATIOX    rXDER    THE    EMINENT    DOMAIN  §  1214 

follow.  The  second  inii^lil  lake  from  the  first,  others  take  from 
the  latter,  and  the  first  turn  ahout  and  retake,  anfl  thus  the  pro- 
cess g'o  on  ad  infinitum."' 

§  1214.  Where  right  to  take  property  already  devoted  to 
public  use  exists. — Authority  to  l)uild  a  railroad  across  streets, - 
canals.-'  railroad  tracks,'  or  street  railwa}-  tracks,'  lyin.Gf  between 
the  termini  of  a  proposed  road  is  necessarily  implied  from  a  grant 
of  authority  to  build  a  railroad  between  such  termini."  The 
same  is  true  as  to  na\  igable  waters  which   must  necessarily  be 

^  [Denver  Power  &c.  Co.  v.  Den-  Comrs..   118   Mass.   561;    Massachu- 

ver    &c.    R.    Co.,   30    Colo.   204,    69  setts  Central  R.  Co.  v.  Boston  &c. 

Pac.    568.      See    upon    the    general  R.    Co.,    121    Alass.    125;    Fitchburg 

subject,   cases    and   notes    in   2)7    L.  R.   Co.   v.   New   Haven   &c.   R.   Co.. 

R.    A.    (N.    S.)    104,    24    L.    R.    A.  1.34      Mass.      547;      Grand      Rapids 

(N.  S.)    1213.  42   L.   R.  A.   (N.   S.)  &c.    R.    Co.    v.    Grand    Rapids    &c. 

215.  44  L.  R.  A.  (N.  S.)  1204;  also  R.  Co.,  35  -Mich.  265,  24  Am.  Rep. 

Virginia    &c.    R.    Co.    v.    Seaboard  545  and  note;  Morris  &c.  R.  Co.  v. 

Air   Line   R.   Co.,   161   N.   Car.   531,  Central  .R.    Co.,    31    N.    J.    L.    205; 

78   S.   E.  68;   St.   Louis    &c.   R.  Co.  Lehigh  Valley  R.  Co.  v.  Dover  &c. 

V.  Tulsa.  213  Fed.  87.  R.  Co.,  43  N.  J.  L.  528;  Boston  &c. 

-  Lewis    V.    Germantown    &c.    R.  R.  Co..  :\latter  of.  79  N.  Y.  64.  69; 

Co.,    16    Phila.    (Pa.)    608;    Elliott  Lake   Shore  &c.   R.    Co.  v.   Cincin- 

Roads  and  Streets  (3rd  ed.),  §  248,  nati  &c.    R.   Co.,  30  Ohio   St.   604; 

quoted  in  Lake  Erie  &c.  R.  Co.  v.  South    Carolina    R.    Co.    v.    Colutn- 

Kokomo.    130    Ind.    224,    29    N.    E.  bia    &c.    R.    Co..    13    Rich.    Eq.    (S. 

780.  Car.)   339:   Baltimore  &c.  R.  Co.  v. 

■•*  Morris    Canal    Co.    v.    State,   24  Pittsburgh   &c.   R.   Co..   17  \V.   Va. 

N.  J.  L,  62.  812. 

*  Union  Pacific  R.  Co.  v.  lUniing-  •"'  Lynn  &c.  R.  Co.  v.  Boston  &c. 

ton   &c.   R.    Co.,   1    McCr.    (U.   S.)  R.  Co.,  114  Mass.  88.     See  Market 

452;  New  York  &c.  R.  Co.  v.  Bos-  St.    R.    Co.   v.    Central    R.    Co.,   51 

ton     &c.     R.     Co.,    36     Conn.     196;  Cal.  583. 

Bridgeport    v.    New    York    &c.    R.  "  But  such  implication  arises  on- 

Co.,  36  Conn.  255,  4  Am.   Rep.  63;  ly  when  requisite  to  the  enjoyment 

St.  Louis  &c.  R.  Co.  V.  Springfield  of   the    powers    expressly    granted. 

&c.  R.  Co.,  96  111.  274;  Lake  Shore  and    can    be    e.xtended    no    further 

&c.  R.   Co.  V.  Chicago  &c.  R.  Co.,  than  such  necessity  requires.  Hick- 

97   111.   506;   East  St.   Louis   &c.  R.  ok  v.  Hine.  23  Ohio  St.  523.  13  Am. 

Co.  v.  East  St.  Louis  Union" R.  Co..  Rep.    255    and    note;    Little    Miami 

108  111.  265;  Springfield  v.  Connecti-  &c.  R.  Co.  v.  Dayton.  23  Ohio  St. 

cut  &c.  R.  Co.,  4  Cush.  (Mass.)  6i:  510.      See    Buffalo.    Matter    of.    68 

Worcester   c^-c.    R.    Co.   v.    Railroad  N.    Y.   167.   175. 


§  1214 


RAILROADS 


744 


crossed  in  order  to  build  a  line  of  road  l)et\veen  the  points  named 
in  the  charter."  But  authority  to  bridge  a  navig-able  stream  will 
be  strictly  construed,  and  the  authority  conferred  or  necessarily 
implied  can  not  l)e  exceeded.''  And  a  general  authority  to  bridge 
a  navigable  stream  does  not  authorize  an  interference  with  navi- 
gation Avhich  can  reasonably  be  avoided  by  the  construction  of 
draws  or  otherwise.''  Neither  will  authority  to  build  a  railroad 
longitudinally  along  a  public  highway^"  or  the  right  of  wav  of 


"Union  Pacific  R.  Co.  v.  Hall, 
91  U.  S.  343,  12>  L.  ed.  428;  Hu-hes 
v.  Northern  Pac.  R.  Co.,  18  Fed. 
106;  People  v.  Potrero  &c.  R.  Co., 
(il  Cal.  166.  7  Pac.  445;  Springfield 
V.  Connecticut  &c.  R.  Co.,  4  Cush. 
(Mass.)  63;  Mohawk  Bridge  Co.  v. 
Utica  &c.  R.  Co..  6  Paige  (N.  Y.) 
554;  People  v.  Rensselaer  &c.  R. 
Co..  15  Wend.  (N.  Y.)  114.  See 
Smith  V.  Louisville  &c.  R.  Co.,  62 
Miss.  510;  Brown  v.  Preston,  38 
Conn.  219;  Weathersfield  v.  Hum- 
phy.  20  Conn.  218. 

s  Silver  v.  Missouri  Pac.  R.  Co., 
101  Mo.  79,  13  S.  W.  410;  Missouri 
River  Packet  Co.  v.  Hannibal  &c. 
R.  Co.,  79  Mo.  478;  Cape  Elizabeth 
V.  County  Comrs.,  64  Maine  456. 

oHickok  V.  Hine,  23  Ohio  St. 
523,  13  Am.  Rep.  255  and  note; 
Sweeney  v.  Chicago  &c.  R.  Co.,  60 
Wis.  60,  18  N.  W.  756.  A  general 
authority  to  build  a  railroad  be- 
tween two  points,  the  natural  and 
convenient  route  of  which  would 
pass  over  several  navigable  streams, 
authorizes  the  corporation  to  con- 
struct bridges  over  such  streams, 
in  a  manner  that  will  not  destroy 
the  navigation  of  them.  But  the 
power  must  be  exercised  with  a  due 
regard  to  the  privileges  of  others. 
Attorney-General  v.  Stevens,  1  N. 
J.  Eq.  369,  22  Am.  Dec.  526.  But 
the  right  of  a  railroad  company  to 


cdustrnct  a  liridge  at  any  particu- 
lar ])oint  on  a  navigable  river  lying 
in  its  course  is  subject  to  the  .iudg- 
mcnt  of  the  proper  court  as  to 
whether  it  is  being  constructed 
without  unnecessary  injury  to  the 
navigability  of  such  water,  upon 
the  complaint  of  any  one  specially 
injured  thereby,  or  likely  to  be  so 
injured.  Hughes  v.  Northern  Pac. 
R.  Co.,  18  Fed.  106,  13  Am.  &  Eng. 
R.   Cas.  157. 

1"  Kaiser  v.  St.  Paul  &c.  R.  Co., 
22  Minn.  149;  Springfield  v.  Con- 
necticut River  R.  Co.,  4  Cush. 
(Mass.)  63;  State  v.  Montclair  R. 
Co.,  35  N.  J.  L.  328;  Savannah  &c. 
R.  Co.  V.  Shiels,  ZZ  Ga.  601;  Elliott 
Roads  and  Streets  (3rd  ed.),  §  247. 
As  to  power  of  congress  and  re- 
quiring changes  in  bridges,  see 
United  States  v.  Union  Bridge  Co., 
143  Fed.  ZTl:  Willamette  Iron 
Bridge  Co.  v.  Hatch,  125  U.  S.  1, 
8  Sup.  Ct.  811,  31  L.  ed.  629;  Lake 
Shore  &c.  R.  Co.  v.  Ohio,  165  U. 
S.  365,  17  Sup.  Ct.  357,  41  L.  ed. 
747;  Monongahela  Nav.  Co.  v. 
United  States,  148  U.  S.  312,  334, 
13  Sup.  Ct.  622,  Z1  L.  ed.  463;  Unit- 
ed States  V.  Parkersburg  &c.  Co., 
134  I'ed.  969.  See  also  Kansas  City 
&c.  R.  Co.  V.  Wingul,  82  Miss.  223, 
2>Z  So.  965,  61  L.  R.  A.  578;  Floyd 
V.  Rome  St.  R.  Co.,  11  Ga.  614,  3 
S.  E.  3. 


745 


APPROPRIATION    CNDER    TliK    EMINENT    DOMAIN 


§1215 


another  railroad,"  be  implied  from  a  j^eneral  authority  to  build 
the  road  between  certain  points,  unless  it  is  absolutely  necessary 
to  g'ivc  effect  to  the  g'rant.'- 

§  1215.  Right  may  depend  on  whether  two  uses  can  coexist 
without  impairment. — ^\'here  the  power  to  condemn  is  conferred 
in  general  terms,  the  presumption  is  against  the  right  to  take 
property  which  is  already  devoted  to  a  public  use,  unless  both 
uses  may  stand  together  with  a  tolerable  interference  which  may 
be  compensated  for  by  damages  paid.^^     If  such  uses  are  not  in- 


11  California  Pac.  R.  Co.  v.  Cen- 
tral Pac.  R.  Co.,  47  Cal.  549;  At- 
lanta V.  Central  R.  Co.,  53  Ga.  120; 
Davis  V.  East  Tenn,  &c.  R.  Co.,  87 
Ga.  605,  13  S.  E.  567;  Crossley  v. 
O'Brien,  24  Ind.  325;  Ft.  Wayne 
V.  Lake  Shore  &c.  R.  Co.,  132  Ind. 
558,  32  N.  E.  215,  18  L.  R.  A.  367 
and  note,  32  Am.  St.  277;  Northern 
Cent.  R.  Co.  v.  Baltimore,  46  Md. 
425;  Housatonic  &c.  R.  Co.  v.  Lee 
&c.  R.  Co.,  118  Mass.  391;  Hanni- 
bal V.  Hannibal  &c.  R.  Co.,  49  Mo. 
480:  Albany  &c.  R.  Co.  v.  Brownell, 
24  N.  Y.  345;  Alexandria  &c.  R. 
Co.  V.  Alexander  &c.  R.  Co.,  75 
Va.  780,  40  Am.  Rep.  743  and  note. 
See  also  Gold  v.  Pittsburgh  &c.  R. 
Co.,  153  Ind.  232,  53  N.  E.  285; 
South  Dakota  Cent.  R.  Co.  v.  Chi- 
cago &c.  R.  Co.,  141  Fed.  578. 

12  Housatonic  &c.  R.  Co.  v.  Lee 
&c.  R.  Co..  118  Mass.  391;  Spring- 
field V.  Connecticut  River  R.  Co., 
4  Cush.  (Mass.)  63.  See  also  Port- 
land &c.  R.  Co.  V.  Portland,  181 
Fed.  632.  Where  land  has  been 
acquired  by  one  company  under 
the  right  of  eminent  domain,  it 
can  not,  in  the  absence  of  express 
or  necessarily  implied  statutory 
authority,  be  taken  by  another 
company,    to    whom    it    would    be 


coiu'cniciit,  l)ut  not  necessary, 
liarrc  R.  Co.  v.  Montpelier  &c.  R. 
Co.,  61  \'t.  1.17  Atl.  923.  4  L.  R.  A. 
785  and  note  15  Am.  St.  877.  The 
Alabama  Declaration  of  Rights, 
which  provides  that  the  general 
assembly  may  authorize  the  grant- 
ing of  the  right  of  way  by  one  per- 
son or  corporation  over  the  lands 
of  another,  upon  just  compensation 
being  made,  does  not  permit  the 
condemnation  of  land  in  the  actual 
use  of  one  railroad  company  for 
the  benefit  of  another,  unless  it  is 
reasonably  essential  to  the  con- 
struction of  the  second  road  to  its 
proposed  terminus  by  the  only 
practical  route.  But  the  taking  is 
essential  when,  the  public  conve- 
nience being  equally  served,  the 
financial  interests  of  the  second 
company  will  gain  more  thereby 
than  the  first  company  would  prob- 
ably be  injured.  Mobile  &  G.  R. 
Co.  V.  Alabama  Midland  Ry.  Co., 
87  Ala.  501,  6  So.  404. 

i-!  Buflfalo.  Matter  of.  68  N.  Y. 
167;  Chicago  &c.  R.  Co.  v.  Chicago 
cS:c.  R.  Co..  112  111.  589.  See  also 
Seymour  v.  Jeflfersonville  &c.  R. 
Co.,  126  Ind.  466.  467,  26  N.  E.  188. 
citing  Elliott  Roads  and  Streets. 
167,   168:   Baltimore   &c.   R.  Co.  v. 


§  1215 


RAILROADS 


746 


consistent  and  the  second  does  not  interfere  with  ov  iin])air  tlu- 
first,  general  authority  for  the  second  use  may  l)e  sufficient,^*  but 
if  they  can  not  coexist  without  materially  impairing  the  first  use, 
authority  to  take  for  the  second  use  can  not  be  implied  from  a 
general  grant  of  authority  to  condemn.^"'  The  general  rule  under 
this  head  has  been  thus  expressed  :  "Property  dedicated  to  a 
public  use  can  not  be  taken  for  another  public  use  under  the 
general  law  conferring  the  right  of  eminent  domain,  where  the 
second  use  will  destroy  or  injure  the  use  to  which  the  property 
is  already  devoted.     To  authorize  a  second  condemnation  of  such 


Pittsburgh  &c.  R.  Co.,  17  W.  Va. 
812;  Augusta  v.  Georgia  &c.  Co., 
98  Qa.  161.  26  S.  E.  499;  Boston 
&c.  R.  Co.  V.  Cambridge,  166  Mass. 
224.  44  N.  E.  140. 

1*  Boston  V.  Brookline,  156  Mass. 
172,  30  N.  E.  611.  See  also  Chica- 
go &c.  R.  Co.  V.  Starkweather,  97 
Iowa  159,  66  N.  W.  87,  31  L.  R.  A. 
183,  59  Am.  St.  404;  Bridgeport  v. 
New  York  &c.  R.  Co.,  36  Conn.  255. 
4  .Am.  Rep.  63. 

i"'  Lake  Erie  &c.  R.  Co.  v.  Bos- 
well,  137  Ind.  336.  36  N.  E.  1103; 
Cincinnati  &c.  R.  Co.  v.  Anderson. 
139  Ind.  490,  38  N.  E.  167,  47  Am. 
St.  285  and  authorities  there  cited; 
Milwaukee  &c.  R.  Co.  v.  Faribault, 
23  Minn.  167;  St.  Paul  &c.  R.  Co. 
V.  St.  Paul.  30  Minn.  359,  15  N.  W. 
684;  Hannibal  &C..R.  Co.  v.  Muder. 
49  Mo.  165;  New  Jersey  &c.  R.  Co. 
V.  Long  Branch  Comrs.,  39  N.  J. 
L.  28;  Paterson  &c.  R.  Co.  v.  Pat- 
crson,  72  N.  J.  L.  112.  60  Atl.  47; 
.A.lbany  &c.  R.  Co.  v.  Browncll,  24 
N.  Y.  345;  Prospect  Park  &c.  R. 
Co.  V.  Williamson,  91  N.  Y.  552; 
Winona  &c.  R.  Co.  v.  Watertown, 
4  S.  Dak.  323,  56  N.  W.  1077;  Rich- 
mond &c.  R.  Co.  V.  Johnston,  103 
Va.  456.  49  S.  E.  496.    But  see  Chi- 


cago &c.  R.  Co.  V.  Morrison,  195 
111.  271,  63  N.  E.  96;  Portland  R. 
&c.  Co.  V.  Portland.  181  Fed.  632, 
634  (citing  text) ,-  Terre  Haute  v. 
Evansville  &c.  R.  Co.,  149  Ind.  174, 
46  N.  E.  77,  37  L.  R.  A.  189;  Parks 
&c.  Comrs.  V.  Afichigan  Cent.  R. 
Co.,  90  Mich.  385,  51  N.  W.  447. 
See. also  numerous  cases  cited  in 
note  to  Southern  R.  Co.  v.  Mem- 
phis, 126  Tenn.  267,  148  S.  W.  662, 
in  Ann.  Cas.  1913E,  153.  163.  In 
most  of  these  cases  it  was  held 
that  a  street  could  not  be  extended 
through  depot  grounds  and  build- 
ings under  a  mere  general  grant 
of  power  to  condemn.  So,  it  is 
held  that  lands  in  use  by  one  com- 
pany for  its  road  can  not  be  taken 
by  another  without  legislative  au- 
thority. Louisiana  &c.  Ry.  Co.  v. 
Vicksburgh  &c  R.  Co.,  112  La. 
Ann.  915,  36  So.  803;  .\tchison  &c. 
Ry.  Co.  V.  Kansas  City  &c.  R.  Co., 
67  Kans.  569,  73  Pac.  899.  Sec  also 
Western  Union  Tel.  Co.  v.  Louis- 
ville 8zc.  R.  Co.,  183  Ind.  258.  108 
N.  E.  951;  Chicago,  I\T.  &  St.  P. 
Ry.  Co.  V.  Incorp.  Town  Lost  Na- 
tion, 237  Fed.  709  (city  can  not 
condemn  railroad  depot  for  street). 


747  API'IIOPKIATIDX    INDKK    TlIK   EMINENT    DOMAIN  §  12U! 

l)ropert>'  to  a  second  use  whicli  is  subversive  of  the  first,  there 
must  he  express  legislative  authority."^"  And  it  is  another  ex- 
pression of  the  principle  to  say :  The  general  rule  that  expresses 
legislative  authority  is  generally  requisite,  except  where  the  pro- 
posed appropriation  would  not  destroy  or  greatly  injure  the 
franchise,  or  render  it  difficult  to  prosecute  the  subject  of  the 
franchise,  when  a  general  grant  would  be  sufficient.  Land 
already  devoted  to  another  public  use  can  not  be  taken  under 
the  general  laws,  when  the  efifect  would  be  to  extinguish  a 
franchise.  If.  however,  the  taking  would  not  materially  injure 
the  prior  holder,  the  condemnation  may  be  sustained.^" 

§  1216  (967).  Franchises. — In  the  absence  of  an  enactment  in 
express  terms,  a  corporation  will  only  be  justified  in  condemning 
the  franchise  of  another  public  or  quasi  public  corporation,  where 
it  appears  by  necessary  implication  that  the  legislature  intended 
to  grant  it  the  power  to  do  so.  It  must  appear  from  the  statute 
that  the  legislature  recognized  the  franchise  as  private  property, 
and  provision  must  be  made  for  the  payment  of  just  and  reason- 
able compensation  to  the  owner,  for  a  grant  of  authority  to  take 
private  property  without  compensation  is  void.  If  the  grant  of 
power  to  take  property  rests  only  in  implication,  and  the  act 
which  is  claimed  to  confer  svich  power  contains  no  provisions  as 
to  compensating  the  owner  whose  rights  are  injuriously  affected, 
the  courts  will  generally  presume  that  it  was  not  the  intent  of 
the  legislature  to  exercise  the  right  of  eminent  domain,  but 
simply  to  confer  a  right  to  do  the  act,  or  exercise    the    power 

16  Oregon   Short   Line   R.    Co.  v.  &c.  R.  Co.  v.  Pittsburg  &c.  R.  Co., 

Postal    Tel.    Cable    Co.,    Ill    Fed.  17  W.  Va.  812-852.     See  also  West- 

842;    Steele    v.    Empsom,    142    Ind.  ern   Union  Tel.   Co.   v.    Pennsyiva- 

397-406,    41    N.    E.    822;    Baltimore  nia   R.   Co.,   120  Fed.  362,  affirmed 

&c.  R.  Co.  V.  Board  of  Comrs.  of  in  123  Fed.  33;  Chicago  &c.  R.  Co. 

Jackson  Co.,  156  Ind.  260,  58  N.  E.  v.  Morrison,  195  111.  271,  63  N.  E. 

837,   59    N.    E.   856;    Northwestern  96;  Atchison  &c.  R.  Co.  v.  Kansas 

Tel.  Co.  V.  Chicago  &c.  R.  Co.,  76  City  &c.   R.   Co..  67  Kans.  569.  73 

Minn.  334,  79  N.  W.  315-317;  Wi-  Pac.  899. 

nona  &c.  R.  Co.  v.  Watertown,  56  i'  Northwestern   Tel.   &c.    Co.    v. 

S.  Dak.  1077,  56  N.  W.  1077:  Sabine  Chicago  &c.  R.  Co..  76  Minn.  334, 

&c.  R.  Co.  V.  Gulf  &c.  R.  Co.,  92  79  X.  \V.  315. 
Tex.  162,  46  S.  W.  784;  Baltimore 


1216 


RAILROADS 


748 


given,  on  first  obtaining  the  consent  of  those  affected.^*  It  is 
well-settled,  however,  that  corporate  franchises  although  held 
and  enjoyed  under  a  charter  which  contains  no  reserved  power 
of  alteration  or  repeal,^®  may  be  taken  under  the  power  of 
eminent  domain. -°  The  only  question  is  as  to  the  authority  to 
exercise  the  power  in  the  particular  instance.  It  must  be  granted 
in  express  terms  or  by  necessary  implication.^^     The  entire  fran- 


cs Boston  &c.  R.  Co.  v.  Salem 
&c.  R.  Co.,  2  Gray  (Mass.)  1 ; 
Hamilton  Avenue,  Matter  of,  14 
P.arb.  (N.  Y.)  405;  Flatbush  Ave- 
nue, Matter  of,  1  Barb.  (N.  Y.) 
286.  See  also  Elkins  Electric  R. 
Co.  V.  Western  :\[d.  R.  Co.,  163 
Fed.  724. 

^^  West  River  Bridge  Co.  v.  Dix, 
6  How.  (U.  S.)  507,  532,  12  L.  ed. 
535,  affirming  16  Vt.  446:  Central 
Bridge  Co.  v.  Lowell,  4  Gray 
(Mass.)   474. 

20  Monongahela  Nav.  Co.  v. 
United  States.  148  U.  S.  312,  13 
Sup.  Ct.  622,  37  L.  ed.  463;  Enfield 
Toll  Brid.ge  Co.  v.  Hartford  &c.  R. 
Co..  17  Coim.  454,  44  Am.  Dec. 
556  and  note;  Lafayette  Plank  R. 
Co.  V.  New  Albany  &c.  R.  Co..  13 
Tnd.  90,  74  Am.  Dec.  246;  Canal 
&c.  St.  R.  Co.  V.  Crescent  City  R. 
Co.,  41  La.  Ann.  561,  6  So.  849; 
Boston  Water  Power  Co.  v.  Bos- 
ton &c.  R.  Co.,  23  Pick.  (Mass.) 
360:  Sunderland  Bridge  Case,  122 
Mass.  459;  Grand  Rapids  &c.  R. 
Co.  V.  Grand  Rapids  &c.  R.  Co., 
35  Mich.  265,  24  Am.  Rep.  545  and 
note;  Dunlap  v.  Toledo  &c.  R.  Co., 
50  Mich.  470,  15  N.  W.  555;  Crosby 
V.  Hanover,  36  N.  H.  404;  Stockton 
V.  Central  R.  Co.,  50  N.  J.  Eq.  52. 
24  Atl.  964.  17  L.  R.  A.  97:  Petition 
of  Ker.  Matter  of.  42  Barb.  (N.  Y.) 
119;   North   Carolina  &c.  R.  Co.  v. 


Carolina  Cent.  R.  Co..  83  N.  Car. 
489;  Lewis  v.  Germantown  &c.  R. 
Co..  16  Phila.  (Pa.)  621;  Towanda 
Bridge  Co.,  In  re,  91  Pa.  St.  216: 
Philadelphia  &c.  Co."s  Appeal.  102 
Pa.  St.  123,  20  Am.  &  Eng.  R.  Cas. 
1  and  note;  Red  River  Bridge  Co. 
y.  Clarksville,  1  Sneed  (Tenn.) 
176,  60  .Am.  Doc.  143:  .\rmington 
V.  Barnct,  15  Vt.  745.  40  Am.  Dec. 
705;  White  River  Turnpike  Co.  v. 
Vermont  Cent.  R.  Co..  21  Vt.  590: 
Brainard  v.  Missisquoi  R.  Co.,  48 
Vt.  107:  James  River  &c.  Co.  v. 
Thompson,  3  Grat.  (Va.)  270;  El- 
liott Roads  and  Streets  (3rd  ed.), 
§§  241,  242,  243;  8  Elliott  on  Con- 
tracts, §  2736;  ante,  §  1130.  See 
also  Cincinnati  v.  Louisville  &c.  R. 
Co.,  223  U.  S.  390.  32  Sup.  Ct.  267, 
56  L.  ed.  481;  State  v.  Suffield 
Bridge  Co.,  81  Conn.  56,  70  Atl. 
55;  New  York  Cent.  &c.  R.  Co.  v. 
BuflFalo,  200  N.  Y.  113,  93  N.  E. 
520;  Rutland  &c.  R.  Co.  v.  Claren- 
don Power  Co.,  86  Vt.  45,  83  Atl. 
332,  44  L.  R.  A.  (N.  S.)  1204; 
Kanaroha  Cent.  R.  Co.  v.  Brown, 
71  W.  Va.  738,  77  S.  E.  360.  But 
compare  Miller  v.  Cincinnati  &c. 
St.  R.  Co.,  43  Ind.  App.  540.  88 
N.   E.   102. 

21  Boston  &c.  R.  Co.,  Matter  of, 
53  N.  Y.  574;  Central  City  &c.  R. 
Co.  V.  Fort  Clark  &c.  R.  Co..  81 
111.    523.      "When    a     franchise    is 


749 


APPROPRTATIOX    TM>KI{    '11  IK 


;mim:.\'I'  domain' 


§  1217 


chise  may  be  appropriated  if  the  public  necessity  requires,--  but 
a  part  only  may  be  taken  if  that  is  all  that  is  required,  and  the 
corporation  can  not  compel  compensation  to  be  paid  to  it  for  the 
entire  franchise  if  part  of  it  remains  unimi)aircd.--'' 

§  1217   (968).     Exclusive  grants  and  franchises. — The  fact  that 
a  right  or  privilege  possessed  by  a  corporation  is  exclusive.-^  and 


granted  with  power  to  take  or 
acquire  property  for  public  use,  it 
is  a  fair  and  just  implication  that, 
where  large  sums  are  invested  in 
the  enterprise,  it  shall  not  be  de- 
stroyed by  another  company  armed 
with  power  to  condemn  for  exact- 
ly the  same  use  and  to  take  awaj' 
the  same  business  already  done  by 
the  older  company.  This  is  in- 
herently unjust,  and  is  bad  policy, 
as  tending  to  prevent  solid  and 
solvent  enterprises  in  the  state. 
Mobile  &c.  R.  Co.  v.  Alabama 
Midland  R.  Co..  87  Ala.  501,  520, 
6  So.  404,  407;  Ft.  Wayne  v.  Lake 
Shore  &c.  R.  Co.,  132  Ind.  558,  32 
N.  E.  215,  18  L.  R.  A.  367  and 
note,  32  Am.  St.  277;  Illinois  Cent. 
R.  Co.  V.  Chicago  &c.  R.  Co.,  122 
Til.  473,  13  N.  E.  140;  Postal  Tel. 
Cable  Co.  v.  Norfolk  &c.  R.  Co., 
88  Va.  920,  14  S.  E.  803;  Groflf  v. 
Bird-in-hand  Tpk.  Co.,  144  Pa.  St. 
150,  22  Atl.  834;  Davis  v.  East 
Tcnn.  &c.  R.  Co.,  87  Ga.  605,  13 
S.  E.  567;  Appeal  of  Pittsburg 
Junction  R.  Co.,  122  Pa.  St.  511, 
6  Atl.  564,  9  Am.  St.  128;  Appeal 
of  Sharon  R.  Co.,  122  Pa.  St.  533, 
17  Atl.  234,  9  Am.  St.  133;  Fidelity 
T.  &c.  Co.  V.  Mobile  St.  R.  Co.,  53 
Fed.  687;  Lake  Erie  &c.  Co.  v. 
Seneca  Co.,  57  Fed.  945;  Minne- 
apolis &c.  R.  Co.  v.  Minneapolis, 
R.    Co.,   61    Minn.   502,   63    N.   W. 


10.35:  St.  Louis  &c.  R.  Co.  v.  Han- 
nibal &c.  Co.,  125  Mo.  82,  28  S.  W. 
-!8.\  Cases  may  be  found  appar- 
ently holding  otherwise,  but,  where 
the  result  does  not  depend  on  spe- 
cial legislation,  such  cases  are  not 
sound  in  principle,  and  should  not 
be  followed."  Chattanooga  &c.  R. 
Co.  v.  Felton,  69  Fed.  273.  280. 
See  also  Moline  v.  Greene,  252  111. 
475.  96  N.  E.  911,  37  L.  R.  A.  (N. 
S.)   104. 

--  Crossley  v.  O'Brien,  24  Ind. 
325,  87  Am.  Dec.  329.  See  also 
Monongahela  Nav.  Co.  v.  United 
States,  148  U.  S.  312,  13  Sup.  Ct. 
622.  37  L.  ed.  463;  Philadelphia  &c. 
R..  Co.'s  Appeal,  120  Pa.  St.  90.  13 
Atl.  708. 

23  Elliott  Roads  and  Streets  Grd 
ed.),  §  242. 

~*  New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  115  U.  S.  650.  683, 
6  Sup.  Ct.  252.  29  L.  ed.  516;  New 
Orleans  &c.  R.  Co.  v.  Southern 
&c.  Co.,  53  Ala.  211;  Salem  &c. 
Co.  v.  Lyme,  18  Conn.  451;  West- 
ern L'nion  Tel.  Co.  v.  American 
Union  Tel.  Co..  65  Ga.  160.  38  Am. 
Rep.  781  and  note;  Metropolitan 
itc.  R.  Co.  V.  Chicago  &c.  R.  Co.. 
87  111.  317;  Hyde  Park  v.  Oak  wood 
&c.  Assn..  119  111.  141,  7  N.  E.  627; 
Baltimore  &c.  Tel.  Co.  v.  Mor- 
gan's Louisiana  &c.  R.  Co.,  37  La. 
Ann.  883;   Grand  Rapids  Street  R. 


§1217 


RAILROADS 


750 


that  the  legislature  has  attempted  to  bind  itself  by  contract  to 
])ermit  such  exclusive  right  to  be  exercised  for  a  certain  period  of 
time-"'  only  affects  its  value,  and  does  not  j^reNcnt  it  from  being 
subject  to  the  power  of  eminent  domain,  upon  the  payment  of 
just  compensation,  like  all  other  property.-*'  The  mere  grant  of 
a  right  to  maintain  a  toll-bridge,  ferry,  turnpike,  railroad,  or  tlie 
like,  at  a  certain  place  or  o\er  a  certain  route,  confers  no  ex- 
clusive franchise  to  conduct  such  business  in  the  \icinity,  and 
the  mere  diminution  of  business  caused  by  the  grant  of  a  similar 
right  to  a  competing  or  rival  company  is  not  a  taking  of  the 
property  or  franchise  of  the  former,  so  as  to  require  compensa- 
tion, nor  does  the  latter  grant  impair  the  ol)ligation  of  a  con- 
tract.-" But  where  an  exclusive  franchise  or  right  to  carry  on 
such  business  within  certain  limits  is  granted  to  one  company, 
the  grant  of  similar  rights  to  another  company  to  carry  on  a  like 


Co.  V.  West  Side  Street  R.  Co.,  48 
Mich.  433,  12  N.  W.  643;  Pisca- 
taqua  Bridge  Co.  v.  New  Hamp- 
shire Bridge,  7  N.  H.  35;  Philadel- 
phia &c.  R.  Co.'s  Appeal,  102  Pa. 
St.  123. 

25  Eastern  R.  Co.  v.  Boston  &c. 
R.  Co.,  Ill  Mass.  125,  15  Am.  Rep. 
13;  East  Hartford  v.  Hartford 
Bridge  Co.,  17  Conn.  79;  Pisca- 
taqua  Bridge  Co.  v.  New  Hamp- 
shire Bridge  Co.,  7  N.  H.  35. 

26  The  state  can  not  grant  away 
its  right  to  resume  possession  of 
property  when  it  is  needed  for 
public  use.  Alabama  &c.  R.  Co. 
V.  Kenney,  39  Ala.  307;  Eastern  R. 
Co.  V.  Boston  &c.  R.  Co.,  Ill 
Mass.  125,  15  Am.  Rep.  13. 

27  Charles  River  Bridge  v.  War- 
ren Bridge,  11  Pet.  (U.  S.)  420,  9 
L.  ed.  m\  Turnpike  Co.  v.  State, 
3  Wall.  (U.  S.)  210,  18  L.  ed.  180; 
Trustees  &c.  v.  Atlanta,  93  Ga. 
468,  21  S.  E.  74;  Illinois  &c.  R. 
Canal  Co.  v.  Chicago  &c.  R.  Co., 
14    111.    314;    Lafayette    &c.    Co.   v. 


New  Albany  &c.  R.  Co.,  13  Ind. 
90,  74  Am.  Dec.  246;  State  v. 
Noyes,  47  Maine  189;  Baltimore 
&c.  Turnp.  v.  Baltimore  &c.  R. 
Co.,  81  Md.  247,  31  Atl.  854;  Com- 
monwealth v.  Eastern  R.  Co.,  103 
Mass.  254,  4  Am.  Rep.  555;  New- 
York  &c.  R.  Co.  V.  Forty-second 
St.  R.  Co.,  50  Barb.  (N.  Y.)  285; 
Mohawk  Bridge  Co.  v.  Utica  &c. 
R.  Co.,  6  Paige  (N.  Y.)  554;  White 
River  Tpk.  Co.  v.  Vermont  Cent. 
R.  Co.,  21  Vt.  590;  Thorpe  v.  Rut- 
land &c.  R.  Co.,  27  Vt.  140.  62  Am. 
Dec.  625;  Tuckahoe  Canal  Co.  v. 
Tuckahoe  &c.  R.  Co.,  11  Leigh 
(Va.)  42,  36  Am.  Dec.  374.  But 
there  may,  perhaps,  be  an  exclu- 
sive grant  or  "physical  monopoly," 
in  such  a  case  of  the  land  actually 
used.  See  Citizens'  Coach  Co.  v. 
Camden  &c.  R.  Co.,  2>2>  N.  J.  Eq. 
267,  Zd  Am.  Rep.  542;  Charles 
River  Bridge  v.  Warren  Bridge, 
11  Pet.  (U.  S.)  420,  613,  9  L.  ed. 
n2>\  Union  Ferry  Co.,  Matter  of, 
98  N.  Y.  139;  Indianapolis  &c.  St. 


751 


APi'ROPRiATiox  rNni:i{  riii:  KAriNKXT  domain 


1218 


l>usincs.s  within  those  limits,  without  i)roviding  for  compensation 
to  the  former,  may  impair  the  obHgation  of  the  contract  between 
the  state  and  the  first  grantee  and  amovmt  to  the  taking  of  its 
property  or  franchise.-^  It  is,  otherwise,  however,  if,  as  is  some- 
times the  case,  it  is  found,  upon  a  strict  construction  of  the  grant 
of  the  exclusive  franchise  that  there  is  no  impairment  of  it  by 
the  second  grant  and  use,  notwithstanding  somewhat  similar 
privileges  may  have  been  given  to  each  company.-® 

§  1218  (968a).  Buildings  on  right  of  way. — Unless  specially 
exempted  l)y  statute,  it  is  no  obstacle  to  the  condemnation  of 
land  for  right  of  way  puri)oses,  that  there  are  buildings  on  such 
land.-'"  A  recent  writer  on  the  subject  says:  "The  term  'land' 
in  statutes  conferring  power  to  condemn,  is  to  be  taken  in  the 
legal  sense,  and  includes  both  the  soil  and  the  buildings  and  other 
structures  on  it,  and  any  and  all  interest  therein."'^     When  the 


R.   Co.  V.  Citizens'  St.  R.  Co.,   127 

Ind.  369,  389,  24  N.  E.  1054,  8  L. 
R.  A.  539  and  note;  Elliott  Roads 
and  Streets  (3rd  ed.),  §  943  et  seq. 
And  property  actually  taken  must 
be  paid  for.  Pittsburgh  &c.  R.  Co. 
V.  Jones,  111  Pa.  St.  204,  2  Atl.  410, 
56  Am.  Rep.  260;  Baltimore  &c. 
Co.  V.  Union  R.  Co.,  35  Md.  224, 
6  Am.  Rep.  397;  Fayette  &c.  Co. 
V.  New  Albany  &c.  R.  Co.,  13  Ind. 
90,  74  Am.  Dec.  246. 

-^  Bridge  Proprs.  v.  Hoboken 
Co..  1  Wall.  (U.  S.)  116,  17  L.  ed. 
571;  The  Binghamton  Bridge,  3 
Wall.  (U.  S.)  51,  18  L.  ed.  137; 
St.  Tammany  Water  Works  v.  New 
Orleans  Water  Works,  120  U.  S. 
64,  7  Sup.  Ct.  405.  30  L.  ed.  563; 
California  &c.  Tel.  Co.  v.  Alta. 
c<tc.  Tel.  Co..  22  Cal.  398;  Enfield 
Toll  Bridge  Co.  v.  Hartford  &c. 
R.  Co..  17  Conn.  40.  42  Am.  Dec. 
716:  St.  T.ouis  &c.  R.  Co.  v.  North- 
western   &c.    R.    Co.,    69    Mo.    65; 


Piscataqua  Bridge  v.  New  Hamp- 
shire Bridge,  7  N.  H.  35;  Raritan 
&c.  R.  Co.  V.  Delaware  &c.  Co., 
18  N.  J.  Eq.  546;  Aikin  v.  Western 
R.  Co.,  20  N.  Y.  370;  Regina  v. 
Cambrian  R.  Co.,  L.  R.  6  Q.  B. 
d22. 

-^  Richmond  &c.  R.  Co.  v.  Louisa 
R.  Co.,  13  How.  (U.  S.)  71,  14  L. 
ed.  55  (exclusive  franchise  to  carry 
passengers  not  impaired  by  carry- 
ing freight);  Bridge  Proprs.  v.  Ho- 
boken, 1  Wall.  (U.  S.)  116,  17  L. 
ed.  571  (exclusive  franchise  for 
toll-bridge  not  impaired  by  rail- 
road bridge);  Lake  v.  Virginia  &c. 
R.  Co.,  7  Nev.  294;  Thompson  v. 
New  York  &c.  R.  Co..  3  Sandf.  Ch. 
(N.  Y.)  625;  Philadelphia  &c.  R. 
Co.'s  Appeal.  102  Pa.  St.  123. 

30  Pierce  v.  Somersworth,  10  N. 
H.  369. 

31  See  Brocket  v.  Ohio  &c.  R. 
Co..  14  Pa.  St.  241,  53  Am.  Dec. 
534. 


§  1219  RAILROADS  752 

l.'ind  is  condemned  the  condemnation  usually  carries  with  it  all 
the  erections  on  it.  There  is  a  presumption  that  the  award  oi 
the  appraisers  includes  the  value  of  the  buildings  on  the  right  of 
■way,  and  this  presumption  is  particularly  strong  in  cases  where 
the  land-owner  fails  to  appeal,  or  take  other  steps  to  review  the 
action  of  the  appraisers.^-  In  a  recent  case  it  w^as  held  that  the 
facts,  if  true,  that  a  railroad  only  acquires  an  easement  in  the 
land  condemned,  and  that  a  dwelling-house  of  a  property  owner 
thereon  did  not  pass  to  the  railroad  company  by  virtue  of  the 
condemnation,  but  remained  in  the  former  owner,  and  that  the 
appraisers  made  their  award  without  reference  to  the  value  of 
the  building,  on  the  theory  that  it  did  not  pass  to  the  railroad 
company,  did  not  give  the  property  owner  a  right  to  go  on  the 
land  and  remove  the  building.^^  But  the  foregoing  vie^v  is  not 
everywhere  recognized.  In  North  Carolina  the  courts  hold,  that 
the  railroad  company  acquires  only  an  easement  in  the  land  con- 
demned, with  the  right  to  actual  possession  of  so  much  only 
thereof  as  is  necessary  for  the  operation  of  the  railroad  and  to 
protect  it  against  contingent  damages,  and  the  conclusion  was 
reached  that  a  house  situated  on  the  right  of  way  at  the  time  of 
the  condemnation  proceedings  did  not  become  the  absolute 
p-roperty  of  the  railroad  company."* 

§  1219  (969).  Exempt  property. — Statutes  sometimes  prohibit 
the  taking  of  particular  kinds  of  property  for  railroad  purposes, 
such  as  dwelling-houses, ■'■'^  or  the  yard,  kitchen  or  garden  adjoin- 

22  Stauffer  v.  Cincinnati  &c.  R.  knowledge  that  the  property  would 
Co.,  33  Ind.  App.  356,  70  N.  E.  543.  he  taken,  notes  in  5  L.  R.  A.  (N, 
•-■5  Stauffer  v.  Cincinnati  &c.  R.  S.)  922,  36  L.  R.  A.  (N.  S.)  273-278. 
Co.,  33  Ind.  App.  356,  70  N.  E.  543.  ^3  The  Pennsylvania  statute  pro- 
s'* Shields  V.  Norfolk  &c.  R.  Co.,  hihiting  the  location  of  a  railroad 
129  N.  Car.  1,  39  S.  E.  582;  citing  through  any  dwelling-house  in  the 
Raleigh  &c.  R.  Co.  v.  Sturgeon,  fKcupancy  of  the  owner,  without 
120  N.  Car.  225,  26  S.  E.  779;  Blue  his  consent,  is  not  to  be  construed 
v.  Aberdeen  &c.  R.  Co.,  117  N.  as  prohibiting  the  occupation  of 
Car.  644,  23  S.  E.  275.  And  see  grounds  which  are  merely  orna- 
Raleigh  &c.  R.  Co.  v.  Mecklenburg  mental  or  pleasant  as  surround- 
Mfg.  Co.,  166  N.  Car.  168,  82  S.  E.  ings.  Lyle  v.  McKeesport  &c.  R. 
5.  See,  however,  where  improve-  Co..  131  Pa.  437,  18  Atl.  1111,  25 
ments    are    made    after    notice    or  W.  N.  C.  228.     But  see  as  to  yard 


753 


Al'J'ROI'KIATIOX    UNDER    THE   EMINENT   DOMAIN 


§1219 


ing-,  or  cenu'tcrics  or  churches, ■•''  without  the  consent  of  the  own- 
ers.    Proceedings  in  viohition  of  such  a  statute  are  said   to  be 


or  cnrtilajje,  Swift's  Appeal,  111 
Pa.  St.  516.  2  Atl.  539.  Dwelling 
house  must  have  been  erected  in 
good  faith.  Hagner  v.  Pennsyl- 
vania &c.  R.  Co.,  154  Pa.  St.  475, 
25  Atl.  1082;  Morris  v.  Winchester 
&c.  R.  Co.,  4  Bush  (Ky.)  448.  The 
right  of  a  railway  company  to  con- 
demn buildings  not  exempted  by 
statute  and  situated  on  real  estate 
necessary  for  its  use  is  an  incident 
to  the  right  to  condemn  the  land. 
Forney  v.  Fremont  &c.  R.  Co.,  23 
Nebr.  465,  36  N.  W.  806;  Wells  v. 
Somerset  &c.  R.  Co.,  47  Maine 
345.  And  see  to  the  efifect  that 
there  can  be  no  irrevocable  ex- 
emption. Boston  &c.  R.  Co.  v. 
York  County,  79  Maine  386,  10 
Atl.  113;  Peru  v.  Gleason,  91  Ind. 
566;  Butchers'  Union  &c.  Co.  v. 
Crescent  City  Live  Stock  &c.  Co., 
Ill  U.  S.  746,  4  Sup.  Ct.  652,  28 
L.  ed.  585.  The  exemption  of  the 
"dwelling  house,  yard,  garden  and 
other  appurtenances"  in  the  Louis- 
iana statute  is  held  not  to  apply  to 
a  tenement  bought  and  held  merely 
as  an  investment  and  which  the 
owner  has  never  occupied  as  a 
dwelling.  Louisiana  &:c.  R.  Co.  v. 
Moseley,  117  La.  Ann.  313,  41  So. 
585. 

•''♦'  In  the  absence  of  such  a  stat- 
ute, the  property  of  a  church  is 
subject  to  condemnation  for  rail- 
road purposes.  Macon  Szc.  R.  Co. 
v.  Riggs,  87  Ga.  158,  13  S.  E.  312. 
In  Tennessee  a  railroad  company 
can  not  condemn  lands  set  apart 
for  cemeteries  though  such  lands 
are  not,   at  the   time,   improved  or 


used    for    burial    purposes.      ]\Iem- 
pliis    &o.     R.    Co.    v.     Forest    Hill 
Cemetery    Co.,    116    Tenn.    400,    94 
S.     \V.     69.       In     North     Carolina 
v.here   gardens   are   exempted   it   is 
held  that  where  lands  on  the  right 
of   waj'   arc   not    used   as   a   garden 
at  the  time  the  compnuy  completes 
its  road  thereon,  and  thus  acquires 
constructive      possession      of      the 
wliole    strip,    it    is    immaterial    that 
tlicy   are   used   for   a    garden   when 
the     company     subsequently    takes 
nctual   possession.     Dargan  v.   Car- 
olina Cent.  R.  Co.,  131  N.  Car.  623. 
42  S.  E.  979.     In  Pennsylvania  it  is 
held   that   land  belonging  to  a  toll 
bridge   corporation,  but  not   in  its 
actual     use.     or    necessary    to    the 
proper      or      convenient      exercise, 
present  or  prospective,  of  its  fran- 
chise,    ma}-    be    condemned     by    a 
railroad    company    for    its    tracks. 
Youghiogheny  Bridge  Co.  v.  Pitts- 
burg  &c.   R.   Co..   201    Pa.   457.   51 
-Atl.    115.      A    constitutional    provi- 
sion    that     any     association     shall 
have  the  right  to  construct  a  rail- 
road   between    any    points    in    the 
state  does  not.  by  implication,  re- 
peal an  existing  statute  exempting 
specified    kinds    of    property    from 
condemnation    by   railroad    compa- 
nies.    Weigold  V.  Pittsburg  &c.  R. 
Co.,  208  Pa.  81,   57  Atl.   188.     See 
also    Dryden    v.    Pittsburg    &c.    R. 
Co.,  208  Pa.  316,  57  Atl.  710;  Glaser 
V.    Glenwood   R.    Co..   208   Pa.   330, 
S7    .Atl.    1134    (statute    inapplicable 
where  railroad  company  authorized 
to  widen  right  of  way). 


§  1220  RAILROADS  754 

\'oid,'''  l)iit  the  benefit  of  the  statute  may  be  waived  by  the  owner 
to  be  aflfected  by  any  acts  which  amount  to  an  implied  consent.-'^ 
And  where  it  appears  that  the  railroad  company  can  efficiently 
locate  its  road  between  the  termini  without  invading  public 
grounds,  such  as  parks,  there  is  no  necessity  for  warranting  the 
condemnation  of  such  lands  and  an  application  to  do  so  should  be 
refused.""  A\  c  have  elsewhere  considered  the  subject  of  this 
section  in  treating  of  the  location  of  railroads,  and  it  is  sufficient, 
in  this  connection,  to  refer  to  what  has  already  been  written.*" 

§  1220  (970.)  Extent  of  taking. — Where  the  statute  giving  a 
corporation  the  right  to  e.xercise  the  power  of  eminent  domain 
prescribes  the  estate  and  exact  quantity  that  shall  be  taken,  no 
other  estate  or  amount  of  land  than  that  prescribed  can  be  seized 
under  such  authority."*^  But  where  the  statute  does  not  defin- 
itely declare  what  estate  or  what  quantity  of  property  shall  be 
taken,  the  general  rule  is  the  corporation  may  take  so  much,  and 
only  so  much,  as  is  reasonably  necessary  for  its  corporate 
purposes.*-  Thus,  where  only  part  of  a  lot  or  parcel  of  land  is' 
needed  for  a  railroad  or  a  street,  the  entire  lot  or  tract  can  not 
be  taken  for  such  purpose.  In  other  words,  no  more  can  be 
t?ken  than  is  needed  for  the  road  itself,  or  for  some  purpose 
legitimately  connected  with  its  use  and  enjoyment  by  the  public 
and  within  the  scope  of  the  statutory  grant  of  authority  to  con- 

""  Clapper,   Ex  parte,  3   Hill    (N.  X.  V.  139;   Currier  v.  Marietta  &c. 

Y.)    458;    Cnyler    v.    Rochester.    12  R.   Co.,   11   Ohio  St.  228;   Miller  v. 

Wend.    (N.   Y.)    165;    Extension   of  Windsor    Water    Co.,    148    Pa.    St. 

Second  Street,  23  Pa.  St.  346.  429,    2Z    Atl.    1132;    Roanoke    City 

38  Chesapeake  &c.  R.  Co.  V.  Pack,  v.    Berkowitz,    80    Va.   616;    Elliott 

6  W.  Va.  397.  Roads  and  Streets  (3rd  ed.).  §  250; 

•^"  .Milwaukee    Southern     R.     Co.,  post.  §  1222. 

In  re,  124  Wis.  490,  102  N.  W.  401.  -s^  Lockic    v.    Mutual    Union   Tel. 

4"  See  ante,  §  1133.  Co.,  103  111.  401;  Johnston  v.  Chi- 

*^  Hingham   &c.    Co.   v.    Norfolk,  cago   &c.   R.   Co.,   58    Iowa   537,  12 

6    Allen    (Mass.)    353;    Watson    v.  N.  W.   576;   Tyler  v.   Hudson,   147 

.'X.cquackanonck  Water    Co.,   36   X.  Mass.  609,  18  N.  E.  582;  Forney  v. 

J.    L.    195;    De    Camp    v.    Hibernia  Fremont  &c.  R.  Co.,  23  Nebr.  465, 

&c.  R.  Co..  47  N.  J.  L.  43;  Hill  v.  '^(^  N.  W.  806;  South  Beach  &c.  R. 

Mohawk  &c.   R.   Co.,  7  N.  Y.  152;  Co..  In  re,  119  N.  Y.  141,  23  N.  E. 

Union     ]->rry    Co.,    Matter    of,    98  486;  Oregon  &c.  R.  Co.  v.  Owsley, 


AIM'ROPKIA'I'IOX     IM)KI{     I'llK    KMIM.Nl     1)().\1  Al.N 


§1220 


demn.*'  In  the  absence  of  a  statutory  determination  of  the 
amount,  no  precise  rule  can  be  hiid  down  for  determining  exactly 
what  quantity  of  land  may  be  taken,  as  the  needs  of  the  company 
in  any  particular  case  must  necessarily  depend  very  lari,''ely  upon 
the  i)eculiar  facts  and  circumstances  of  that  case."*'  It  is  said 
that  the  selection  of  the  land  and  the  amount  to  be  taken  usually 
rests  in  the  discretion  of  the  C()m])an}',  within  statutory  and  con- 
stitutional limitations  and  this  in  general  is  true.'"'  It  is  also 
said  in  general  terms,  that  the  legislature  may  leave  the  deter- 
mination of  the  particular  property  and  the  amount  needed  "to 
the  discretion  of  those  upon  whom  the  authorit}'  is  conferred,  with 


3  Wash.  Tcr.  38.  See  also  O'Hare 
V.  Chicago  &c.  R.  Co.,  139  111.  151. 
28  N.  E.  923:  United  States  v.  Bal- 
timore &c.  R.  Co..  27  App.  (D.  C.) 
105;  ante,  §§  1195.  1196,  1197. 

^■^  Chesapeake  &c.  Co.  v.  Mason, 

4  Cranch  (U.  S.  C.  C.)  123;  Balti- 
more &c.  R.  Co.  V.  Pittsburg  &c. 
R.  Co.,  17  W.  Va.  812,  10  Am.  & 
Eng.  R.  Cas.  444;  Embury  v.  Con- 
ner, 3  N.  Y.  511,  53  Am.  Dec.  325 
and  note;  Case  v.  Kelly,  133  U.  S. 
21,  10  Sup.  Ct.  216,  33  L.  ed.  513; 
Georgia  Pac.  R.  Co.  v.  Wilks,  86 
Ala.  478,  6  So.  34. 

44  Nashville  &c.  R.  Co.  v.  Cowar- 
din.  11  Humph.  (Tenn.)  348;  Vir- 
ginia &c.  R.  Co.  V.  Elliott,  5  Nev. 
358;  Chicago  &c.  R.  Co.  v.  People. 
4  111.  App.  468.  Yet.  in  a  general 
sense,  the  necessity  which  justifies 
the  condemnation  relates  rather  to 
the  nature  of  the  property  and  the 
uses  to  which  it  is  to  be  applied, 
than  to  the  circumstances  of  the 
particular  case.  It  may  include 
future  necessities,  and  material  for 
construction  and  repair.  Cleveland 
&c.  R.  Co.  V.  Hadley.  179  Ind.  429. 
101  N.  E.  473.  45  L.  R.  A.  (N.  S.) 
796  and  note  reviewing  cases  as  to 


right   to   use  material   elsewhere   in 
track  construction  or  repair. 

•»=  Colorado  &c.  R.  Co.  v.  Union 
Pac.  R.  Co.,  41  Fed.  293;  Smith  v. 
Chicago  &c.  R.  Co.,  105  111.  511; 
O'Hare  v.  Chicago  &c.  R.  Co.,  139 
111.  151,  28  N.  E.  923;  Chicago  &c. 
R.  Co.  v.  Wiltse,  116  111.  449,  6 
N.  E.  49;  Chicago  &c.  R.  Co.  v. 
Pontiac,  169  111.  155,  48  N.  E.  485; 
Richland  School  Tp.  v.  Overmyer, 
164  Ind.  382,  73  N.  E.  811;  South- 
ern &c.  R.  Co.  V.  Stoddard,  6  Minn. 
150;  Deitrichs  v.  Lincoln  &c.  R. 
Co..  13  Nebr.  361.  13  N.  W.  624; 
Lodge  V.  Philadelphia  &c.  R.  Co., 
8  Phila.  (Pa.)  345;  Eldridge  v. 
Smith,  34  Vt.  484.  See  also  Hay- 
ford  V.  Bangor,  102  Maine  340,  66 
Atl.  731.  11  L.  R.  A.  (N.  S.)  940, 
and  note:  Coit  v.  Owenby  &c.  Co., 
166  N.  Car.  136,  81  S.  E.  1067. 
Other  cases  to  the  same  effect  are 
cited  ante  §  1412.  et  seq.  Com- 
pare also  ante,  §  1127,  et  seq.  But 
see  Postal  Tel.  Cable  Co.  v.  Louis- 
ville &c.  Co..  43  La.  Ann.  522,  9 
So.  119;  Louisiana  &c.  R.  Co.  v. 
Xavicr  Realty,  115  La.  .\nn.  328, 
39  So.  1 :  Riley  v.  Charleston  L^'nion 
Station  Co.,  71  S.  Car.  457.  51  S.  E. 
485. 


§1220 


RAILROADS 


756 


or  without  limitations."*^  But  even  if  it  be  true  that  the  legisla- 
ture can  make  the  determination  of  a  company  conclusive  as  to 
the  amount  of  property  necessary  to  be  taken  for  its  use.  it  is 
seldom  that  any  legislature  has  attempted  to  do  so  without 
limitation.  It  is  usually  provided  that  the  question  shall  be  tried 
and  determined  1)y  appraisers,  commissioners,  or  a  jury,  or  some 
other  tribunal.'"  The  company  may  have  a  right  to  exercise  its 
discretion  in  the  first  instance  and  its  determination  may  be 
prima  facie  evidence  that  all  the  land  taken  or  sought  to  l:>e  con- 
demned is  necessary  for  the  use  of  the  road.  1mt  it  seems  to  us 
that  the  company  should  not  have  a  right  to  act  as  final  judge  in 
its  own  case  and  conclusively  determine  the  question,  and  that 
its  discretion  is  subject  both  to  such  statutory  and  constitutional 
provisions  as  may  be  applicable  and  also  to  the  jurisdiction  and 
right  of  the  courts  to  prevent  its  abuse.'*^ 


46  Dewitt  V.  Duncan,  46  Cal.  342: 
Boston  Water  Power  Co.  v.  Boston 
&c.  R.  Co..  23  Pick.  (Mass.)  360; 
Board  of  Supervisors  v.  Gorrell, 
20  Grat.  (Va.)  484.  See  also  to  the 
same  effect  Worcester  Gas  Light 
&c.  Co.  V.  County  Comrs.,  138 
Mass.  289:  Ford  v.  Chicago  &c.  R. 
Co.,  14  Wis.  609,  80  Am.  Dec.  791: 
Lynch  v.  Forbes,  161  Mass.  302,  37 
N.  E.  437,  42  Am.  St.  402.  But 
compare  the  authorities  cited  in 
the  note  in  the  last  report  above 
referred  to. 

*''  Comrs.  Court  v.  Bowie.  34 
Ala.  461:  Southern  Pac.  R.  Co.  v. 
Raymond.  53  Cal.  223:  Illinois 
Cent.  R.  Co.  v.  Chicago.  138  111. 
453.  28  N.  E.  740:  Lecoul  v.  Police 
Jury,  20  La.  Ann.  308;  New  Cen- 
tral &c.  Co.  V.  George's  &c.  Co., 
27  Md.  537:  Power's  Appeal,  29 
Mich.  504:  Thompson,  Matter  of, 
57  Hun  (N.  Y.)  419;  Rensselaer 
Szc.  Co.  V.  Davis,  43  N.^  Y.  137: 
New  York  Cent.  R.  Co.,  Matter  of, 
66  N.  Y.  407:  Carolina  Cent.  R. 
Co.  V.   Love,  81    N.    Car.   434;   Bal- 


timore &c.  R.  Co.  v.  Pittsburg  &c. 
R.  Co.,  17  W.  Va.  812,  10  Am.  & 
Eng.  R.  Cas.  444. 

4s  Coe  v.  Aiken,  61  Fed.  24: 
Southern  Pac.  R.  Co.  v.  Raymond, 
53  Cal.  223;  O'Hare  v.  Chicago  &c. 
R.  Co.,  139  111.  151,  28  N.  E.  923; 
Reed  v.  Louisville  Bridge  Co.,  8 
Bush.  (Ky.)  69:  Tracy  v.  Eliza- 
bethtown  R.  Co..  80  Ky.  259;  New 
York  &c.  R.  Co.  v.  Metropolitan 
&c.  Co.,  63  N.  Y.  326;  Hays  v. 
Risher,  32  Pa.  St.  169;  South  Caro- 
lina R.  Co.  v.  Blake,  9  Rich.  (S. 
Car.)  228:  Riley  v.  Charleston 
LTnion  Station  Co..  71  S.  Car.  457, 
51  S.  E.  485:  Baltimore  &c.  R.  Co. 
V.  Pittsburgh  &c.  R.  Co.,  17  W. 
Va.  812,  10  Am.  &  Eng.  R.  Cas. 
444;  Webb  v.  INTanchcster  &c.  R. 
Co.,  4  M.  &  Cr.  116.  See  also  Del- 
aware &c.  R.  Co.  v.  Tobyhanna 
&c.  Co.,  232  Pa.  St.  76,  81  Atl.  132; 
Chicago  &c.  R.  Co.  v.  Mason,  23 
S.  Dak.  564,  122  N.  W.  601;  Chi- 
cago &c.  R.  Co.  V.  Williams,  148 
Fed.  442.     And  ante,  §§  1412,  1413. 


AIM'KOPUIATION'    UNDER    TIIF:    I.AHXHXT    DOMAIN' 


§1221 


§  1221  (971).  Taking  additional  property. — The  power  of  a 
railroad  company  to  take  lands  by  eminent  domain  is  not  ex- 
hausted by  a  single  exercise,  nor  does  it  expire  with  the  comple- 
tion of  the  road  so  far  as  to  put  it  in  running  order.  Additional 
land  may  be  taken  from  time  to  time,  as  may  be  required  by  the 
increased  necessities  of  the  company,  due  to  growth  of  business, 
or  demands  for  greater  accommodation  for  the  public.*"  Thus, 
where  the  necessities  of  the  road  required  a  terminal  depot  and 
turntable  at  a  certain  point,  it  was  held  that  the  company  could 
condemn  land  for  a  side  track  or  branch  line  leading  to  the  lot  on 
which  it  had  erected  them.^"  The  company  may  condemn  land 
for  the  construction  of  additional  side  tracks,''^  or  depots, •''-  where 
the  accommodation  of  the  public  demands  them.^^  Land  for 
additional  shops  for  the  repair  of  engines  and  cars  used  on  the 


49  Florida  Central  &c.  R.  Co.  v. 
Bell,  43  Fla.  359,  31  So.  259;  Chi- 
cago &c.  R.  Co.  V.  Wilson.  17  111. 
123;  Fisher  v.  Chicago  &c.  R.  Co., 
104  111.  323;  Prather  v.  Jeflferson- 
ville  &c.  R.  Co.,  52  Ind.  16;  Peck 
V.  Louisville  &c.  R.  Co.,  101  Ind. 
366;  Hopkins  v.  Philadelphia  &c. 
R.  Co.,  94  Md.  257,  51  Atl.  404; 
Childs  V.  Central  R.  &c.  Co.,  33 
N.  J.  L.  323;  Beck  v.  United  &c. 
R.  Co.,  39  N.  J.  L.  45;  New  York 
Cent.  &c.  R.  Co..  In  re,  67  Barb. 
(N.  Y.)  426;  Toledo  &c.  R.  Co.  v. 
Daniels,  16  Ohio  St.  390;  Philadel- 
phia &c.  R.  Co.  V.  Williams,  54 
Pa.  St.  103;  South  Carolina  &c.  R. 
Co.  V.  Blake,  9  Rich.  (S.  Car.)  228. 
See  ante,  §  1208. 

50  New  Orleans  &c.  R.  Co.  v. 
Second  Municipaltiy,  1  La.  Ann. 
128;  Knight  v.  Carrollton  R.  Co.. 
9  La.  Ann.  284.  See  also  Chicago 
&c.  Electric  R.  Co.  v.  Chicago  &c. 
R.  Co.,  211  111.  352,  71  N.  E.  1017. 
Terminal  facilities  may  be  con- 
demned   at    any    point    which    the 


needs  of  the  road  may  dictate. 
Central  Branch  &c.  R.  Co.  v.  Atch- 
ison &c.  R.  Co.,  26  Kans.  669.  See 
;.lso  Eckart  v.  Ft.  Wayne  &c.  T. 
Co.,  181  Ind.  352,  104  N.  E.  762. 

•■^i  St.  Louis  &c.  R.  Co.  V.  Petty, 
57  Ark.  359,  21  S.  W.  884,  20  L.  R. 
A.  434  and  note:  Philadelphia  &c. 
R.  Co.  V.  Williams,  54  Pa.  St.  103. 
See  New  Cent.  Coal  Co.  v.  George's 
Creek  Coal  Co.,  37  Md.  537;  Sher- 
man V.  Buick,  32  Cal.  241,  91  Am. 
Dec.  577  and  note;  Fisher  v.  Chi- 
cago &c.  R.  Co.,  104  111.  323;  Chi- 
cago &c.  Electric  R.  Co.  v.  Chi- 
cago &c.  R.  Co..  211  III.  352.  71 
N.  E.  1017. 

^-  Deitrichs  v.  Lincoln  &c.  R. 
Co.,  13  Nebr.  361,  13  N.  W.  624. 

53  See  Pittsburg  &c.  R.  Co.  v. 
Benwood  Iron  Works,  31  W.  Va. 
710,  8  S.  E.  453,  2  L.  R.  A.  680  and 
note,  for  a  discussion  of  the  ques- 
tion as  to  what  is  such  a  public 
necessity  as  will  justify  the  exer- 
cise of  this  power. 


§1222 


RAILROADS 


758 


road  may  be  condemned,^*  and  where  the  right  of  way  as  orig-in- 
ally  acquired  was  not  so  wide  as  the  company  is  permitted  to 
hold  for  that  purpose,  its  width  may  l)e  increased,  when  neces- 
sary, l)y  condemnation  to  the  statutory  Hmit.^^  The  fact  that 
the  charter  required  the  railroad  to  be  "completed"  by  a  certain 
time,  does  not  necessarily  limit  its  right  to  condemn  additional 
necessary  lands  after  expiration  of  that  time.''*^  Other  phases  of 
this  subject  have  already  been  considered.'"'" 

§  1222  (972).  Title  or  interest  acquired. — The  legislature  is 
the  sole  judge  of  the  estate  to  be  taken  in  lands  required  for  the 
construction  of  a  public  work,  and  may  authorize  the  taking  of 
the  fee,^^  or  of  any  less  interest.  But  where,  as  is  usually  true  in 
the  case  of  railroads,  an  easement  only  is  required,  no  greater 
estate  can  be  taken  unless  the  power  to  take  the  fee  is  expressly 
conferred.'"'^     Thus,  where  the  act  provided  that  the  corporation 


•"'*  Chicago  &c.  R.  Co.  v.  Wilson, 
17  III.  123. 

55  Childs  V.  Central  R.  Co.  &c., 
33  N.  J.  L.  323.  See  also  Smith  v. 
Cleveland  &c.  R.  Co..  170  Ind.  382, 
81  N.  E.  501:  Lilley  v.  Pittsburg 
^c.  R.  Co.,  213  Pa.  St.  247,  62  Atl. 
852. 

^'^  Brown  V.  Philadelphia  &c.  R. 
Co..  58  Md.  539:  Philadelphia  &c. 
R.  Co.  V.  Williams,  54  Pa.  St.  103. 
Rut  such  a  condition  may  be  so 
worded  as  to  enable  the  land- 
owner to  take  advantage  of  it. 
Peavey  v.  Calais  R.  Co.,  30  Maine 
498;  Morris  &c.  R.  Co.  v.  Central 
R.  Co.,  31  N.  J.  L.  205. 

57  Ante.  §§  1204.  1206,   1208. 

58  Mason  v.  Lake  Erie  &c.  R. 
Co.,  9  Biss.  (U.  S.)  239:  Water 
Works  Co.  V.  Rurkhart.  41  Tnd. 
364;  Logansport  v.  Shirk.  88  Ind. 
563;  Page  v.  O'Toole,  144  Mass. 
303,  10  N.  E.  851:  Fairchild  v.  St. 
Paul,  46  Minn.  540,  49  N.  W.  325. 


citing  Elliott  Roads  and  Streets, 
172;  Currie  v.  New  York  Transit 
Co.,  66  N.  J.  Eq.  313,  58  Atl.  308, 
105  Am.  St.  647;  Birdsall  v.  Cary, 
66  How.  Prac.  (N.  Y.)  358;  Sweet 
V.  Buffalo  &c.  R.  Co.,  79  N.  Y.  293; 
:\Ialone  v.  Toledo,  28  Ohio  St.  643; 
Haldeman  v.  Pennsylvania  R.  Co., 
50  Pa.  St.  425;  Hedger  v.  Aberdeen 
&c.  R.,  Co.,  26  S.  Dak.  491,  128 
N.  W.  602;  Roanoke  City  v.  Ber- 
kowitz,  80  Va.  616.  But  see  Al- 
bany Street.  Matter  of,  11  Wend. 
(N.  Y.)  149.  25  Am.  Dec.  618  and 
note;  New  Orleans  &c.  Co.  v.  Gay, 
32  La.  Ann.  471;  Henry  v.  Du- 
buque R.  Co.,  2  Iowa  288. 

5!^  Union  Pacific  R.  Co.  v.  Colo- 
rado Postal  Tel.  Cable  Co..  30  Colo. 
133.  69  Pac.  564;  Fitch  v.  New 
York  &c.  R.  Co.,  59  Conn.  414,  20 
.\tl.  345,  10  L.  R.  A.  188;  Henry 
V.  Dubuque  &c.  R.  Co.,  2  Iowa 
288:  Missouri  &c.  R.  Co.  v. 
Schmuck,    69    Kans.    272,    76    Pac. 


7r)9 


APPROPRIATION    IXDER    THK    KMINKXT    DOMAIN' 


§1222 


should  he  "seized  and  possessed  of  the  Innd"  taken,""  it  was  held 
tliat  an  easement  only  was  acquired  hy  condemnation.  So, 
where  it  was  ]MOvi(led  that  the  title  to  the  land  taken  should  vest 
in  the  company.''^  and  it  has  even  l)een  held  that  an  act  providing 
that  a  fee-simple  title  to  its  right  of  way  should  vest  in  a  railroad 
company  conferred  upon  the  company  onl\-  a  base  of  terminable 
fee,  and  that  the  land  would  revert  if  the  company  ceased  to  use 
it  for  railroad  purposes."-  The  general  railroad  laws  of  the 
several  states  usually  provide  that  the  railroad  company  shall 
have  "the  right  to  acquire  title"  to  necessary  lands  by  certain 
proceedings  for  that  purpose.  Such  a  provision  enables  it  to 
condemn  merelv  an  easement  and  not  the  fee.®^     But  the  ease- 


836:  New  Orleans  R.  Co.  v.  Gaj-. 
32  La.  .A.nn.  471;  Postal  Tel.  &c. 
Co.  V.  Louisiana  &c.  R.  Co.,  49 
La.  Ann.  1270,  22  So.  219:  Clark 
V.  Worcester,  125  Mass.  226;  New 
Jersey  &c.  Co.  v.  Morris  &c.  Co., 
44  N.  J.  Eq.  398,  15  Atl.  227,  1 
L.  R.  A.  133  and  note;  Pennsyl- 
vania R.  Co.  V.  Breckenridge,  60 
N.  J.  L.  583.  38  Atl.  740:  New  York 
&c.  R.  Co.  V.  Kip,  46  N.  Y.  546,  7 
Am.  Rep.  385;  Washington  Ceme- 
tery Co.  V.  Prospect  Park  &c.  R. 
Co..  68  N.  Y.  591;  Corwin  v.  Cow- 
an, 12  Ohio  St.  629;  McCombs  v. 
Stewart.  40  Ohio  St.  647;  Oregon 
&c.  R.  Co.  V.  Oregon  &c.  Co.,  10 
Ore.  444:  Pittsburg  &c.  R.  Co,  v. 
Bruce,  102  Pa.  St.  23:  Lyon  v.  Mc- 
Donald, 78  Tex.  71,  14  S.  W.  261, 
9  L.  R.  A.  295  and  note;  Jackson 
V.  Rutland  &c.  R.  Co.,  25  Vt.  150, 
60  Am.  Dec.  246.  See  also  Cleve- 
land &c.  R.  Co.  v.  Doan,  47  Ind. 
App.  322,  94  N.  E.  598:  Cleveland 
&c.  R.  Co.  v.  Smith,  177  Ind.  524, 
97  N.  E.  164;  Louisiana  Land  Co. 
V.  Hlakewood.  131  La.  539.  59 
So.  984;  Louisiana  &c.  R.  Co. 
V.    Louisiana    R.    &c.    Co.,    121    La. 


Ann.  587,  53  So.  872.  But  compare 
New  Orleans  &c.  R.  Co.  v.  Gay, 
31  La.  Ann.  430;  United  States 
Pipe  Line  Co.  v.  Delaware  &c.  R. 
Co.,  62  N.  J.  L.  254,  41  Atl.  749, 
42  L.  R.  A.  572. 

•^^  Quimby  v.  \"ermont  Central 
R.  Co.,  23  Vt.  387. 

61  Dunham  v.  Williams,  36  Barb. 
(N.  Y.)  136.  But  see  Page  v. 
OToole,  144  Mass.  303,  10  N.  E. 
851:  Brooklyn  Park  Comrs.  v. 
Armstrong,  45  N.  Y.  234,  6  Am. 
Rep.  70  and  note;  Barnett  v.  John- 
son, 15  N.  J.  Eq.  481. 

62  Kellogg  V.  Malin,  50  Mo.  496. 
11  Am.  Rep.  426.  See  Gurney  v. 
Minneapolis  &c.  Co.,  63  Minn.  70. 
65  N.  W.  136;  Scott  v.  St.  Paul 
&c.  R.  Co..  21  Minn.  232;  Mechan- 
icsville  &c.  R.  Co.  v.  Fitchburg  R. 
Co.,  103  Misc.  46,  170  N.  Y.  S.  476: 
T-cach  V.  Philadelphia  Sec.  R.  Co., 
258  Pa.  St.  518.  102  Atl.  174. 

63  Quick  V.  Taylor,  113  Ind.  540, 
16  N.  E.  588;  Chicago  &c.  R.  Co. 
V.  Huncheon,  130  Ind.  529.  30  N.  E. 
636:  Kansas  Central  R.  Co.  v.  .M- 
len.  22  Kans.  285.  31  Am.  Rep.  190; 
\\'^ashington   Cemetery  v.  Prospect 


§1222 


RAILROADS 


760 


ment  usually  acquired  is  in  its  nature  perpetual,"  and  differs  vcry 
inaterially  from  an  ordinary  easement."'*  It  has  been  held  that 
where  the  state  itself  seizes  land  for  a  permanent  public  use  it 
may  more  readily  be  presumed  to  have  taken  a  fee,  which  may  be 
transmitted  by  it  to  the  corporation  to  which  it  grants  the  same.'''' 
A  railroad  can  not  condemn  a  less  interest  in  land  taken  than 
that  required  and  prescribed  by  the  legislature.  Thus,  under  a 
statute  authorizing  it  to  take  land  for  a  perpetual  right  of  way  it 
can  not  appropriate  land  for  a  temporary  track,  to  be  used  while 
its  main  track  is  rebuilding.'"''    or    until    the    land-owners    shall 


Park  &c.  R.  Co.,  68  N.  Y.  591.  See 
also  East  Tenn.  &c.  R.  Co.  v.  Tel- 
ford, 89  Tenn.  293,  14  S.  W.  lid, 
10  L.  R.  A.  855;  Pittsburg  &c.  R. 
Co.  V.  Bruce,  102  Pa.  St.  23;  Com- 
missioners V.  Mich.  Cent.  R.  Co., 
90  Mich.  385,  51  N.  W.  447. 

64  Chaplin  v.  Corns.,  126  111.  264, 
18  N.  E.  765;  Henry  v.  Dubuque 
&c.  R.  Co.,  2  Iowa  288;  Pilcher  v. 
Atchison  &c.  R.  Co.,  38  Kans.  516, 
16  Pac.  945,  5  Am.  St.  770;  Beal  v. 
New  York  &c.  R.  Co.,  3  How. 
Prac.  N.  S.  (N.  Y.)  329;  Cummins 
V.  Des  Moines  &c.  R.  Co.,  63  Iowa 
397.  19  N.  W.  268.  And  is  gener- 
ally exclusive.  Fitch  v.  New  York 
&c.  R.  Co.,  59  Conn.  414,  20  Atl. 
345.  10  L.  R.  A.  188:  New  Alexico 
V.  United  States  Trust  Co.,  172 
U.  S.  171,  19  Sup.  Ct.  128.  43  L.  ed. 
407.  See  also  Philadelphia  R.  Co. 
V.  Hummell,  44  Pa.  St.  375.  84  Am. 
Dec.  457.  But  compare  Louisville 
&c.  R.  Co.  V.  Western  Un.  Tel. 
Co..  249  Fed.  385. 

«■''  Bemis  v.  Springfield,  122  Mass. 
110;  Pennsylvania  &c.  R.  Co.  v. 
Reading  Paper  Mills,  149  Pa.  St. 
18.  20  Atl.  761:  New  York  &c.  R. 
Co.  V.  Trimmer,  53  N.  J.  L.  1,  20 
At!.  761.  See  also  Western  Union 
Tel.    Co.    V.    Pennsylvania    R.    Co., 


195  U.  S.  540,  25  Sup.  Ct.  133,  141, 
49  L.  ed.  312;  Northern  Pac.  R. 
Co.  V.  North  American  Tel.  Co., 
230  Fed.  347;  Smith  v.  Hall,  103 
Iowa  95,  72  N.  W.  427;  Currie  v. 
Bangor  &c.  R.  Co.,  105  Maine  529, 
75  Atl.  51;  Pittsburg  &c.  R.  Co.  v. 
Peet,  152  Pa.  St.  488,  25  Atl.  612, 
19  F.  R.  A.  467;  Dilts  v.  Plumville 
R.  Co..  222  Pa.  St.  516.  71  Atl.  1072: 
Philadelphia  v.  Ward,  174  Pa.  St. 
45.  34  Atl.  458. 

66  W'ater  Works  Co.  v.  Burkhard, 
41  Tnd.  364;  Brookville  &c.  Co.  v. 
Butler,  91  Ind.  134,  46  Am.  Rep. 
580:  Dingley  v.  Boston,  100  Mass. 
544:  Coster  v.  New  Jersey  &c.  Co., 
23  N.  J.  L.  227;  Rexford  v.  Knight, 
11  N.  Y.  308;  Malone  v.  Toledo. 
34  Ohio  St.  541;  Haldeman  v. 
Pennsylvania  R.  Co.,  50  Pa.  St. 
425:  Wyoming  &c.  Co.  v.  Price,  81 
Pa.   St.   156. 

67  Currier  v.  Marietta  &c.  R.  Co., 
11  Ohio  St.  228.  In  Heyneman  v. 
Blake,  19  Cal.  579,  it  was  held  that 
authority  to  condemn  private  lands 
for  use  hy  a  corporation  includes 
the  right  to  condemn  any  estate  or 
interest  therein  for  the  same  ob- 
ject. See  also  Charleston  &c.  R. 
Co.  V.  Blake,  12  Rich.  (S.  Car.) 
634:  Sixth  .\ve.  R.  Co.  v.  Kerr,  72 


76] 


APPKOPHIATIOX    rNDf:R    T]IE    KMIXKNT    DOMAIN' 


§1222 


choose  to  mine  the  coal  over  which  it  niiis.''^  But  it  need  only 
take  the  surface  of  the  land  with  sufficient  underlyinj^f  strata  to 
support  the  road,  and  is  nc)t  olrlig'ecl  to  take  the  mines  and  min- 
erals lying-  beneath  the  surface.""  And  it  has  l^een  held  in  Cali- 
fornia and  other  states  that  the  minerals  can  not  ordinarily  be 
taken,  but  are  reserved  to  the  land-owner. '^°  But  the  underly- 
inii'  minerals  mav  be  and  are  usuallv  if  not  alwavs  taken  so  far 


N.  Y.  330;  Jerome  v.  Ross,  7  Johns. 
Ch.  (X.  Y.)  315,  11  Am.  Dec.  484. 
Where  it  is  not  required  by  stat- 
ute to  take  the  maximum  allowed, 
it  may  take  a  smaller  interest,  and 
provision  is  often  made  for  Hmit- 
inp:  the  interest  or  extent  by  the 
petition  or  instrument  of  appro- 
priation. 

^^  De  Camp  v.  Hibernia  Under- 
ground R.  Co.,  47  N.  J.  L.  43:  Hi- 
bernia Underground  R.  Co.  v.  De 
Camp.  47  N.  J.  L.  518.  54  Am.  Rep. 
197:  Hartford  &c.  R.  Co..  Matter 
of.  65  How.  Prac.  (N.  Y.)  133; 
Wheelock  v.  Young.  4  Wend.  (N. 
Y.)  647:  Pinchin  v.  London  &c.  R. 
Co..  24  L.  J.  N.  S.  417. 

6^  Corporation  of  Huddersfield 
and  Jacomb,  In  re,  L.  R.  10  Ch.  92. 
Sec  also  Robert  v.  Sadler,  104  N. 
Y.  229,  58  Am.  Rep.  498  and  note; 
Hartford  &c.  R.  Co.,  Re,  65  How. 
Prac.  (N.  Y.)  133.  An  entry  by 
eminent  domain  upon  the  surface 
i^  an  entry  upon  subjacent  strata, 
so  far  as  they  are  necessary  to 
support  the  surface  for  the  purpose 
of  the  structure  for  which  the  land 
is  taken.  Penn  Gas  Coal  Co.  v. 
Versailles  Fuel  Gas  Co.,  131  Pa. 
522,  19  Atl.  933;  Evans  v.  Haefner, 
20  Mo.  141.  See  also  Piatt  v. 
Pennsylvania  Co.,  43  Ohio  St.  228, 
1  N.  E.  420:  Alabama  &c.  R.  Co. 
V.   Gilbert.   71    Ga.   591;    Hasson   v. 


Oil  Creek  &c.  R.  Co..  8  Phila.  (Pa.) 
556:  r.affertj'  v.  Schuylkill  &c.  R. 
Co..  124  Pa.  St.  297,  16  Atl.  869,  3 
L.  R.  A.  124,  10  Am.  St.  587;  East 
Tennessee  &c.  R.  Co.  v.  Telford, 
89  Tenn.  293,  14  S.  W.  776.  10  U. 
R.  A.  855:  Olive  v.  Sabine  &c.  R. 
Co..  11  Tex.  Civ.  App.  208.  33  S.  W. 
139:  Hurd  v.  Rutland  &c.  R.  Co., 
25  Vt.  116;  Troy  &c.  R.  Co.  v.  Pot- 
ter. 42  Vt.  265.  1  Am.  Rep.  325; 
St.  Louis  &c.  R.  Co.  V.  Clark,  121 
Mn.  169.  195.  25  S.  W.  192,  906,  26 
L.  R.  A.  751.  as  to  how  far  the 
land-owner  is  precluded  from  using 
what  is  taken  bj^  the  company.  As 
to  tide  lands  and  right  to  take  land 
under  water,  see  New  York  Cent. 
&c.  R.  Co.,  Matter  of,  77  N.  Y. 
248;  State  ex  rel.  v.  King  Co.  Sup. 
Ct..  31  Wash.  445.  72  Pac.  89.  66 
L.  R.  A.  897  and  note. 

^°  Southern  Pac.  R.  Co.  v.  San 
Francisco  Sav.  Union.  146  Cal.  290. 
79  Pac.  961.  70  L.  R.  A.  221.  106 
Am.  St.  36,  41,  and  authorities  there 
cited;  notes  in  85  Am.  St.  295.  94 
Am.  St.  864.  See  generally  as  to 
.right  of  landowner  to  mine  under 
road  without  disturbing  it  and  as 
to  the  relative  rights  and  duties  of 
landowner  and  company  in  such 
cases.  Eldorado  &c.  R.  Co.  v.  Suies. 
228  111.  9.  81  N.  E.  782:  Cleveland 
&c.  R.  Co.  V.  Simpson.  182  Ind. 
693.    104   N.    E.   301,    108   X.   E.  9; 


§1223 


RAILROADS 


'62 


as  necessary  to  support  the  surface.''  and.  even  where  onl}'  an 
easement  is  taken,  the  company  ordinarily  accpiircs  a  right  to 
take  so  much  of  the  earth  and  materials  within  the  right  of  way 
as  may  be  reasonal^ly  necessary  to  remove  in  constructing  and 
repairing  its  roadbed  and  to  use  it  at  other  points  on  the  road."- 
It  has  been  held  in  Minnesota  that  the  title,  of  whatsoever  sort 
acquired,  dates  from  the  time  the  award  is  filed.'" 

§  1223  (972a).  Reversion  on  abandonment. — A\'here  a  rail- 
road com|)any  acquires  a  mere  easement  in  the  land  condemned 
its  right  to  the  property  is  dependent  upon  its  use  for  public 
purposes,  and  it  has  been  held  that  when  this  public  use  is  aban- 
doned or  becomes  impossible  the  right  of  the  railroad  company 
to  hold  the  land  ceases  and  the  property  reverts  to  the  owner  of 
the  fee,"*  and  is  subject  to  an  appropriation  for  other  public 
uses.^^  To  have  this  efTect,  however,  there  must  ordinarily  be 
not  only  an  actual  relinquishment  of  the  property  by  the  railroad 


Kansas  City  R.  Co.  v.  Allen,  22 
Kans.  285,  31  Am.  Rep.  190;  notes 
in  8  L.  R.  A.  (N.  S.)  422,  45  L.  R. 
A.   (N.  S.)  801,  et  seq. 

7iDilts  V.  Phimville  R.  Co.,  222 
Pa.  St.  516,  71  Atl.  1072. 

72  Cleveland  &c.  R.  Co.  v.  Had- 
ley,  179  Ind.  429,  442,  101  N.  E. 
473,  45  L.  R.  A.  (N.  S.)  796,  and 
authorities  there  cited  in  opinion 
and  note.  There  is  some  sHc;ht 
conflict  amonjr  the  cases  upon  tlie 
subject,  but,  as  shown  in  the  note 
above  referred  to,  this  is  the  pre- 
vailing and  better  rule.  The  com- 
pany has  no  right,  however,  to 
remove  such  material  merely  for. 
the  purpose  of  selling  it.  Nash- 
ville &c.  R.  Co.  V.  Karlhaus,  150 
Ala.  633,  43  So.  791;  Hendrix  v. 
Southern  R.  Co.,  162  N.  Car.  9,  11 
S.  E.  1001  (nor  unnecessarilj-  and 
merely  for  use  elsewhere);  Hend- 
ler   V.    Lehigh    Valley    R.    Co.,   209 


Pa.  St.  256.  58  Atl.  486.  103  Am. 
St.  1005   (same). 

"■'■  State  V.  Chicago  &c.  R.  Co., 
85  Alinn.  416,  89  N.  W.  1.  But  see 
Dowic  V.  Chicago  &c.  R.  Co.,  214 
111.  49.  IZ  N.  E.  354.  where  it  is 
held  that  the  rights  and  interests 
of  the  parties  date  from  the  filing 
of  the  petition. 

"*  Chicago  &c.  R.  Co.  v.  Clapp, 
201  III.  418,  66  N.  E.  223;  Miller  v. 
Cincinnati  &c.  Elec.  St.  R.  Co.,  43 
Ind.  App.  540,  88  N.  E.  102;  Louis- 
iana &c.  R.  Co.  v.  Louisiana  R. 
&c.  Co.,  127  La.  587,  53  So.  872: 
Canton  Co.  v.  Baltimore  &c.  R. 
Co.,  99  Md.  202.  57  Atl.  637;  Me- 
chanicsville  &c.  R.  Co.  v.  Fitch- 
burg  &c.  R.  Co.,  103  Misc.  46,  170 
N.  Y.  S.  476;  Leach  v.  Philadel- 
phia &c.  R.  Co.,  258  Pa.  St.  578. 
102  Atl.  174. 

''->  Crescent  v.  Pittsl:)nrg  <S:c.  R. 
Co.,  210  Pa.  334.  59  Atl.  1103. 


76;]  APPHOI'KIATION    UNDER    THE    EMINENT    DOMAIN  §1224 

company,  but  also  an  intention  to  abandon  it.'"  The  la\v  re- 
(juires  some  decided  act  indicative  of  an  intention  to  abancU>n  and 
this  intention  must  be  determined  from  the  circumstances  of  tlie 
case."  Thus  it  was  held  that  an  intention  to  abanthjn  a  rij^ht  o.f 
way  acquired  by  condemnation  proceedings  was  not  conchtsively 
show  11  in  the  case  of  a  railroad  company  financially  embarrassed, 
l)y  the  mere  fact,  that  it  entered  into  an  arrangement  with  an- 
other road  by  which  it  secured  traffic  facilities."  So  in  another 
case  where  a  railroad  company  had  regularly  condemned  land 
lor  a  water  station  and  caused  it  to  be  flooded  with  water  for  its 
use,  it  was  held  that  a  leasing  of  the  reservoir  to  a  fishing  and 
boating  club,  reserving  to  the  railroad  company  its  actual  posses- 
sion for  all  the  purposes  for  which  the  land  was  condemned  with 
a  right  to  cancel  the  lease  at  any  time  on  thirty  days'  notice,  did 
not  show  an  abandonment  of  the  land  as  a  water  station."''  In 
Nebraska  it  is  held  that  the  failure  of  a  railroad  company  for  ten 
years  to  use  property  acquired  in  condemnation  proceedings  and 
afterwards  conveyed  to  a  railroad  company  by  the  owner  does 
not  show  an  abandonment  of  all  title  thereto  and  that  even 
though  an  easement  only  was  conveyed  by  the  deed  it  could  only 
be  extinguished  by  adverse  possession  for  the  same  length  of 
lime  required  to  extinguish  the  title  of  an  owner  in  fee.^°  On  the 
question  of  intention  to  abandon,  it  has  been  held  competent  to 
show  that  the  railroad  was  built  merely  for  temporary  purposes 
and  this  object  had  been  fulfilled.*^ 

§  1224  (973).  Width  taken  for  right  of  way. — The  legislature 
has  authority  to  prescribe  the  width  of  the  strip  to  be  taken  by  a 
railroad  for  a  right  of  way.*-  or  it  may  confer  a  general  power  to 
take   the   necessary   land   for   the   purpose   of   the   corporation.*' 

-«  Chicago   &c.   R.    Co.   v.   Clapp,  Co.,  2  Nebr.  (Unofif.)  585,  89  X.  W. 

201  111.  418,  66  N.  E.  223.  604. 

""  Canton    Co.    v.    Baltimore    &c.  "^  Chicago   &c.    R.   Co.   v.   Clapp. 

R.  Co.,  99  Aid.  202,  57  Atl.  637.  201  111.  418,  66  N.  E.  223. 

'8  Canton    Co.    v.    Baltimore    &c.  ^-  See    Hingham    &c.   Tpk.    Corp. 

R.  Co..  99  Md.  202,  57  Atl.  637.  v.  Norfolk,  6  Allen   (Mass.)   353. 

"^  Dillon   V.   Kansas   City  &c.    R.  ^^  Proceedings    founded    upon    a 

Co.,  67  Kans.  687,  74  Pac.  251.  petition  b}-  which  the  railroad  com- 

^"  Struve    V.    Republic    Valley    R.  pany  seeks  to  condemn  a  right  of 


§1224 


RAILROADS 


'64 


The  width  of  the  strip  whicli  a  raih-oad  company  is  authorized  to 
take  for  a  right  of  way  is  usually  fixed  by  statute,  or  by  the 
charter,**  and  no  land  can  be  taken  lieyond  the  limits  oi  that 
strip,  except  as  specially  authorized.^"'  In  many  of  the  states  ad^ 
ditional  land  may  be  taken^"  when  necessary  for  cuttings  or  em- 
bankments, depots  and  stations,  or  side  tracks,  or  for  procuring 
materials  for  use  in  the  construction  of  the  road.  The  enumerat- 
ed reasons  for  which  a  railroad  may  be  permitted  to  increase  the 
width  of  its  right  of  way  are  exclusive,  and  a  railrcjad  will  not  be 
permitted  to  increase  the  width  of  its  roadway  upon  any  other 
grounds. '^^  Where  the  company  seeks  to  take  ground  outside 
the  limits  of  the  right  of  way  as  defined  by  statute,  the  burden 
is  upon  it  to  establish  the  necessity  of  such  taking.**  It  has  also 
been  held  that  even  within  the  limits  of  the  maximum  width  pre- 
scribed for  its  right  of  way,  a  railroad  can  take  only  such  lands 
as  are  reasonably  necessary  and  convenient  for  its  use.*^  But 
courts  do  not  ordinarily  closely  inquire  into  the  question  of 
necessit}'  in  such  a  case  and  where  the  width  first  taken  is  less 
than  the  width  authorized  by  statute  the  power  to  take  the  full 


way  of  greater  width  than  the 
maximum  width  allowed  bj-  stat- 
ute have  been  held  void  and  set 
aside  in  toto.  State  v.  Hudson 
Terminal  R.  Co.,  46  N.  J.  L.  289. 
See  also  Barnes  v.  Chicago  &c.  R. 
Co.  (Tex.),  33  S.  W.  601. 

84  See  Nashville  &c.  R.  Co.  v. 
Hammond,  104  Ala.  191,  15  So. 
935;  T,ower  v.  Chicago  &c.  R.  Co., 
59  Iowa  563,  13  N.  W.  718. 

8^  Kemper  v.  Cincinnati  &c.  R. 
Co.,  11  Ohio  392;  Johnston  v.  Chi- 
cago &c.  R.  Co.,  58  Iowa  537,  12 
N.  W.  576;  State  v.  Hudson  &c. 
R.  Co.,  46  N.  J.  L.  289,  20  -\m.  & 
Eng.  R.  Cas.  294. 

*6  See  Smith  v.  Cleveland  &c.  R. 
Co.,  170  Ind.  382,  396,  81  N.  E. 
501  (citing  text).  But  if  the  com- 
pany abuses  the  discretion  vested 
in    it    by    statute,    by    taking   addi- 


tiriiial  land  unnecessaril3%  equity 
ma\-  restrain  it  so  as  to  keep  it 
within  the  limits  of  its  charter. 
.\tlantic  &c.  R.  Co.  v.  Penny,  119 
Ga.  479,  46  S.  E.  665. 

8'  Brown  v.  Rome  &c,  R.  Co.,  86 
Ala.  206,  5  So.  195;  Johnston  v. 
Chicago  &c.  R.  Co.,  58  Iowa  537, 
12  N.  W.  576. 

ss  Jefferson  &c.  R.  Co.  v.  Ha- 
zeur,  7  La.  Ann.  182;  Wisconsin 
Central  R.  Co.  v.  Cornell  Univer- 
sity, 52  Wis.  537,  8  N.  W.  491.  It 
is  held  in  Chicago  &c.  R.  Co.  v, 
Dunbar,  100  111.  110,  that  the  ne- 
cessity need  not  be  apparent  be- 
fore condemnation. 

^''^  Tracy  v.  Elizabethtown  &c.  R. 
R.  Co.,  80  Ky.  259;  Chicago  &c. 
R.  Co.  V.  Dunbar,  100  111.  110.  But 
where  it  is  necessary  to  take  land 
upon  which   buildings  are  situated. 


765 


APPROPRIATION    UNDER    THE   EMINENT   DOMAIN 


§1224 


Statutory  width  is  not  exhausted.^^  If  it  be  shown  that  the  rail- 
road company  has  made  arrangement  with  other  companies  to 
share  with  them  the  land  sought  to  be  condemned,  this,  it  has 
been  held,  should  be  taken  as  an  admission  on  its  i)art  that  its 
necessities  do  not  require  all  of  the  land."^  But  where  a  petition 
was  filed  for  the  condemnation  of  a  strip  of  land  twenty  feet 
wider  than  the  railroad  company  could  lawfully  condemn,  unless 
lor  necessary  cutting  and  filling,  and  no  question  as  to  its  right 
to  condemn  was  made  in  the  court  below,  the  necessity  was  held 
to  have  been  conceded.''-  The  company  may  condemn  a  strip  of 
the  full  statutory  width,  although  it  already  owns  the  adjoining 
L".nd.^^  Where  no  width  is  specified,  the  charter  will  be  con- 
strued to  authorize  the  taking  of  so  much  land  as  is  reasonably 
necessary  for  the  purposes  of  the  company,'''*  including,  in  some 
jurisdictions  at  least,  a  reasonable  amount  of  land  for  the  an- 


the  buildings  may  be  condemned 
with  the  ground  and  afterward  re- 
moved and  sold.  Forney  v.  Fre- 
mont &c.  R.  Co.,  23  Nebr.  465,  36 
N.  W.  806:  Chicago  &c.  R.  Co.  v. 
Knuffke.  36  Kans.  367,  13  Pac.  582. 
9°  Chicago  &c.  R.  Co.  v.  Baugh, 
175  Ind.  419,  424,  94  N.  E.  571, 
citing  this  section  and  Chicago  &c. 
R.  Co.  V.  Chicago  &c.  R.  Co.,  211 
111.  352,  360,  71  N.  E.  1017,  and 
other  Indiana  cases. 

91  Swinney  v.  Fort  Wayne  &c. 
R.  Co.,  59  Ind.  205. 

92  Booker  v.  Venice  &c.  R.  Co., 
101  111.  333. 

93  Stark  V.  Sioux  City  &c.  R.  Co., 
43  Iowa  501.  See  also  Eel  River 
&c.  R.  Co.  V.  Field,  67  Cal.  429.  7 
Pac.  814;  Chicago  &c.  Electric  Co. 
V.  Chicago  &c.  R.  Co..  211  111.  352. 
71  N.  E.  1017.  In  New  Central 
Coal  Co.  V.  George's  Creek  Coal 
&c.  Co.,  37  Md.  537,  it  was  held 
that  a  company  could  not  take 
lands  in  invitum  where  it  already 
owned  lands  equally  useful  for  its 


purpose.  Where  the  railroad  com- 
pany has  procured  a  strip  of  land 
for  a  right  of  way  by  voluntary 
grant  it  may  condemn  a  sufficient 
amount  of  land  to  increase  the 
right  of  way  to  the  full  statutory 
width.  Childs  v.  Central  R.  Co. 
&c..  33  N.  J.  L.  323. 

^■*  Booker  v.  Venice  &c.  R.  Co.. 
101  111.  333;  Lockie  v.  Mutual  Union 
Tel.  Co.,  103  III.  401;  Sadd  v.  Alal- 
don  R.  Co..  6  Exch.  143.  A  rail- 
road company  which  purchased 
from  another  company  a  right  of 
way  twenty-five  feet  in  width,  on 
which  a  railroad  track  was  con- 
structed, was  held  to  have  the 
power  to  locate  an  additional  track 
on  land  adjacent  to  the  right  of 
way,  and  it  was  held  that  it  might 
for  that  purpose  condemn  an  ad- 
ditional strip.  Chicago  &c.  R.  Co. 
V.  Chicago  &c.  R.  Co..  211  111.  352. 
71  N.  E.  1017.  .A  voluntary  con- 
veyance of  a  right  of  way  of  un- 
defined width  to  a  railroad  whose 
charter   did    not    specify   the   width 


^  1224 


RAILROADS 


-66 


ticipated  necessities  of  the  company  in  the  future.®^  Where  a 
particular  method  is  pointed  out  for  determining  how  much  land 
is  necessary,  as  by  resolution  of  the  directors,""  or  by  the  report 
of  the  commissioners  to  assess  damages,'-''  that  method  must  be 
followed,  and  the  company  can  acquire  no  right  to  land  by  con- 
demnation until  the  necessity  for  such  acquisition  has  been 
duly  ascertained  and  declared.^^  In  general,  however,  the  com- 
pany is  permitted  a  reasonable  discretion  in  determining  how 
much  land  is  necessary"^  subject  to  the  right  of  the  court  to  set 
aside  an  inquisition  for  a  clear  abuse  of  this  discretion.^  If  the 
company  is  given  a  general  authority  to  take  the  necessary  lands 
for  a  right  of  way,  the  width  taken  may  vary  in  different  localities 
according  to  the  necessities  of  the  company.-     Tn  a  case  where 


of  its  right  tif  way  was  held  to 
include  so  much  land  as  was  rea- 
sonably necessary.  Day  v.  Rail- 
road Co.,  41  Ohio  St.  392.  A  com- 
pany has  the  same  right  to  con- 
demn land  over  which  to  swing  a 
gate  which  it  is  compelled  to  main- 
tain as  it  has  to  condemn  land 
necessary  for  the  construction  of 
its  track. 

^'■^^Staten  Island  R.  T.  Co.,  Mat- 
ter of,  103  N.  Y.  251,  8  N.  E.  548; 
Lodge  V.  Philadelphia  &c.  R.  Co., 
8  Phila.  (Pa.)  345;  Pennsylvania 
R.  Co.  V.  National  Docks  &c.  Co.. 
57  N.  J.  L.  86,  30  Atl.  183;  Kountze 
V.  Propr's.  Morris  Aqueduct,  58  N. 
J.  L.  303,  33  Atl.  252;  St.  Louis  &c. 
R.  Co.  V.  Foltz,  52  Fed.  627,  633. 

"6  Stringham  v.  Oshkosh  &c.  R. 
Co.,  33  Wis.  471. 

9^  Carolina  &c.  R.  Co.  v.  Love, 
81   N.  Car.  434. 

^8  Johnston  v.  Chicago  &c.  R. 
Co.,  58  Iowa  537,  12  N.  W.  576; 
Carolina  Central  R.  Co.  v.  Love, 
81  N.  Car.  434;  Kemp  v.  South 
Eastern  R.  Co.,  L.  R.  7  Ch.  364. 
But    see    Chicago    &c.    R.    Co.    v. 


Dunbar,  100  111.  110;  National 
Docks  R.  Co.  V.  Central  R.  Co., 
32  N.  J.  Eq.  755;  State  v.  Stewart, 
74  Wis.  620,  43  N.  W.  947,  6  L.  R. 
A.  394. 

'"'  Smith  v.  Chicago  &c.  R.  Co., 
105  111.  511;  Zircle  v.  Southern  R. 
Co..  102  Va.  17,  45  S.  E.  802,  102 
Am.  St.  805  and  note.  As  to  the 
power  of  the  railroad  to  judge  of 
the  necessity  of  taking  land,  see 
New  York  Central  &c.  R.  Co.,  In 
re,  v.  Metropolitan  &c.  Co.,  63  N. 
Y.  326;  Boston  &c.  R.  Co.,  In  re, 
V.  Kip,  53  N.  Y.  574;  New  Orleans 
&c.  R.  Co.  V.  Gay,  32  La.  Ann.  471: 
ante.  §  1195. 

1  Chesapeake  &c.  Canal  Co.  v. 
^lason,  4  Cranch  (U.  S.  C.  C.) 
123;  Webb  v.  Manchester  &c.  R. 
Co.,  4  M.  &  Cr.  116. 

2  Chicago  &c.  R.  Co.  v.  People, 
4  Bradw.  (111.)  468.  The  company 
is  not  obliged  to  take  the  maximum 
width  permitted  by  statute.  Jones 
V.  Erie  &c.  R.  Co.,  169  Pa.  St.  333, 
32  Atl.  535,  47  Am.  St.  916;  Indian- 
apolis &c.  R.  Co.  V.  Rayl.  69  Ind. 
424.     But  it  is  held  that  if  it  takes 


r67 


APPHOPKIATIOX    CXDF:!?    THE    EMINENT   DOMAIN' 


§1225 


land  was  conveyed  by  a  land-owner  for  full  \.alue  to  a  railroad 
company  for  a  right  of  way,  the  land-owner  reserving  a  ferry 
landing  and  a  private  right  of  way,  it  was  held  that  the  company 
could,  under  a  statute  giving  the  railroad  company  power  to  en- 
large and  otherwise  improve  the  whole  or  any  portion  of  its 
road,  condemn  both  the  ferry  landing  and  the  reserved  right  of 
way.^  It  is  not  necessary  that  a  railroad  company  could  locate 
its  tracks  in  the  middle  of  its  right  of  way,  whether  acquired  by 
condemnation'  or  by  purchase  or  voluntary  grant."'  Where  the 
maximum  width  is  prescribed,  the  presumption  will  l)e  indulged 
that  the  full  width  allowed  was  taken  unless  the  contrary  alTirm- 
ali\ely  appears." 

§  1225  (974).  Taking  right  of  way  of  another  road — When 
not  allowed. — Where  the  statute  confers  only  a  general  authoritv 
to  condemn  property  for  railroad  purposes  land  appropriated  by 
a  railroad  company  for  public  use  can  not  afterwards  be  ap- 
propriated by  another  company  for  a  similar  use  where  the  two 
can  not  coexist,  except  in  case  of  a  necessity  so  absolute  that 
without  such  appropriation  the  grant  to  the  latter  company  will 
be  defeated,  a  necessity  arising  from  the  very  nature  of  things, 
over  which  the  company  has  no  control,  not  one  created  by  the 
company  itself  for  the  sake  of  convenience  or  economy.''     As  a 


less  it  can  not  subsequently  con- 
demn more  as  against  a  rival  com- 
pany wliich  has  purchased  the  land 
in  question.  Joplin  &c.  R.  Co.  v. 
Kansas  City  &c.  R.  Co.,  135  Mo. 
549,  Zl  S.  W.  540. 

3  Kenny  v.  ^Pittsburg  &c.  R.  Co., 
208  Pa.  30,  57  At).  74. 

*  Stark  V.  Sioux  City  &c.  R.  Co., 
43  Iowa  501;  Dougherty  v.  Wa- 
bash &c.  R.  Co.,  19  ]\ro.  App.  419. 

5  Munkers  v.  Kansas  City  &c.  R. 
Co..  60  Mo.  334. 

«  Prather  v.  Western  Union  Tel. 
Co.,  89  Ind.  501:  Jones  v.  Erie  &c. 
R.  Co.,  144  Pa.  St.  629,  23  Atl.  251; 
Duck  River  Vallev  R.  Co.  v.  Coch- 


rane, 3  Lea  (Tenn.)  478;  Day  v. 
Railroad  Co.,  41  Ohio  St.  392.  In 
an  action  for  damages  from  fire 
set  bj'  the  company's  engines,  the 
width  of  the  right  of  way  as  held 
and  claimed  by  the  company,  not 
exceeding  the  full  statutory  width 
may  be  shown  by  parol  evidence. 
Gram  v.  Northern  Pac.  R.  Co  ,  1 
N.  Dak.  252,  45  Am.  &  Eng.  R. 
Cas.  544. 

"  South  Dakota  &c.  R.  Co.  v. 
Chicago  &c.  R.  Co.,  141  Fed.  578; 
Evergreen  Cemetery  Assn.  v.  New 
Haven,  43  Conn.  234,  21  Am.  Rep. 
643;  Housatonic  R.  Co.  v.  Lee  & 
Hudson    River    R.   Co.,    118    Mass. 


§1225 


RAILROADS 


768 


general  rule,  under  such  authority,  a  corporation  will  not  be  per- 
mitted to  condemn  property  already  devoted  to  the  public  use 
for  any  purpose  wholly  inconsistent  with  such  use.  This  rule 
seems  particularly  applicable  where  one  company  is  seeking  to 
condemn  and  take  the  right  of  way  of  another  company  longitud- 
inally/ Thus,  it  has  been  held  that  one  railroad  company  can 
not  appropriate  a  portion  of  the  right  of  way  of  another  railroad 
company  for  the  purpose  of  l)uil(ling  a  parallel  road.^     Nor  will 


391:    Boston   &c.   R.   Co.  v.   Lowell 
&c.  R.  Co.,  124  :\lass.  368;   Boston 
&  Albany  R.  Co.,  Matter  of,  53  N. 
Y.    574;    Cincinnati    &c.    R.    Co.    v. 
Belle    Centre,   48   Ohio    St.   273,  27 
N.    E.    464;    Pennsylvania    R.    Co.'s 
Appeal,  93  Pa.  St.  150;  Pittsburgh 
Junction   Co.'s  Appeal,   122  Pa.   St. 
511,  6  Atl.  564,  9  Am.  St.  128.     Ap- 
peal of  Sharon  R.  Co.,  122  Pa.  St. 
533,    17   Atl.   234,   9   Am.    St.    133; 
Mays  V.  Seaboard  Air  Line  R.  Co.. 
75  S.  Car.  455,  56  S.  E.  455:  Barrc 
R.    Co.   V.    :\Iontpclicr    &c.    R.    Co., 
61  Vt.  1,  17  Atl.  923,  4  L.  R.  A.  785, 
15   Am.    St.   886.      See   also    Sabine 
&c.   R.  Co.  V.   Gulf   &c.   R.   Co.,  92 
Tex.  162,  46  S.  W.  784.     It  is  said, 
however,    that    "necessity"    for    the 
condemnation   of  the   riprht   of  way 
of    one    railroad    company    for    the 
use   of   another   docs   not   mean   an 
absolute  or  indispensable  necessity, 
but  that  which  is  reasonably  requi- 
site   and    proper    for    the    accom- 
plishment of  the  end  in  view  under 
the  particular  circumstances.     Such 
condemnation    is    necessary    when, 
the  public  convenience  being  equal- 
ly served,  the  financial  benefits  to 
the  latter  exceed  the  probable   in- 
juries  to  the  former.      Mobile   &c. 
R.  Co.  V.  Alabama  Midland  R.  Co., 
87  Ala.   501,  6   So.  404,  39  Am.   & 
Eng.  R.  Cas.  6.     In  the  case  first 


oiled  it  was  iield  tliat  tlie  construc- 
tion of  a  branch  road  wliich  is  but 
an  incident  to  the  main  object  of 
llie  railroad,  which  is  already  con- 
structed, merely  for  the  purpose 
of  carrying  its  own  freight  to  and 
from  certain  furnaces,  instead  of 
receiving  it  from  and  turning  it 
over  to  anotlicr  company,  is  not  a 
matter  of  such  necessity  as  will 
autliorize  a  condemnation  therefor 
of  land  alreadj'  acquired  for  rail- 
road purposes  by  another  com- 
l)any.  Appeal  of  Sharon  Railway, 
122  Pa.  St.  533.  17  .\tl.  234,  9  Am. 
St.  133  and  note.  See  also  Evans- 
ville  &c.  Traction  Co.  v.  Hender- 
son Bridge,  134  Fed.  973,  978  (cit- 
ing text). 

s  Ante,  §  1130,  and  authorities 
tliere  cited;  also  South  Dakota 
Cent.  R.  Co.  v.  Chicago  &c.  R.  Co., 
141  Fed.  578,  584:  Chattanooga  &c. 
Terminal  R.  Co.  v.  Felton,  69  Fed. 
273:  Indianapolis  &c.  R.  Co.  v. 
Indianapolis  &c.  Transit  Co.,  33 
Tnd.  App.  337.  67  N.  E.  1013. 

^  Illinois  Cent.  R.  Co.  v.  Chicago 
&c.  R.  Co..  122  111.  473,  13  N.  E. 
140.  See  Lake  Shore  &c.  R.  Co. 
V.  Cincinnati  .&c.  R.  Co.,  116  Ind. 
578.  19  N.  E.  440.  And  see  gener- 
ally as  to  longitudinal  or  parallel 
lines.  Davis  v.  East  Tenn.  &c.  R. 
Co.,  87  Ga.  605,  13  S,  E.  567;  Chi- 


769 


AI'lMtOPRI ATION    UNDER    TIIK    EMINENT    DOMAIN 


§  1225 


one  railroad  company  be  permitted  for  any  purpose  to  take  such 
a  part  of  the  line  of  another  road  as  to  practically  destroy  such 
road.^°  And  courts  should  give  due  consideration  to  the  ques- 
tion of  the  future  needs  of  a  railroad  in  fulfilling  its  chartered 
purpose  and  performing  its  public  duty  as  a  common  carrier  be- 
fore they  undertake  to  deprive  a  railroad  company  of  any  j^art  of 
its  right  of  way  at  the  instance  of  another  corporation.^^  Where 
a  petition  by  a  railroad  company  for  the  appointment  of  com- 
missioners to  condemn  the  "located  route"  of  an  existing  rail- 
road shows  that  it  seeks  to  condemn  a  part  of  the  route  gen- 
erally, and  not  merely  for  the  purpose  of  crossing,  an  order  made 
thereon  w'ill  be  set  aside. ^^  And  where  a  railroad  corporation  is 
seeking  to  condemn  a  longitudinal  section  of  the  right  of  way  of 


cago  &c.  Electric  R.  Co.  v.  Chicago 
&c.  R.  Co.,  211  III.  352,  71  N.  E. 
1017;  Indianapolis  &c.  R.  Co.  v. 
Indianapolis  &c.  Transit  Co.,  33 
Ind.  App.  337,  67  N.  E.  1013; 
Northern  Cent.  R.  Co.  v.  Balti- 
more, 46  Md.  425;  Housatonic  R. 
Co.  V.  Lee  &c.  R.  Co.,  118  Mass. 
391 ;  State  v.  Easton  &c.  R.  Co., 
36  N.  J.  L.  181;  Oregon  Cascade 
R.  Co.  V.  Bailey,  3  Ore.  164;  Alex- 
andria &c.  R.  Co.  V.  Alexandria 
&c.  R.  Co.,  75  Va.  780,  40  Am.  Rep. 
743. 

^"  Central  City  Horse  Ry.  v.  Fort 
Clark  Horse  Ry.,  81  111.  523.  The 
right  to  take  longitudinally  is 
strictly  construed,  and  can  only  be 
justified  by  peculiar  circumstances. 
Boston  &c.  R.  Co.  v.  Lowell  &c. 
R.  Co.,  124  ALiss.  368;  Housatonic 
R.  Co.  V.  Lee  &c.  R.  Co.,  118  Mass. 
391:  Worcester  &c.  R.  Co.  v.  Rail- 
road Comrs.,  118  Mass.  561;  At- 
torney-General V.  Morris  &c.  R. 
Co..  19  N.  J.  Eq.  386;  Newark  &c. 
R.  Co.  V.  Newark,  23  N.  J.  Eq. 
515;  Greenwich  Tp.  v.  Easton  &c. 
R.   Co.,  24  N.  J.  Eq.  217;    Easton 


&c.  R.  Co.  V.  Inhabitants  &c.,  25 
N.  J.  Eq.  565;  State  v.  Hoboken, 
35  N.  J.  L.  205;  State  v.  Easton 
&c.  R.  Co.,  36  N.  J.  L.  181;  Buffalo, 
In  re,  68  N.  Y.  167;  Commission- 
ers V.  Erie  &c.  R.  Co.,  27  Pa.  St. 
339,  67  Am.  Dec.  471  and  note; 
Cleveland  &c.  R.  Co.  v.  Speer,  56 
Pa.  St.  325,  94  Am.  Dec.  84;  Cake 
V.  Philadelphia  &c.  R.  Co.,  87  Pa. 
St.  307;  Tennessee  &c.  R.  Co.  v. 
Adams,  3  Head  (Tenn.)  596.  Con- 
tra Costa  R.  Co.  V.  Moss,  23  Cal. 
323;  Attorney-General  v.  Ely  &c. 
R.  Co.,  L.  R.  4  Ch.  App.  194,  L.  R. 
9  Eq.  Cas.  106;  Pugh  v.  Golden 
Valley  R.  Co.,  L.  R.  12  Ch.  Div. 
274;  Regina  v.  Wycombe  R.  R.  L. 
R.  2  Q.  B.  310. 

11  Western  Union  Tel.  Co.  v. 
Pennsylvania  R.  Co.,  120  Fed.  362. 
affirmed  in  123  Fed.  33. 

12  United  N.  J.  R.  and  Canal  Co. 
V.  National  Docks  &c.  R.  Co.,  52 
N.  J.  L.  90,  18  Atl.  574.  See  John- 
son V.  Freeport  &c.  R.  Co.,  116 
111.  521.  6  N.  E.  211;  Brown  v. 
Rome  &c.  R.  Co.,  86  Ala.  206,  5 
So.  195. 


§  1--6 


RAILROADS 


770 


another  company  for  its  exclusive  use.  it  may  be  restrained  l)y 
injunction  unless  express  authority  to  make  such  condemnation 
has  been  conferred.'^  But  in  Alabama,  the  probate  court,  in  a 
{•roper  proceeding  and  upon  proper  notice,  has  jurisdiction  to 
inquire  of  and  condemn  a  part  of  a  right  of  way,  already  acquired 
by  one  railroad  corporation,  for  the  use  of  another,  if  it  can  be 
done  without  destroying  its  usefulness  as  a  franchise,  or  impair- 
ing the  capacity  of  the  easement  so  as  to  render  it  unsafe,  but 
that  court  has  no  jurisdiction  to  condemn  the  road  bed  of  one 
company  for  the  use  of  another.  To  accomplish  this,  an  express 
act  of  the  legislature  would  be  required.^* 

§  1226.  Where  such  taking  is  allowed. — It  is  said  that  if  the 
proposed  appropriation  of  the  property  of  one  railroad  corpora- 
tion by  another  would  not  destroy  or  greatly  injure  the  franchise 
of  such  other  company,  or  render  it  difficult  to  prosecute  the 
object  thereof,  a  general  grant  of  authority  is  sufficient  to  justify 
the  condemnation. ^"^     Thus  it  has  been  held  that  a  small  portion 


13  Alexandria  &c.  R.  Co.  v.  Al- 
exandria &c.  R.  Co.,  75  Va.  780,  40 
Am.  Rep.  743  and  note.  See  also 
Hoke  V.  Georgia  &c.  R.  Co.,  89 
Ga.  215,  IS  S.  E.  124.  But  see 
Mobile  &c.  R.  Co.  v.  Alabama 
Midland  R.  Co.,  87  Ala.  520,  6  So. 
407.  A  company  which  is  pro- 
ceeding in  good  faith  to  acquire 
land  and  construct  its  road  may- 
enjoin  another  company  from 
building  a  switch  along  and  upon 
its  proposed  line  upon  land  of 
which  it  has  procured  a  lease  ma- 
liciously and  in  bad  faith  and  for 
the  sole  purpose  of  harassing  and 
delaying  the  petition.  Rochester 
&c.  R.  Co.  V.  New  York  &c.  R. 
Co.,  44  Hun  (N.  Y.)  206;  Rochester 
&c.  R.  Co.  V.  Babcock,  110  N.  Y. 
119,  17  N.  E.  678. 

^•*Anniston  &c.  R.  Co.  v.  Jack- 
sonville  &c.    R.  Co.,  82  Ala.  297,  2 


So.  710.  If  a  second  condemnation 
can  be  so  carved  out  of  a  right  of 
way  previously  granted  to,  another 
railroad  company  as  to  leave  the 
latter's  tracks  without  such  hind- 
rance or  obstruction  as  to  render 
it  unsafe,  the  court  has  jurisdiction 
to  order  the  condemnation,  and  an 
injunction  will  not  lie.  Mobile  &c. 
R.  Co.  V.  Alabama  Midland  R.  Co., 
87  Ala.  520,  6  So.  407,  39  Am.  & 
Eng.  R.  Cas.  117. 

^^  Enfield  Toll  Bridge  Co.  v. 
Hartford  &c.  R.  Co.,  17  Conn.  40, 
42  Am.  Dec.  716  and  note;  Atchi- 
son &c.  R.  Co.  V.  Kansas  City  &c. 
R.  Co.,  67  Kans.  569,  70  Pac.  939; 
Little  Miami  R.  Co.  v.  Dayton,  23 
Ohio  St.  510;  Tuckahoe  Canal  Co. 
V.  Tuckahoe  R.  Co.  11  Leigh  (Va.) 
42,  36  Am.  Dec.  374;  Seattle  &c.  R. 
Co.  V.  Billingham  Bay  &c.  R.  Co., 
29  Wash.  491,  69  Pac.   1107;  State 


71 


Al'I'KOl'RIATION"     rXDCK    TlIK    KMIXKXT    DOMAIN 


§  1226 


ci  the  buttress  of  a  l)ridge  bclong-ing-  to  one  railroad  company 
and  not  necessary  to  the  support  of  the  bridge  or  the  exercise  of 
the  company's  franchises  may  be  taken  l:)y  another  railroad  com- 
pany.^'' So  where  land  owned  by  a  railroad  company  was  not 
used  by  it  and  by  reason  of  its  small  area  and    shape    it    was 


V.  Superior  Court  of  Clarke  County, 
45  Wash.  316,  88  Pac.  332;  Balti- 
more &c.  R.  Co.  V.  Pittsburg  &c. 
R.  Co.,  17  W.  Va.  812. 

16  Baltimore  &c.  R.  Co.  v.  Pitts- 
burg &c.  R.  Co.,  17  W.  Va.  812.  In 
this  case,  Johnson,  J.,  speaking  for 
the  court  said:  "There  is  nothing 
so  sacred  in  the  title  of  a  railroad 
companj'  to  property  that  it  can 
not  be  taken  under  the  exercise 
of  the  right  of  eminent  domain. 
I  understand  the  law  to  be  that 
property  belonging  to  a  railroad 
company  and  not  in  actual  use, 
necessary  to  the  proper  exercise  of 
the  franchise  thereof,  may  be  taken 
for  the  purposes  of  another  rail- 
road under  the  general  railroad  law 
of  the  state.  An  express  legisla- 
tive enactment  is  generally  required 
in  order  to  take  such  property  in 
use  by  a  railroad  company,  except 
where  the  proposed  appropriation 
would  not  destroy  or  greatly  injure 
tlie  franchise  of  the  company,  or 
render  it  difficult  to  prosecute  the 
object  thereof.  If  such  consequence 
would  not  follow,  a  genera!  grant 
is  sufficient.  Enfield  Toll  Bridge 
Co.  V.  Hartford  &c.  R.  Co.,  17  Conn. 
40,  42  Am.  Dec.  716  and  note;  Lit- 
tle Miami  R.  Co.  v.  Dayton.  23 
Ohio  St.  510;  Tuckahoe  Canal  Co. 
V.  Tuckahoe  R.  Co.,  11  Leigh  (Va.) 
42,  36  Am.  Dec.  374.  In  Grand 
Rapids  &c.  R.  Co.  v.  Grand  Rapids 
&c.  R.  Co.,  35  Mich.  265,  24  Am. 
Rep.  545  and  note,  it  was  held  that 


one  railroad  has  no  right  to  appro- 
priate, without  compensation,  the 
franchise  or  property  of  another 
for  the  construction  of  its  road. 
The  fact  that  property  has  been 
taken  for  a  particular  public  use 
does  not  make  it  public  property 
for  all  purposes;  and  the  property 
rights  of  a  railroad  company  in  its 
right  of  way  are  protected  by  the 
same  restrictions  against  appropri- 
ation by  any  other  railroad  com- 
pany for  railroad  purposes  or  other 
public  use,  as  is  afforded  by  the 
constitution  and  laws  in  the  case 
of  the  private  property  of  an  indi- 
vidual. Baltimore  &  Havre  de 
Grace  Transportation  Co.  v.  Union 
R.  Co.,  35  Md.  224,  6  Am.  Rep.  397. 
It  is  insisted  by  counsel  for  plain- 
tiff in  error  that  where  a  corpora- 
tion is  authorized  by  its  charter  or 
a  general  law  to  take  by  condem- 
nation the  land  required  for  its 
purposes,  it  can  not,  under  such 
general  authority,  condemn  prop- 
erty already  appropriated  to  pub- 
lic use  by  another  corporation;  that 
to  authorize  it  to  do  so,  the  power 
must  be  granted  to  it  by  express 
terms  or  by  necessary  implication. 
For  this  position  they  rely  upon 
Boston  &  M.  R.  Co.  v.  Lowell  & 
L.  R.  Co.,  124  Mass.  368;  Housa- 
tonic  R.  Co.  v.  Lee  &  Hudson 
River  R.  Co.,  118  N.  Y.  391;  Ever- 
green Cemetery  Assn.  v.  New 
Haven,  43  Conn.  234,  21  Am.  Rep. 
643;  Boston  &c.  R.  Co.,  Matter  of. 


§1226 


1{AILR()ADS 


wholly  unsuitable  for  yard  purposes,  for  which  purposes  the 
road  claimed  it  to  be  valuable,  it  was  held  that  another  railroad 
was  entitled  to  condemn  a  ris^ht  of  way  across  the  land,  wdiere 
it  did  not  appear  that  other  and  equally  practicable  rig;hts  were 
open  to  the  condemning  company. ^^  The  legislature  may,  in 
cases  wdicre  it  is  deemed  necessary,  provide  for  the  condemnation 
by  one  railroad  corporation  of  the  right  to  use  a  portion  of  the 
right  of  Avay  of  the  railroad  of  another  corporation  in  common 
with  the  owner  thcreof.^^  And  when  such  provision  is  made,  the 
right  of  raihvay  companies  to  use  the  "right  of  w^ay"  of  another 
company,  includes  the  right  to  use  the  tracks,  switches,  turn-outs, 
turn-tables,  and  other  terminal  facilities  constructed  on  the  right 
of  way.^® 


53  N.  Y.  574;  Buffalo,  Matter  of, 
68  N.  Y.  167 It  will  be  ob- 
served, that  in  these  last  cases  the 
interference  with  the  franchise  was 
great,  and  much  injury  would  have 
been  sustained  by  tlic  companies, 
if  their  property  liad  been  taken. 
But  the  taking  of  a  portion  of  a 
buttress  might  inflict  no  injury  at 
all  upon  the  Baltimpre  and  Ohio 
Railroad  Co.  The  courts  will  take 
care  to  see  that  one  railroad  com- 
pany is  not  materially  injured  for 
the  benefit  of  another,  and  where 
no  such  material  injury  will  result, 
the  onward  march  of  improvement 
demands  that  a  great  work  of  in- 
ternal improvement  shall  not  be 
impeded  by  imaginary  injury  to  an- 
other corporation."  The  section  of 
the  Washington  code  authorizing 
the  appropriation  by  a  railroad  of 
a  longitudinal  section  of  an  exist- 
ing right  of  way  through  canyons, 
passes  and  defiles,  is  held  not  to 
exclude  the  appropriations  of  an 
existing  right  of  wa}'  in  all  other 
cases.  It  follows  that  one  railroad 
may,   when    necessary,   condemn   a 


right  of  way  through  the  right  of 
way  of  another  railroad  not  in  use 
for  railroad  purposes,  and  not  nec- 
essary for  the  corporation  fran- 
chise. Seattle  &c.  R.  Co.  v.  Bil- 
lingham  Bay  &c.  R.  Co.,  29  Wash. 
491,  69  Pac.  1107. 

I'''  Memphis  &c.  R.  Co.  v.  Union 
R.  Co.,  116  Tenn.  500,  95  S.  W. 
1019. 

18  Kinsman  St.  R.  Co.  v.  Broad- 
way &c.  R.  Co.,  36  Ohio  St.  239; 
Cambridge  R.  Co.  v.  Charles  River 
St.  R.  Co.,  139  Mass.  454,  1  N.  E. 
925;  Metropolitan  R.  Co.  v.  High- 
land St.  R.  Co.,  118  Mass.  290; 
Providence  &c.  R.  Co.  v.  Norwich 
&c.  R.  Co.,  138  Mass.  277.  See 
Boston  Water  Power  Co.  v.  Boston 
&c.  R.  Co.,  23  Pick.  (Mass.)  360; 
.Springfield  v.  Connecticut  &c.  R. 
Co.,  4  Cush.  (Mass.)  63;  Bridge- 
port V.  New  York  &c.  R.  Co.,  36 
Conn.  255,  4  Am.  Rep.  63;  Rutland 
Canadian  R.  Co.  v.  Central  Vt.  R. 
Co.,  72  Vt.  128,  47  Atl.  399. 

i"Joy  V.  St.  Louis.  138  U.  S.  1, 
II  Sup.  Ct.  243,  34  L.  ed.  843,  af- 
firming 29  Fed.  546.    Laying  tracks 


778 


APIMJOI'HIATION     rXDKK    TIIK    KMIXEXT    DOMAIN  §  1227 


§  1227  (975),  Crossing  another  road. — Although,  as  else- 
where shown,  the  crossing  hy  a  street  railway  of  the  tracks  of  a 
commercial  or  steam  railroad  company  at  a  street  intersection  is 
not  a  taking  or  an  additional  burden,-"  the  rule  is  somewhat 
different  where  one  commercial  railroad  crosses  another.-^  But. 
as  we  haye  seen,  the  right  of  one  railroad  to  cross  the  tracks  of 
another  may  be  implied  from  a  general  grant  of  authority  to 
locate  and  build  the  road  between  two  points.--  And  it  has  been 
held  that  a  reasonable  and  a  practicable  crossing  of  one  railroad 
track  by  another  will  be  allowed,  if  it  be  in  the  interest  of  the 
public,   though   there   is  no  statute   specially   allowing  the   con- 


upcMi  the  location  of  a  railroad,  or 
using  its  rails  for  the  running  of 
trains,  under  authority  of  law  has 
been  held  to  be  a  taking  within  the 
meaning  of  the  constitution  for 
which  compensation  must  be  made. 
Worcester  &c.  R.  Co.  v.  Railroad 
Comrs.,  118  Mass.  561;  Jersey  City 
&c.  R.  Co.  V.  Jersey  City  Horse 
R.  Co.,  20  N.  J.  Eq.  61.  See  Lex- 
ington &c.  R.  Co.  V.  Fitchburg  R. 
Co.,  14  Gray  (Mass.)  266;  Sixth 
Avenue  R.  Co.  v.  Kerr,  45  Barb. 
(N.  Y.)  138.  See  also  as  to 
whether  this  is  an  additional  bur- 
den for  which  the  landowner  is 
entitled  to  compensation.  Miller  v. 
Green  Bay  &c.  R.  Co.,  59  :\Iinn. 
169,  60  N.  W.  1006,  11  Am.  R.  & 
Corp.  Rep.  246  and  note.  A  muni- 
cipality which  has  permitted  a 
railroad  company  to  construct  and 
maintain  a  railroad  track,  depots, 
and  appurtenances,  within  the  mu- 
nicipal district,  and  extended  to  it 
other  privileges  in  consideration 
of  an  agreement  on  the  part  of  the 
company  that  it  should  permit  any 
other  company  whose  road  termi- 
nated within  the  municipality  to 
use    the    track    and    appurtenances 


and  to  cnjoj-  the  rights  and  privi- 
leges secured  by  the  agreement, 
upon  payment  of  a  pro  rata  share 
of  the  cost  of  construction,  may 
enforce  the  contract  in  such  a  man- 
ner as  to  give  to  the  public  the 
greatest  convenience  and  enable  it 
to  reap  the  greatest  results,  and  a 
company  can  not  be  excluded  from 
participation  in  the  use  and  enjoy- 
ment of  the  track  on  payment  of 
its  pro  rata  share  of  construction, 
where  it  appears  its  admission 
would  not  overburden  the  line,  but 
it  is  in  fact  using  it  and  paying 
tolls  therefor.  I^ouisville  &c.  R, 
Co.  V.  ^lississippi  &c.  R.  Co..  92 
Tenn.  681. 

20  Post,  §  1234.  note  87. 

21  Post,  §  1606. 

22  Ante,  §  1130.  See  also  Union 
Pac.  R.  Co.  V.  Burlington  &c.  R. 
Co..  1  McCr.  (U.  S.)  452:  East  St. 
Louis  Connecting  R.  Co.  v.  East  St. 
Louis  Union  R.  Co..  108  111.  265: 
Minneapolis  &c.  R,  Co.  v.  Chicago 
&c.  R.  Co.,  116  Iowa  681,  88  N.  W. 
1082;  Lehigh  Valley  R,  Co.  v.  Do- 
ver &c.  R.  Co.,  43  N,  J.  L.  528: 
Boston  &c.  R.  Co.,  Matter  of,  79 
N.    Y.    64;    Pennsvlvania    R.    Co.'s 


^  1"' 


RAILROADS 


774 


demnation  of  one  railroad  by  another.-^  The  test  in  such  cases 
is  said  to  be  necessity  and  the  pubhc  interest.-*  Thus,  where  a 
proposed  spur  track  was  intended  for  the  transfer  of  freight  in 
carloads  to  and  from  manufacturing  establishments  in  a  town 
and  its  use  was  open  to  the  public,  it  was  held  that  the  railroad 
company  building  the  track  had  the  right  to  condemn  necessary 
crossings  over  spur  tracks  belonging  to  other  companies.-"'  This 
entire  subject,  however,  including  the  question  as  to  what  jjrop- 
erty  ma}-  be  taken, -"^  the  location  of  the  crossing,-"  the  number  of 
crossings  that  may  be  made.-^  the  measure  of  damages,-''  and  the 
right  to  cross  at  grade,^''  is  fully  treated  elsewhere. ^^  But  to 
what  is  there  said,  we  may  add  that  it  is  within  the  police  power 
of  the  state  to  abolish  dangerous  grade  crossings,  and  it  has  been 
held  that  an  act  requiring  the  railroad  company  to  bear  the  entire 
expense  of  the  change  does  not  amount  to  a  taking  of  property 
v.-ithout  due  process  of  law,  where  the  mode  provided  for  ascer- 
taining the  result  is  suitable  to  the  nature  of  the  case.^- 


Appeal,  93  Pa.  St.  150;  Wellsburg 
&c.  R.  Co.  V.  Pan  Handle  Traction 
Co.,  56  W.  Va.  18,  48  S.  E.  746. 
See  as  to  when  railroad  which  has 
located  the  best  line  between  its 
terminals  is  entitled  to  restrain  an- 
other road  which  with  full  knowl- 
edge, has  threatened  to  occupy  and 
recross  the  location  of  the  former 
at  many  points,  Denver  &c.  R.  Co. 
V.  Arizona  &c.  R.  Co.,  233  U.  S. 
601,  34  Sup.  Ct.  691,  58  L.  ed.  1111. 

23  Houston  &c.  R.  Co.  v.  Kansas- 
City  &c.  R.  Co.,  109  La.  581,  33  So. 
609. 

24  Houston  &c.  R.  Co.  v.  Kansas 
City  &c.  R.  Co.,  109  La.  581,  33  So. 
609. 

25  Kansas  City  &c.  R.  Co.  v. 
Louisiana  Western  R.  Co.,  116  La. 
178,  40  So.  627,  5  L.  R.  A.  (N.  S.) 
512.  Other  cases  are  to  the  same 
effect.  East  St.  Louis  R.  Co.  v. 
East  St.  Louis  &c.  R.  Co.,  108  111. 


265;  Toledo  &c.  R.  Co.  v.  East  Sag- 
inaw &c.  R.  Co.,  72  Mich.  206,  40 
N.  \\'.  436. 

26  Post.  §  1600. 

2- Post,  §   1599. 

28  Post,  §  1604. 

20  Post,  §  1607. 

30  Post,  §§  1601,  1603. 

31  Post,  Chapter  XLVL 

32  New  York  &c.  R.  Co.  v.  Bris- 
tol, 151  U.  S.  556,  14  Sup.  Ct.  437, 
38  L.  cd.  269,  9  Am.  R.  &  Corp. 
Rep.  593:  New  York  &c.  R.  Co.'s 
Appeal,  58  Conn.  532,  20  Atl.  17. 
See  also  Otis  Elevator  Co.  v.  Chi- 
cago, 263  111.  419,  105  N.  E.  338, 
52  L.  R.  A.  (N.  S.)  192,  notes  in 
28  L.  R.  A.  (N.  S.)  298,  L.  R.  A. 
1915E,  757;  Minnesota  ex  rel.  Clara 
City  V.  Great  Northern  R.  Co., 
130  Minn.  480,  153  N.  W.  879,  af- 
firmed in  Great  Northern  R.  Co. 
V.  Minnesota,  246  U.  S.  434,  38  Sup. 
Ct.   346,   62   L.   ed.  817    (state   may 


<7i) 


AI'I'Kol'KI A'i'loX     INDKIJ    TlIK    1;.MIM:N"I'    l>().\r\l.\' 


§  1228 


§  1228  (975a).  Condemnation  of  right  of  way  for  other  pur- 
poses— Highways. —  ihc  authority  of  a  imniicipaHty  to  extend  a 
])ul)lic  street  or  hiiihway  across  a  railroad  right  of  way,  is  im- 
plied in  the  general  grant  of  power  to  lay  out  and  establish 
streets  and  highways  in  cases  where  such  action  w'ill  not  inter- 
fere with  the  proper  operation  of  the  railroad.  If,  however,  the 
use  of  the  railroad  property  for  railway  purposes  will  be  essen- 
tially impaired  or  destroyed  by  the  establishment  of  the  highway, 
then  express  legislative  authority  to  so  extend  the  street  is 
necessary. ^^  And  the  case  against  this  enforced  appropriation 
would  seem  particularly  strong  where  the  railroad  property  is 
used  for  station  grounds  and  yards.^*  It  has  been  held  that  a 
city  condemning  a  railroad  right  of  way  for  the  extension  of  a 
public  street  across  it,  acquires  only  a  joint  right  with  the  rail- 
road company  for  the  use  of  the  land  condemned.  Its  interest  is 
usually  merely  an  easement,  and  it  has  been  held  that  it  can  not 
deprive  the  company  of  the  right  to  lay  as  many  additional  tracks 
on  the  right  of  way  as  the  increase  of  business  may  require,  pro- 
\'ided  it  keeps  that  portion  occupied  by  the  street  free  and  open 


compel  railroad  to  construct  side- 
walk over  its  crossing).  It  has 
also  been  held  that  an  operating 
railroad  by  changing  its  grade  or 
putting  in  double  tracks  does  not 
thereby  become  the  junior  road  in 
relation  to  anotiier  road,  construct- 
ed after  its  own,  whose  tracks 
cross  its  right  of  waj',  so  as  to 
impose  on  the  former  the  burden 
of  paying  the  cost  of  a  new  cross- 
ing. Chicago  &c.  R.  Co.  v.  Old 
Colony  Trust  Co.,  216  Fed.  577. 

33  Minneapolis  &c.  R.  Co.  v.  Hart- 
land,  85  Minn.  l(y,  88  N.  W.  423. 
See  also  ante,  §  1213.  and  numer- 
ous cases  there  cited.  And  see 
generally  1  Elliott  Roads  &  Streets 
(3rd  ed.),  §§  248.  249:  Louisville 
&c.  R.  Co.  v.  Louisville,  131  Ky. 
108,    114   S.    W.    743.   24    L.    R.   A. 


(X.  S.)  1213  and  note.  Under  a 
Massachusetts  statute  providing 
for  the  laying  out  of  roads  on  peti- 
tion of  the  county  commissioners, 
a  road  can  be  laid  out  over  land 
of  the  railroad  company  outside 
of  the  line  of  its  road,  and  within 
a  location  acquired  for  railroad 
purposes  under  the  statutes  of  that 
state.  Eldredge  v.  Norfolk  Co., 
185  Mass.  186.  70  N.  E.  36. 

••^<  Chicago  &c.  R.  Co.  v.  Wil- 
liams. 148  Fed.  442;  Richmond  &c. 
R.  Co.  V.  Johnston,  103  Va.  456. 
49  S.  E.  496:  Paterson  &c.  R.  Co. 
V.  Paterson,  72  N.  J.  L.  112.  60  Atl. 
47.  Compare,  however.  Southern 
Ry.  Co.  V.  City  of  Rome,  141  Ga. 
143,  80  S.  E.  557:  Pittsburgh  &c. 
R.  Co.  V.  Borough  of  Butler,  242 
Pa.  St.  461,  89  Atl.  579. 


§  1229  RAILROADS  776 

to  the  use  of  the  public  as  a  street.^^  The  decision  of  the  city  as 
t(^  the  necessity  for  the  extension  of  the  street  will  not  be  dis- 
turbed unless  an  (.extreme  case  of  oppression  or  outrag^e  is 
shown. ^^     But  the  courts  may  intcr^■cne  in  a  proper  case.^^ 

§  1229  (975b).  Condemnation  of  right  of  way  for  other  pur- 
poses— Reservoir  sites — Drainage. — Under  the  principle  that 
property  devoted  to  one  public  use  can  not  be  appropriated  to 
another  public  use  through  condemnation  proceedings  where  the 
later  appropriation  would  materially  impair  or  defeat  the  first  use 
unless  directly  authorized  by  statute  or  justified  by  some  superior 
public  exigency,  it  has  been  held  that  the  fact  that  a  certain  site 
ever  which  a  railroad  company  has  a  right  of  way  is  the  only 
one  at  which  a  water  company  can  construct  a  reservoir  for  the 
prosecution  of  its  business — no  public  necessity  for  the  reservoir 
being  shown — does  not  authorize  the  condemnation  of  such  right 
of  way  for  the  reservoir.^^  But  the  condemnation  of  a  strip  of 
railroad  land  for  drainage  has  been  upheld  in  fllinois.^^  And 
railroad  companies  have  often  been  held  bound  at  their  own  ex- 
pense to  construct  bridges  over  public  drainage  ditches  where 
such  construction  is  necessitated  by  the  widening  or  deepening  of 
a  natural  water  course,  and,  in  some  instances  even  where  the 
ditch  did  not  follow  the  lines  of  a  natural  water  course.*" 

§  1230  (975c).  Condemnation  of  right  of  way  for  other  pur- 
poses— Telegraph   and  telephone  lines. — A  duly   incorporated*^ 

35  Chicago  &c.  R.  Co.  v.  Hogan,  pare  Lake  Erie  &c.  R.  Co.  v.  Han- 
105   111.  App.  136.  cock    Count.v,    63    Ohio    St.    23.    57 

36  Chicago  &c.   R.   Co.  v.   Alorri-       N.  E.  1009. 

son,  195  111.  271,  63  N.  E.  96;  Chi-  ^o  Chicago  &c.  R.  Co.  v.  Illinois, 

cago  &c.  R.  Co.  V.  Pontiac,  169  111.  200  U.  S.  561,  26  Sup.  Ct.  341,  50 

155.  48  N.  E.  485;  Chicago  &c.  R.  L.  ed.  596  (but  not  the  expense  of 

Co.  V.  Cicero,  154  111.  656,  39  N.  E.  removing  the   soil   for    the   ditch); 

574.  Chicago  &c.   R.  Co.  v.  Board,  182 

"Chicago    &c.    R.    Co.    v.    Wil-  Fed.  291,  31  L.  R.  A.  (N.  S.)  1117 

liams,   148   Fed.  442.  and   note:    Chicago    &c.    R.    Co.    v. 

38  Denver  Power  &c.  Co.  v.  Den-  Luddington,  175  Ind.  35,  91   N.  E. 

ver   &c.    R.    Co.,   30   Colo.   204,   69  939,  93  N.  E.  273;  Mason  City  etc., 

Pac.  568.  R.  Co.  v.  Board  of  Supervisors,  144 

30  Pittsburgh  &c.  Ry.  Co.  v.  San-  Iowa  10,  121  N.  W.  39. 

itary  Dist.,  218   111.  286,  75   N.   E.  ^-^  Ft.  Worth  &c.  R.  Co.  v.  South- 

892.  2  L.  R.  A.  (N.  S.)  226.     Com-  western  Tel.  &c.  Co.,  96  Tex.  160, 


777 


APPROPRIATION    UNDER    THE    EMINENT    D(jMAIN 


1230 


telegraph'-'  or  telephone  conipan}''  ma}'  acquire  a  right  of  way 
for  its  line  over  and  along  the  right  of  way  of  a  railroad  company 
when  such  use  will  not  materially  interfere  with  the  use  for 
which  the  land  was  originally  condemned  by  the  railroad  com- 
pany. Condemnation  for  these  purposes  can  not  be  defeated 
unless  it  is  made  to  appear  that  the  use  of  the  land  sought  to  be 
condemned  is  necessary  to  the  operation  of  the  railroad  or  of 
other  lines  of  telegraph  already  erected  thereon.'**  Nor  is  it  a 
valid  objection  that  the  telegraph  or  telephone  company  can 
obtain  a  right  of  way  over  other  adjacent  or  nearby  property  or 
in  other  ways.*^  It  has  been  held  that  it  is  not  essential  for  the 
telegraph  company  to  aftirmatively  show  in  proceedings  for  con- 
demnation either  the  necessity  for  the  condemnation  of  the  right 
of  way  or  the  particular  portions  intended  for  use.*®  Under  these 
proceedings,  however,  it  has  been  held  the  telegraph  or  telephone 
company  acquires  no  more  than  an  easement  in  the  railroad  right 


71  S.  W.  270,  60  L.  R.  A.  145;  Gulf 
&c.  R.  Co.  V.  Southwestern  Tel. 
&c.  Co.,  25  Tex.  Civ.  App.  488,  61 
S.  W.  406.  The  right  of  a  de  facto 
telegraph  company  to  exercise  the 
pow^er  of  eminent  domain  over  a 
railroad  right  of  way  is  not  open 
to  question  by  the  railroad  com- 
pany on  the  ground  that  it  is  only 
a  pretended,  and  not  a  real  cor- 
poration. That  question  can  only 
be  raised  by  the  state.  Postal  Tel. 
Cable  Co.  v.  Oregon  Short  Line  R. 
Co.,  114  Fed.  787. 

42  Postal  Tel.  Cable  Co.  v.  Ore- 
gon Short  Line  R.  Co.,  114  Fed. 
787;  Western  Atl.  R.  Co.  v.  West- 
ern Union  Tel.  Co.,  138  Ga.  420, 
75  S.  E.  471,  42  L.  R.  A.  (N.  S.) 
225;  Postal  Tel.  Cable  Co.  v.  Chi- 
cago &c.  R.  Co.,  30  Ind.  App.  654, 
66  N.  E.  919;  Postal  Tel.  Cable 
Co.  V.  Oregon  Short  Line  R.  Co.,  ■ 
23  Utah  474,  65  Pac.  735,  90  Am. 
St.   705.      But   see   Western   Union 


Tel.  Co.  V.  Pennsylvania  R.  Co., 
123  Fed.  33. 

^^  Southwestern  Tel.  Co.  v.  Kan- 
sas City  &c.  R.  Co.,  108  La.  892, 
33  So.  910;  South  Carolina  &c.  R. 
Co.  V.  American  Tel.  &c.  Co.,  65 
S.  Car.  459,  34  S.  E.  970. 

4*  Union  Pac.  R.  Co.  v.  Colorado 
Postal  Cable  Co.,  30  Colo.  133,  69 
Pac.  564.  See  also  Louisville  &c. 
R.  Co.  V.  Western  Union  Tel.  Co., 
249  Fed.  385. 

45  Ft.  Worth  &c.  R.  Co.  v.  Sa- 
vannah Tel.  &c.  R.  Co.,  96  Tex. 
160,  71  S.  W.  270,  60  L.  R.  A.  145; 
Postal  Tel.  &c.  Co.  v.  Oregon 
Short  Line  R.  Co.,  23  Utah  474, 
65  Pac.  735,  90  Am.  St.  705;  Union 
Pac.  R.  Co.  V.  Colorado  Postal  Tel. 
Cable  Co.,  30  Colo.  133.  69  Pac. 
564. 

•tfi  Savannah  &c.  R.  Co.  v.  Postal 
Tel.  Cable  Co.,  112  Ga.  941,  38  N. 
E.  353. 


^  1231 


RAILROADS 


778 


of  way  occupied  by  its  poles  with  the  right  to  enter  thereon  for 
the  purpose  of  constructing  and  repairing  its  line.^^ 

§  1231  (976).  What  constitutes  a  taking — Generally. — As  we 
have  seen,  the  constitutions  of  the  various  states  require  that 
compensation  must  be  made  for  all  private  property  taken  for 
public  use  under  the  power  of  eminent  domain,*^  but  there  is 
great  conflict  in  the  authorities  with  regard  to  what  constitutes 
a  taking  within  the  meaning  of  these  constitutional  provisions. 
Since  property  in  land  is  not  land  itself,  but  the  right  to  certain 
present  or  future  privileges  or  advantages  growing  out  of  the 
land,  so  that  a  number  of  persons  may  have  different  estates  in 
the  same  parcel  of  land,  it  would  seem  to  follow,  as  a  logical 
consequence  that,  as  a  general  rule,  whatever  deprives  a  person 
of  his  rights  in  land  and  the  use  and  enjoyment  thereof  consti- 
tutes a  taking  for  which  compensation  should  be  made.'*^  As 
v.as  said  by  Chief  Justice  Shaw,  of  ^Massachusetts,  in  speaking  of 
this  subiect :  "The  word  'property'  in  the  tenth  article  of  the  bill 
of  rights,  which  provides  that  'whenever  the  public  exigencies 
require  that  the  property  of  any  individual  should  be  appro- 
])riated  to  public  uses,  he  shall  receive  a  reasonable  compensa- 


^'^  Atlantic  Coast  Line  R.  Co.  v. 
Postal  Cable  Co.,  120  Ga.  268,  48 
S.  E.  15.  See  generally  as  to  rail- 
road company's  right  to  compen- 
sation and  the  measure  thereof, 
notes  in  26  L.  R.  A.  (N.  S.)  191, 
and  in  29  L.  R.  A.  (N.  S.)  703. 

48  See  ante,  §  1187. 

49  Chicago  &c.  R.  Co.  v.  Engle- 
wood  Connecting  R.  Co.,  115  111. 
375,  385,  4  N.  E.  246,  56  Am.  Rep. 
173;  Denver  v.  Bayer,  7  Colo.  113, 
2  Pac.  6;  Pumpelly  v.  Green  Bay 
&c.  Co.,  13  Wall.  (U.  S.)  166,  20 
L.  ed.  557;  Caro  v.  ]Metropolitan 
El.  R.  Co.,  46  N.  Y.  Super.  Ct.  138; 
Baltimore  Belt  R.  Co.  v.  Sattler, 
100  Aid.  306,  59  Atl.  654.  See  El- 
liott Roads  and  Streets  (3rd  ed.) 
§§  202-204,  cited  in  School  Tp.  of 


Andrews  v.  Heiney,  178  Ind.  1,  8, 
98  N.  E.  628;  Walker  v.  Old  Col- 
ony &c.  R.  Co.,  103  Mass.  10,  4 
.\m.  Rep.  509;  note  to  Vanderlip 
V.  Grand  Rapids,  7Z  Mich.  522,  41 
X.  W.  677,  16  Am.  St.  597,  610; 
Pennsylvania  R.  Co.  v.  Angel,  41 
X.  J.  Eq.  316,  329,  7  Atl.  432,  5  L. 
R.  .\.  247,  and  note;  56  Am.  Rep. 
1,  and  note;  Smith  v.  Rochester,  92 
X.  Y.  463,  44  Am.  Rep.  393;  Aben- 
droth  V.  Manhattan  R.  Co.,  122  N. 
Y.  1,  25  X.  E.  496,  11  L.  R.  A.  634 
and  note,  19  Am.  St.  461;  Rumsey 
V.  Xew  York  &c.  R.  Co.,  133  X.  Y. 
79,  30  X.  E.  654,  15  L.  R.  A.  618. 
28  Am.  St.  600,  6  Am.  R.  &  Corp. 
Rep.  67  and  note;  East  Penna.  Co. 
v.  Schollenberger,  54  Pa.  St.  144; 
Cumberland     Tel.     Co.     v.    United 


779 


APPROPKIATIOX    INDEll    THE    EMIXEXT   DOMAIX 


§  1231 


tion  therefor,'  should  have  such  Hberal  construction  as  to  inckule 
every  vaktable  interest  which  can  be  enjoyed  as  property  and 
recognized  as  such,"^"  Accordingly,  it  has  been  held  that  where 
a  railroad,  by  cutting  through  a  ridge  near  the  plaintiff's  farm, 
destroys  the  natural  barrier  by  which  in  times  of  freshet,  the 
waters  of  an  adjacent  river  were  prevented  from  overflowing  the 
plaintiff's  land,  and  such  waters,  flowing  through  the  cut,  flood 
the  land,  bringing  down  and  lodging  upon  it  quantities  of  earth 
and  stones  and  rendering-  it  unfit  for  cultivation,  the  railroad  is 
liable  in  damages,  although  no  part  of  the  plaintiff's  land  was 
actually  taken. ^^     This  is  upon  the  principle    that    property    is 


Electric  R.  Co..  93  Tenn.  492,  29 
S.  W.  104,  27  L.  R.  A.  236,  10  Am. 
R.  &  Corp.  Rep.  549;  Great  North- 
ern R.  Co.  V.  State,  102  Wash.  348, 
173  Pac.  40,  L.  R.  A.  1918E,  987. 

50  Old  Colony  &c.  R.  Co.  v.  Ply- 
month  Co.,  14  Gray  (Mass.)  155, 
161.  See  also  Sheldon  v.  Boston 
&c.  R.  Co.,  172  Mass.  180,  51  N.  E. 
1078. 

51  Eaton  V.  Boston  &c.  R.  Co. 
51  N.  H.  504,  12  Am.  Rep.  147.  In 
this,  a  leading  case  upon  the  sub- 
ject, the  court  said:  "The  vital  is- 
sue then  is,  whether  the  injuries 
complained  of  amount  to  a  taking 
of  the  plaintifif's  property,  within 
the  constitutional  meaning  of  those 
terms.  To  constitute  'a  taking  of 
property'  it  seems  to  have  some- 
times been  held  necessary  that 
there  should  be  'an  exclusive  ap- 
propriation.' 'a  total  assumption  of 
possession,'  'a  complete  ouster,'  an 
absolute  or  total  conversion  of  the 
entire  property,  'a  taking  the  prop- 
erty altogether.'  These  views  seem 
to  us  to  be  founded  upon  a  miscon- 
ception of  the  term  'property,'  as 
used  in  the  various  state  consti- 
tutions.     Tn    a    strict    legal    sense. 


land  is  not  'property,'  but  the  sub- 
ject of  property.  The  term  prop- 
erty, although  in  common  parlance 
frequently  applied  to  a  tract  of 
land  or  a  chattel,  in  its  legal  sig- 
nification, 'means  only  the  right  of 
the  owner  in  relation  to  it.'  'It 
denotes  a.  right  over  a  determinate 
thing.'  'Property  is  the  right  of 
any  person  to  possess,  use,  enjoy 
and  dispose  of  a  thing.'  Selden,  J., 
in  Wynehamer  v.  People,  13  N.  Y. 
378,  p.  433.  If  property  in  land 
consists  in  certain  essential  rights, 
and  a  physical  interference  with 
the  land  substantially  subverts  one 
of  those  rights,  such  interference 
'takes,'  pro  tanto,  the  owner's  'prop- 
erty.' The  right  of  indefinite  user 
(or  of  using  indefinitely)  is  an  es- 
sential quality  or  attribute  of  ab- 
solute property,  without  which  ab- 
solute property  can  have  no  legal 
existence.  'Use  is  the  real  side  of 
propertj'.'  This  right  of  user  nec- 
essarily includes  the  right  and 
power  of  excluding  others  from 
using  the  land.  Wells,  J.,  in 
Walker  v.  Old  Colony  &c.  R.  Co.. 
103  Mass.  10,  p.  14,  4  Am.  Rep.  509. 
'I""rom     the    very    nature    of    these 


§  1'2'M  HAILKUADS  780 

taken  when  those  proprietary  rights  are  taken  of  which  property 


rights  of  user  and  of  exclusion,  it 
is  evident  that  they  can  not  be 
materially  abridged  without,  ipso 
facto,  taking  the  owner's  property.' 
If  the  right  of  indefinite  user  is  an 
essential  element  of  absolute  prop- 
ert}'  or  complete  ownership,  what- 
ever physical  interference  annuls 
this  right  takes  'property' — -al- 
though the  owner  may  still  have 
left  to  him  valuable  rights  (in  the 
article)  of  a  more  limited  and  cir- 
cumscribed nature.  He  has  not 
the  same  property  that  he  former- 
ly had.  Then,  he  had  an  unlim- 
ited right;  now.  he  has  only  a  lim- 
ited right.  His  absolute  ownership 
has  been  reduced  to  qualified  own- 
ership. Restricting  A's  unlimited 
right  of  using  one  hundred  acres 
of  land  to  a  limited  right  of  using 
the  same  land,  may  work  a  far 
greater  injury  to  A  than  to  take 
from  him  the  title  of  fee-simple  to 
one  acre,  leaving  him  the  unre- 
stricted right  of  using  the  re- 
maining ninety-nine  acres.  Nobody 
doubts  that  the  latter  transaction 
would  constitute  a  taking  of  'prop- 
erty.' Why  not  the  former?  .  .  . 
A  physical  interference  with  the 
land,  which  substantially  abridges 
this  right,  takes  the  owner's  'prop- 
erty' to  just  so  great  an  extent  as 
he  is  thereby  deprived  of  his  rieht. 
'To  deprive  one  of  the  use  of  his 
land  is  depriving  him  of  his  land,' 
for.  as  T.ord  Coke  says:  'What  is 
the  land  but  the  profits  thereof?' 
Sutherland.  J.,  in  People  v.  Kerr. 
.^7  Barb.  CN.  Y.)  357.  399.  The 
private  injury  is  thereby  as  com- 
pletel)'  effected  as  if  the  land  itself 


were  'physically  taken  away.'  The 
principle  must  be  the  same,  wheth- 
er the  owner  is  wholly  deprived  of 
the  use  of  his  land,  or  only  par- 
tially deprived  of  it,  although  the 
amount  or  value  of  the  property 
taken  in  the  two  instances  may 
widely  differ.  If  the  railroad  cor- 
poration take  a  strip  four  rods 
wide  out  of  a  farm  to  build  their 
track  upon,  they  can  not  escape 
paying  for  the  strip  by  the  plea 
that  they  have  not  taken  the  whole 
farm.  So  a  partial,  but  substan- 
tial, restriction  of  the  right  of  user 
may  not  annihilate  all  the  owner's 
rights  of  property  in  the  land,  but 
it  is  none  the  less  true  that  a  part 
of  his  property  is  taken.  ...  If 
the  public  can  take  part  of  a  man's 
property  without  compensation, 
they  can,  by  successive  takings  of 
the  different  parts,  soon  acquire 
the  whole.  Or,  if  it  is  held  that 
the  complete  divestiture  of  the  last 
scintilla  of  interest  is  a  taking  of 
the  whole  for  which  compensation 
must  be  made,  it  will  be  easy  to 
leave  the  owner  an  interest  in  the 
land  of  infinitesimal  value."  See 
also  Brown  v.  Cayuga  &c.  R.  Co., 
12  N.  Y.  486:  Robinson  v.  New 
York  &c.  R.  Co.,  27  Barb.  CN.  Y.) 
SU:  Gulf  &c.  R.  Co.  v.  Jones.  63 
Tex.  524;  Attorney-General  v.  Tom- 
line.  12  L.  R.  Ch.  Div.  214,  affirmed 
14  L.  R.  Ch.  Div.  58.  But  compare 
Transportation  Co.  v.  Chicago,  99 
U.  S.  635,  25  L.  ed.  336:  :\Ieyer  v. 
Richmond,  172  U.  S.  82,  19  Sup. 
Ct.  106.  111.  112:  Gordon  v.  Eller- 
ville  &c.  R.  Co.,  195  N.  Y.  137.  88 
N.  E.  14,  47  L.  R.  A.  CN.  S.)  462. 


781 


APPROPRIATION    UNDER   THE    EMINENT   DOMAIN 


§1231 


consists, ^^  and  that  the  plaintiff  was  damaged  by  the  infringe- 
ment of  his  right  to  the  protection  of  the  neighboring  ridge  of 
land,  as  clearly  as  he  would  have  been  had  his  right  to  occupy 
his  farm  been  interfered  with.'"'^  According  to  this  rule,  which 
we  regard  as  the  correct  one,  although  some  of  the  cases  to  which 
we  have  referred  carry  it  very  far  in  the  application  to  particular 
facts,  an  actual  physical  seizure  or  manual  possession  of  the  land 
is  not  absolutely  essential  to  constitute  a  taking  for  which  com- 
pensation must  be  made.''*  On  the  other  hand,  however,  it  is 
held  in  many  of  the  older  authorities  that  to  entitle  the  owner  to 
protection  under  the  clause  of  the  constitution  requiring  compen- 
sation to  be  made  for  all  property  taken  for  public  use,  the  prop- 
erty must  be  actually  taken,  in  the  physical  sense  of  the  word, 
and  that  the  proprietor  is  not  entitled  to  claim  remuneration  for 
indirect  or  consequential  damages,  no  matter  how  serious  or  how 
clearly  and  unquestionably  resulting  from  the  exercise  of  the 
power  of  eminent  domain.^^    Thus  it  was  held  that  a  land-owner, 


52  Arimond  v.  Green  Baj^  &c.  Co., 
31  Wis.  316,  335.  See  also  note  in 
18  L.  R.  A.  166. 

53  Thompson  v.  Androscoggin 
River  Imp.  Co.,  54  N.  H.  545. 

54  Arnold  v.  Hudson  River  R. 
Co.,  55  N.  Y.  661;  Story  v.  New 
York  El.  R.  Co.,  90  N.  Y.  122,  43 
Am.  Rep.  146;  Rigney  v.  Chicago, 
102  III.  64;  Hooker  v.  New  Haven 
&c.  R.  Co.,  14  Conn.  146,  36  Am. 
Dec.  477;  Forster  v.  Scott,  136  N. 
Y.  577,  32  N.  E.  976,  977,  18  L.  R. 
A.  543  and  note;  King  v.  United 
States,  59  Fed.  9.  See  also  Cin- 
cinnati &c.  R.  Co.  v.  Miller,  36  Ind. 
App.  26,  72  N.  E.  827,  73  N.  E. 
1001;  Baltimore  Belt  R.  Co.  v. 
Sattler,  100  Md.  306,  59  Atl.  654; 
Dairy  v.  Iowa  Cent.  R.  Co.,  113 
Iowa  716,  84  N.  W.  688;  Vander- 
burg  V.  Minneapolis,  98  Minn.  329. 
i08  N.  W.  480,  6  L.  R.  A.  (N.  S.) 
741;    IMatthias    v.    Minneapolis    &c. 


R.   Co.,   125    Minn.  224,   146  N.  W. 
353. 

55  Northern  Transportation  Co. 
v.  Chicago.  99  U.  S.  635,  25  L.  ed. 
336;  Selden  v.  Jacksonville,  28  Fla. 
558,  10  So.  457,  14  L.  R.  A.  370 
and  note,  29  Am.  St.  278;  Hotsman 
V.  Covington  &c.  R.  Co.,  18  B. 
Mon.  (K}'.)  218:  Cushman  v. 
Smith,  34  Elaine  247;  Boothby  v. 
Androscoggin  &c.  R.  Co.,  51  Maine 
318:  Baltimore  &c.  R.  Co.  v.  Ma- 
gruder,  34  Md.  79.  6  Am.  Rep.  310; 
Garrett  v.  Lake  Roland  &c.  R.  Co., 
79  Md.  277,  29  Atl.  830,  24  L.  R.  A. 
396,  10  Am.  R.  &  Corp.  Rep.  39; 
Curtis  v.  Eastern  R.  Co.,  14  Allen 
(Mass.)  55,  98  Mass.  428;  Esta- 
brooks  V.  Peterborough  &c.  R.  Co., 
12  Cash.  (Mass.)  224;  Boston  &c. 
R.  Co.  V.  Old  Colony  R.  Co.,  12 
Cush.  (Mass.)  605;  Commissioners 
S:c.  V.  Withers.  29  Miss.  21,  64  Am. 
Dec.  126:  Clark  v.  Hannibal  &c.  R. 


§  1232 


UAILKOADS 


782 


along-  the  1:)order  of  whose  land  a  railway  is  built  by  which  he  is 
compelled  to  maintain  the  entire  line  of  a  fence  of  which  he 
formerly  maintained  but  half  is  not  entitled  to  compensation, 
since  no  part  of  his  land  had  been  taken. '^'^  Also  that  a  railroad 
company  whose  charter  only  required  it  to  make  compensation 
for  lands  which  were  taken  for  the  corporate  purposes,  was  not 
liable  in  damages  to  the  owner  of  a  house  in  front  of  which  it 
had  raised  a  high  embankment,  so  that  the  owner  could  not  pass 
and  repass  to  and  from  the  same,  it  being  sht)\vn  that  the  com- 
pany had  built  its  road  in  a  prudent  and  reasonable  manner.  The 
court  held  that  simply  affecting  land  injuriously  in  the  construc- 
tion of  a  public  work  was  not  a  taking  of  it  for  public  use  within 
the  meaning  of  the  constitution."'^ 

§  1232.  No  taking  where  no  property  right. — There  is  another 
class  of  cases  in  which  compensation  has  been  sought  for  the 
taking  or  destruction  of  that  which  the  plaintiff  never  owned,  or 
in  which  he  had  merely  the  same  right  possessed  by  the  public 
in  general.  In  such  cases  the  right  of  recovery  is  uniformly 
denied.^^     Thus   where   the   plaintiff  watered   his   cattle   on   the 


Co.,  36  Mo.  202;  Kennett's  Peti- 
tion, 24  N.  H.  139;  Arnold  v.  Hud- 
son River  R.  Co.,  49  Barb.  (N.  Y.) 
108;  Gould  v.  Hudson  River  R.  Co., 
6  N.  Y.  522;  Bellinger  v.  New  York 
Cent.  R.  Co.,  23  N.  Y.  42;  O'Con- 
nor V.  Pittsburgh,  18  Pa.  St.  187; 
Clarke  v.  Birmingham  &c.  Bridge 
Co.,  41  Pa.  St.  147;  West  Branch 
&c.  Canal  Co.  v.  Mulliner,  68  Pa. 
St.  357;  Norris  v.  Vermont  Cent. 
R.  Co.,  28  Vt.  99;  Hatch  v.  Ver- 
mont Cent.  R.  Co.,  28  Vt.  142.  See 
also  Hurt  v.  Atlanta,  100  Ga.  274, 
28  S.  E.  65,  and  compare  Roman 
Catholic  &c.  v.  Penna.  R.  Co.,  207 
Fed.  897;  Fink  v.  Cleveland  &c.  R. 
Co..  181  Ind.  539,  105  N.  E.  116. 

•"'^  Kennett's  Petition,  24  N.  H. 
139.  In  the  case  of  Eaton  v.  Bos- 
ton  &c.  R.   Co.,  51   N.   H.   504,   12 


Am.  Rep.  147,  Smith,  J.,  points  out 
the  fact  that  all  that  was  really 
decided  in  this  case  was  that  the 
statute  under  which  the  petition 
was  prosecuted  made  no  provision 
for  the  payment  of  such  damages. 
"The  construction  and  not  the  con- 
stitutionality is  the  point  for  de- 
cision." 

•'■'■  Richardson  v.  Vermont  Cent. 
R.  Co.,  25  Vt.  465,  60  Am.  Dec. 
283:  Hatch  v.  Vermont  Cent.  R. 
Co.,  25  Vt.  49,  28  Vt.  142. 

^'^  Lee  V.  Pembroke  Iron  Co.,  57 
Maine  481;  Davidson  v.  Boston 
&c.  R.  Co.,  3  Cush.  (Mass.)  91, 
106;  Gould  v.  Hudson  River  &c.  R. 
Co.,  6  N.  Y.  522,  12  Barb.  616; 
Shrunk  v.  Pres.  &c.  Schuylkill 
Nav.  Co.,  14  Serg.  &  R.  (Pa.)  71: 
Canal  Appraisers  &c.  v.  Peoi)le,  17 


783 


APPROPRIATION    l^NDER    THE   EMINENT    DOMAIN  §  1232 


fjirm  of  another,  across  the  highway  from  his  own  farm,  but  had, 
however,  no  right  to  the  water,  or  of  access  thereto,  that  was  not 
common  to  the  public,  it  was  held  that,  in  estimating  the  damage 
arising  from  the  taking  of  a  strip  of  plaintiff's  land  for  the  con- 
struction of  a  railroad,  interference  with  the  plaintiff's  access 
to  the  watering  place  was  not  an  element  of  damages."'"  So. 
\vhere  the  state  authorized  a  railroad  company  to  build  a  bridge 
across  a  navigable  river  belonging  to  the  state,  thereby  obstruct- 
ing navigation  and  rendering  less  valuable  the  lands  of  a  riparian 
proprietor,  no  part  of  whose  land,  however,  was  taken  or  flooded, 
it  was  held  that  such  proprietor  could  not  maintain  an  action  for 
damages.  Since  he  held  no  title  to  the  right  of  navigating  the 
river,  other  than  the  right  common  to  all  the  public,  he  was  only 
"deprived  of  use  of  what  was  never  his  own."""  Under  this  class 
oi  cases  may  be  included  those  in  which  the  act  complained  of 
constituted  a  public  nuisance,  the  plaintiff's  damage  differing  in 
degree  onl}',  not  in  kind,  from  that  sustained  by  the  rest  of  the 
community.  In  such  cases  it  is  held  that  the  proper  remedy  is 
a  i)ublic  i)rosecution  and  not  a  private    action    for    damages.®^ 


Wend.  (N.  Y.)  571;  New  York  &c. 
R.  Co.  v.  Young,  33  Pa.  St.  175; 
Clarke  v.  Birmingham  &c.  Bridge 
Co.,  41  Pa.  St.  147;  Monongahela 
Bridge  Co.  v.  Kirk,  46  Pa.  St.  112, 
84  Am.  Dec.  527. 

59  Gorgas  v.  Philadelphia  &c.  R, 
Co.,  144  Pa.  St.  1,  22  At).  715.  See 
also  Illinois  Cent.  R.  Co.  v.  Stew- 
art, 265  111.  35,  106  N.  E.  512; 
Chesapeake  &c.  R.  Co.  v.  Blank- 
enship,  158  Ky.  270,  164  S.  W.  943. 
In  both  of  these  cases  the  use  was 
merely  permissive  and  the  party 
claiming  his  property  was  taken 
had  no  real  property  right. 

60  Gould  V.  Hudson  River  R.  Co., 
6  N.  Y.  522,  12  Barb.  616.  In  Canal 
Appraisers  &c.  v.  People,  17  Wend. 
(N.  Y.)  571,  the  majority  disal- 
lowed the  relator's  claim  to  com- 
pensation for  the  destruction  of 
the  waterfall  in  the  iNIohawk  river, 


upon  the  ground  that  the  bed  of 
that  river  belonged  to  the  state, 
and  an  adjoining  owner  acquired 
no  rights  therein.  See  also  Scran- 
ton  V.  Wheeler,  179  U.  S.  141,  21 
Sup.  Ct.  48,  45  L.  ed.  126,  21  Am. 
St.  48;  Gibson  v.  United  States,  166 
U.  S.  269,  17  Sup.  Ct.  578,  41  L.  ed. 
996.  But  compare  ^lonongahela 
Nav.  Co.  V.  United  States,  148  U. 
S.  312,  13  Sup.  Ct.  622,  37  L.  ed. 
463.  And  see  Richards  v.  New 
York  &c.  R.  Co.,  77  Conn.  501,  60 
Atl.  295,  69  L.  R.  A.  929. 

«i  Blood  V.  Nashua  &c.  R.  Co., 
2  Gray  (^lass.)  137,  61  Am.  Dec. 
444:  Boston  &c.  R.  Co.  v.  Old  Col- 
ony R.  Co..  12  Cush.  (Mass.)  605; 
Hatch  v.  \^ermont  Central  &c.  R. 
Co.,  28  Vt.  142;  Illinois  Cent.  R. 
Co.  V.  Trustees,  212  111.  406,  72  N. 
K.  39;  Gulf  &c.  R.  Co.  v.  Fuller,  63 
Te.x.  467. 


§1233 


KAILROADS 


784 


§  1233   (977).     What  constitutes  a  taking — Illustrative  cases. 

A  mere  preliminary  survey,  when  properly  eonducted.  does  not 

amount  to  a  taking.''-  But  where  a  railroad  company  diverted  a 
stream  into  a  new  channel  for  a  short  distance,  and  the  stream 
escaped  from  the  new  channel  by  percolation  the  company  was 
held  liable  ;^^  so,  also,  where  the  company  took  from  a  stream  for 
the  use  of  its  locomotives,  so  much  water  as  to  perceptibly  reduce 
the  volume  of  water  therein.*^-*  Permitting  the  waste  water  from 
a  tank  to  run  upon  private  property,  where  it  caused  damage  by 
freezing  and  otherwise,  has  been  held  such  an  infringement  of 
the  property-owner's  rights  on  the  part  of  a  railroad  company  as 
to  render  it  liable  in  damages.*'^  Where  the  construction  of  a 
bridge  and  the  accompanying  embankments  by  a  railroad  com- 


G2Ante,  §  1134.  Nor  docs  the 
commencement  of  proceedings  to 
condemn.  Duluth  &c.  R.  Co.  v. 
Northern  Pac.  R.  Co.,  51  Minn. 
218,  53  N.  W.  366;  Morris  v.  Wis- 
consin &c.  R.  Co.,  82  Wis.  541,  52 
N.  W.  758.  But  the  act  of  location 
has  been  held  to  be  also  an  act  of 
appropriation.  Hagner  v.  Pennsyl- 
vania &c.  R.  Co.,  154  Pa.  St.  475, 
25  Atl.  1082.  But  see  United  States 
V.  Oregon  R.  &c.  Co.,  16  Fed.  524. 
A  temporary  unintentional  tres- 
pass is  held  not  to  constitute  a  tak- 
ing in  Morris  v.  Wisconsin  Mid- 
land R.  Co.,  82  Wis.  541,  52  N.  W. 
758. 

«•''  Cott  V.  Lewiston  R.  Co..  36  N 
Y.  214.  See  also  note  in  38  L.  R 
A.  (N.  S.)  1040. 

«*  Garwood  v.  New  York  ^c.  R 
Co.,  83  N.  Y.  400.  38  Am.  Rep.  452 
Sandwich  v.  Great  Northern  R.  Co. 
L.  R.  10  Ch.  Div.  707:  Lord  v 
Meadville  &c.  Co..  135  Pa.  St.  122 


19  At).  1007,  8  L.  R.  A.  202.  20  Am. 
St.  864,  2  Am.  R.  &  Corp.  Rep.  744 
and  note:  Pennsylvania  R.  Co.  v. 
Miller.  112  Pa.  St.  34,  3  Atl.  780. 
But  it  has  been  held  that  a  railroad 
company,  being  a  riparian  proprie- 
tor, may  take  a  reasonable  amount 
of  water  for  the  purpose  of  sup- 
plying its  locomotives  or  the  like. 
p:iliott  v.  Fitchburg  R.  Co.,  10 
Cush.  (Mass.)  191,  57  Am.  Dec.  85: 
Pennsylvania  R.  Co.  v.  Miller,  112 
Pa.  St.  34,  3  Atl.  780:  Sandwich  v. 
Great  Northern  R.  Co.,  L.  R.  10 
Ch.  Div.  707.  See  also  Fay  v.  Sa- 
lem &c.  Co.;  Ill  Mass.  27.  And 
see  generally  as  to  riparian  pro- 
prietors, notes  in  7  T-.  R.  .A.  (^N.  S.") 
344.  and  38  I..  R.  A.  (N.  S.)  1040; 
■tIso  Thiescn  v.  Gulf  &c.  Ry.  Co., 
75  Fla.  28,  78  So.  491. 

••'■^  Chicago  &c.  R.  Co.  v.  Hoag, 
90  111.  339.  See  also  Schaake  v. 
Kansas  City  &c.  Ry.  Co.,  102  Kans. 
470,  170  Pac.  804. 


785 


APPROPRIATION    TNDKR    TUK    EMINENT    DOMAIN  §  12;j3 


pany  chang-es  the  course,"'^  or  increases  the  currenf^  of  the  stream 
crossed  to  the  damage  of  private  property,  it  has  been  held  that 
compensation  must  l)e  made.*^^  And  the  fact  that  no  part  of  the 
])Iaintiff' s  land  was  taken  in  the  construction  of  the  railroad  does 
not  affect  his  right  to  recover  damages  for  an  interference  with 
the  stream  whereby  rights  are  injuriously  affected. ''•'  \Vhere  a 
railroad  is  built  along  the  shore  of  public  navigable  waters,  so  as 
to  shut  off  the  riparian  proprietor  from  access  thereto,  he  is  gen- 
erally held  entitled  to  compensation  for  the  injury  to  his  riparian 
rights,  although  no  part  of  his  land  is  taken,'"  and  even  though 
that  part  of  his  land  adjoining  high  water  mark  has  already  been 


^^  Union  Pac.  R.  Co.  v.  Dj-che. 
31  Kans.  120,  1  Pac.  243;  Robinson 
V.  New  York  &c.  R.  Co.,  27  Barb. 
(N.  Y.)  512:  Estabrooks  v.  Peter- 
borough &c.  R.  Co.,  12  Cush. 
(Mass.)  224;  Dickson  v.  Chicago 
&c.  R.  Co.,  71  Mo.  575;  Chicago 
&c.  R.  Co.  V.  Moffitt,  75  111.  524. 
See  also  Jacksonville  v.  Lambert, 
62  111.  519;  White  v.  Penna.  R.  Co., 
229  Pa.  St.  480,  78  Atl.  1035.  38  L. 
R.  A.  (N.  S.)  1040  and  other  cases 
there  cited  in  note. 

^'^  Evansville  &c.  R.  Co.  v.  Dick, 
9  Ind.  433.  But  it  has  been  held 
that  the  construction  of  a  wall  or 
an  embankment  along  one  side  of 
a  stream  will  not  render  the  cor- 
poration liable  for  damage  caused 
by  forcing  the  water  in  times  of 
flood  to  flow  against  and  over 
property  on  the  other  side  of  the 
stream.  Moyer  v.  New  York  Cen- 
tral &c.  R.  Co.,  88  N.  Y.  351;  Law- 
rence v.  Great  Northern  R.  Co.,  16 
Q.  B.  643.  See  also  Salliotte  v. 
King  Bridge  Co.,  122  Fed.  378,  65 
L.  R.  A.  620,  and  note.  But  see 
Cairo  &c.  R.  Co.  v.  Brevoort,  62 
Fed.  129,  25  L.  R.  A.  527  and  note 
and  authorities  there  cited. 


•"'S  Robinson  v.  New  York  &c.  R. 
Co.,  27  Barb.  (N.  Y.)  512.  See  also 
Toledo  &c.  R.  Co.  v.  Morrison,  71 
III.  616;  Leard  v.  Penna.  R.  Co., 
229  Pa.  St.  475,  78  Atl.  1034;  Bar- 
ron V.  :\Iemphis,  113  Tenn.  89,  80 
S.  W.  832,  106  Am.  St.  810.  But 
see  Henry  v.  Vermont  Cent.  R. 
Co.,  30  Vt.  638,  73  Am.  Dec.  329; 
Norris  v.  Vermont  Cent.  R.  Co., 
28  Vt.  99. 

^^  Eastabrooks  v.  Petersborough 
&c.  R.  Co.,  12  Cush.  (Mass.)  224; 
Evansville  &c.  R.  Co.  v.  Dick,  9 
Ind.  433;  Delaware  &c.  Canal  Co. 
V.  Lee,  22  N.  J.  L.  243. 

"0  Yates  v.  Milwaukee,  10  Wall. 
(U.  S.)  497,  19  L.  ed.  984;  Renwick 
V.  Dubuque  &c.  R.  Co.,  49  Iowa 
664;  Dubuque  &c.  R.  Co.  v.  Ren- 
wick, 102  U.  S.  180,  26  L.  ed.  51; 
State  V.  Illinois  Cent.  R.  Co.,  33 
Fed.  730;  Farist  Steel  Co.  v. 
Bridgeport.  60  Conn.  278,  22  Atl. 
544.  13  L.  R.  A.  590;  Baltimore  &c. 
R.  Co.  V.  Chase,  43  Md.  23;  Bris- 
binc  V.  St.  Paul  &c.  R.  Co.,  23 
Minn.  114;  Carli  v.  Stillwater  St. 
R.  &c.  Co.,  28  Minn.  373.  10  N.  W. 
205,  41  .\m.  Rep.  290;  Union  Depot 
&c.    Co.    v.    Brunswick,    31    Minn. 


1233 


RAILROADS 


786 


I'.ppropriated  as  a  public  highway."^  Where  a  company  builds 
tide  water  mills  and  other  works  below  high  water  mark  under 
v.n  authority  from  the  legislature,  it  has  been  held  that  they  con- 
stitute property  wdiich  can  not  be  taken  or  damaged  by  a  railroad 
company  without  compensation."-  It  has  been  held  that  where 
the  right  to  erect  a  bridge  has  been  purchased  or  condemned,  no 
further  damage  can  be  recovered  for  injuries  resulting  from  con- 
structing the  bridge  in  a  reasonable  and  proper  manner  with  a 
view  both  to  the  safety  of  passengers  and  the  protection  of  the 
property  holder."'  But  damages  may  be  recovered  for  injuries 
resulting  from  negligent  or  improper  construction,  whether  there 
has  been  an  assessment  of  damages  or  not.'* 


297,  17  X.  W.  626,  47  Am.  Rep. 
789;  Myers  v.  St.  Louis,  82  Mo. 
367;  Langdon  v.  New  York,  93  N. 
Y.  129;  Rumsej^  v.  New  York  &c. 
R.  Co.,  133  N.  Y.  79,  30  N.  E.  654, 
15  L.  R.  A.  618,  28  Am.  St.  600,  6 
Am.  R.  &  Corp.  Rep.  67  and  note, 
where  the  cases  on  both  sides  of 
the  question  are  reviewed;  Wilson 
V.  Welch,  12  Ore.  353,  7  Pac.  341; 
Delaplaine  v.  Chicago  &c.  R.  Co., 
42  Wis.  214,  24  Am.  Rep.  386; 
Diedrich  v.  Northwestern  &c.  R. 
Co..  42  Wis.  248,  24  Am.  Rep.  399: 
Lyon  V.  Fishmonger's  Co.,  L.  R.  1 
App.  Cas.  662.  See  also  Drury  v. 
:^Iidland  R.  Co.,  127  Mass.  571. 
Contra  Stevens  v.  Paterson  &c.  R. 
Co.,  34  N.  J.  L.  532,  3  Am.  Rep. 
269;  Tomlin  v.  Dubuque  &c.  R. 
Co.,  32  Iowa  106,  7  Am.  Rep.  176 
and  note;  Thayer  v.  New  Bedford 
&c.  R.  Co.,  125  Mass.  253;  Henry 
V.  Newburyport.  149  Mass.  582,  22 
N.  E.  75,  5  L.  R.  A.  179  and  note; 
Gould  V.  Hudson  River  R.  Co.,  6 
N.  Y.  522:  Bowlby  v.  Shively,  22 
Ore.  410,  30  Pac.  154;  McKeen  v. 
Delaware  Canal  Co.,  49  Pa.  St.  424; 
State  ex  rel.  Columbia  &c.  R.  Co. 
V.    Prosser,    4   Wash.   816.    30    Pac. 


734.  But  see  Scranton  v.  \\'lieeler, 
179  U.  S.  141,  21  Sup.  Ct.  48,  45 
L.  ed.  126;  Gibbon  v.  United  States, 
166  U.  S.  269,  17  Sup.  Ct.  578,  41 
L.  ed.  996. 

■1  Brisbine  v.  St.  Paul  &c.  R.  Co., 
23  Minn.  114;  Chesapeake  &c.  Ca- 
nal Co.  V.  L'^nion  Bank,  5  Crancli 
C.  C.  (U.  S.)  509. 

"-  Boston  Water  Power  Co.  v. 
Boston  &c.  R.  Co.,  16  Pick.  (Mass.) 
512;  Lee  v.  Pembroke  Iron  Co.,  57 
:\Iaine  481,  2  Am.  Rep.  59.  But 
wlicrc  tlie  riparian  proprietor  had 
built  his  lot  out  into  the  lake  past 
high  water  mark,  it  was  held  that 
lie  could  not  recover  for  the  land 
taken  bj-  a  railroad  which  located 
its  line  across  the  made  land, 
thougli  he  might  for  an  injur}'-  to 
Iiis  riparian  rights.  Diedrich  v. 
Northwestern  U.  Ry.  Co.,  42  Wis. 
248,  24  Am.  Rep.  399. 

"3  Evansville  &c.  R.  Co.  v.  Dick. 
^  Ind.  433;  Norris  v.  Vermont 
Cent.  R.  Co..  28  Vt.  99;  Terre 
Haute  &c.  R.  Co.  v.  :^lcKinley,  33 
Tnd.   274. 

74  Terre  Haute  &c.  R.  Co.  v.  Mc- 
Kinley.  33  Ind.  274;  ^liller  v.  Keo- 
kuk Sec.  R.  Co.,  63  Iowa  680,  16  N. 


787 


APPROPRIATION    LNDER    TIJE    EMINENT   DOMAIN 


§]2:j-i 


§  1234  (977a).  What  constitutes  a  taking — Other  illustrative 
cases. — The  construction  of  A\-orks  in  a  stream  by  which  the 
waters  are  set  back  and  made  to  overflow  the  hinds  of  a  pro- 
prietor above,  constitutes  a  taking-  for  which  he  must  be  com- 
pensated," as  does  also,  in  many  jurisdictions,  the  construction 
of  an  embankment  or  other  obstruction  by  which  surface  water 
is  prevented  from  flowing  over  the  railroad  company's  right  of 
way,  and  is  made  to  accumulate  upon  private  propertv.^^  or  is 


W.  567;  Fowle  v.  New  Hampshire 
&c.  R.  Co.,  112  Mass.  334,  17  Am. 
Rep.  106;  Brink  v.  Kansas  City 
&c.  R.  Co.,  17  Mo.  App.  177;  Spen- 
cer V.  Hartford  &c.  R.  Co.,  10  R.  I. 
14;  International  &c.  R.  Co.  v. 
Klaus,  64  Tex.  293. 

'^  Toledo  &c.  R.  Co.  v.  Morri- 
son, 71  111.  616;  Wabash  &c.  Canal 
V.  Spears,  16  Ind.  441,  79  Am.  Dec. 
444;  Estabrooks  v.  Petersborough 
&c.  R.  Co.,  12  Cush.  (Mass.)  224; 
Grand  Rapids  &c.  Co.  v.  Jarvis,  30 
]Mich.  308;  Minnetonka  Lake  Imp. 
Co.,  In  re,  56  Minn.  513,  45  Am. 
St.  494;  Mississippi  Cent.  R.  Co.  v. 
Mason,  51  Miss.  234;  Sheehy  v. 
Kansas  City  &c.  R.  Co.,  94  Mo. 
574.  7  S.  W.  579,  4  Am.  St.  396  and 
note;  Omaha  &c.  R.  Co.  v.  Stan- 
den,  22  Nebr.  343,  35  N.  W.  183; 
Delaware  &c.  Canal  Co.  v.  Lee,  22 
N.  J.  L.  243;  Tinsman  v.  Belvidere 
Del.  R.  Co.,  26  N.  J.  L.  148:  Bar- 
clay R.  &c.  Co.  V.  Ingham.  36  Pa. 
St.  194:  Gulf  &c.  R.  Co.  v.  Dona- 
hoo,  59  Tex.  128;  Arimond  v. 
Green  Bay  &c.  Canal  Co.,  31  Wis. 
316.  See  also  Broadway  Mfg.  Co. 
v.  Leavenworth  &c.  R.  Co..  81 
Kans.  616,  106  Pao.  1034,  28  L.  R. 
A.  (N.  S.)  157  and  note  (right  to 
damages  where  this  is  caused  by 
negligent  construction).  An  occa- 
sional  flooding  is  sufificient  to  give 


the  right  to  compensation.  Weaver 
v.  Mississippi  &c.  Boom  Co.,  28 
Minn.  534,  11  N.  W.  114.  There  is 
ordinarily  no  liability  for  flooding 
caused  by  ice  gorges  forming  at  a 
bridge.  Gulf  &c.  R.  Co.  v.  Pom- 
eroy,  67  Tex.  498,  3  S.  W.  722; 
Bellinger  v.  New  York  Cent.  R. 
Co.,  23  N.  Y.  42;  Omaha  &c.  R. 
Co.  V.  Brown,  14  Nebr.  170,  15 
N.  W.  321.  Unless  the  damage  was 
caused  by  negligent  and  improper 
construction  of  the  bridge.  Ab- 
bott V.  Kansas  City  &c.  R.  Co.,  83 
Mo.  271,  53  Am.  Rep.  581. 

■''6  Bentonville  R.  Co.  v.  Baker. 
45  Ark.  252;  Gillham  v.  Madison 
Co.  R.  Co..  49  111.  484,  95  Am.  Dec. 
627;  Illinois  &c.  R.  Co.  v.  Fehr- 
inger,  82  111.  129;  Chicago  &c.  R. 
Co.  V.  Carey,  90  III.  514;  Drake  v. 
Chicago  &c.  R.  Co.,  63  Iowa  302, 
19  N.  W.  215,  50  Am.  Rep.  746; 
Payne  v.  ^lorgan's  La.  &c.  R.  Co.. 
38  La.  Ann.  164,  58  Am.  Rep.  174; 
Raleigh  &c.  R.  Co.  v.  Wicker,  74 
N.  Car.  220;  Gulf  &c.  R.  Co.  v. 
Helsley,  62  Tex.  593;  Sabine  &c. 
R.  Co.  v.  Johnson,  65  Tex.  389; 
Gulf  &c.  R.  Co.  v.  Hollidaj'.  65 
Tex.  512;  Owens  v.  ^lissauri  Pac. 
R.  Co..  67  Tex.  679,  4  S.  W.  593. 
The  opposite  doctrine  is  held  in 
man}-  of  the  states.  Adams  v. 
Walker,  34  Conn.  466,  91  Am.  Dec. 


£1234 


RAILROADS 


loS 


collected  into  a  channel  and  discharged  upon  land  where  it  is  not 
accustomed  to  flow."     The  question  of  the  right  of  the  owner  of 


742;   Cairo   &c.   R.   Co.  v.  Stevens, 
73    Ind.  278,  38  Am.    Rep.   139  and 
note;    Shelby ville    &c.   Tpk.    Co.   v. 
Green,  99  Ind.  205;  Jean  v.   Penn- 
sylvania   Co.,    9    Ind.    App.    56,   36 
N.  E.  159;  Kansas  City  &c.  R.  Co. 
V.  Riley,  33  Kans.  374,  6  Pac.  581; 
Greeley  v.  Maine  Cent.   R.   Co.,  53 
Maine  200;  Morrison  v.  Bucksport 
&c.  R.   Co.,  67  Maine  353;   Luther 
v.      Winnisimmet      Co.,      9      Cash. 
(Mass.)  171;  Abbott  v.  Kansas  City 
&c.  R.  Co.,  83  Mo.  271,  53  Am.  Rep. 
581 ;  Sweet  v.  Clutts,  50  N.  H.  439, 
9  Am.  Rep.  276  and  note;  Bowlsby 
V.   Speer,  31    N.  J.   L.  351,  86  Am. 
Dec.  216;    Bellinger   v.   New   York 
Cent.  R.  Co.,  23  N.  Y.  42;  Limerick 
&  C.  Tpk.  Co.'s  Appeal,  80  Pa.  St. 
425:  Wakefield  v.  Newell,  12  R.  I. 
75.  34  Am.   Rep.   598;    Chatfield   v. 
Wilson,  28  Vt.  49;  Waters  v.   Bay 
View,  61  Wis.  642,   21   N.  W.  811. 
Even  in  the  states  holding  this  lat- 
ter doctrine,  it  is  conceded  that  if 
the  construction  of  a  railroad  less- 
ens the  value  of  adjoining  property 
by   reason  of  the  detention,   diver- 
sion,   or    accumulation    of    surface 
water,    compensation    for    such    in- 
jury may  be  included  in  the  assess- 
ment of  damages.     Walker  v.  Old 
Colony   &c.   R.    Co.,    103   Mass.   10. 
4   .\m.   Rep.   509;   Eaton   v.   Boston 
&c.  R.  Co.,  51   N.   H.   504.   12  Am. 
Rep.    147:    Morrison    v.    Bucksport 
R.    Co.,    67    Maine  353;    Pflegar    v. 
Hastings  &c.  R.  Co.,  28  Minn.  510. 
11  N.  W.  72.     In  Cairo  &c.  R.  Co. 
V.  Brevoort,  62  Fed.  129.  25   L.   R. 
A.  527  and  note,  the  conflicting  au- 
thorities   as    to    what     constitutes 


surface  water  arc  carefully  re- 
viewed and  it  is  held  that  the 
waters  of  a  river  which,  at  times 
of  ordinary  flood,  spread  beyond 
its  banks,  but  form  one  body  of 
water  flowing  within  its  accus- 
tomed boundaries  during  such 
floods,  are  not  surface  waters 
within  the  rule  announced  in  some 
jurisdictions,  that  they  may  be 
turned  upon  the  land  of  others  by 
one  seeking  to  keep  them  off  his 
own  land. 

"'Jacksonville  R.  Co.  v.  Cox.  91 
111.  500;  Cairo  &c.  R.  Co.  v.  Ste- 
vens, 73  Ind.  278,  38  Am.  Rep.  139 
and  note;  Weis  v.  Madison,  75  Ind. 
241,  39  Am.  Rep.  135;  Crawfords- 
ville  V.  Bond,  96  Ind.  236;  Cubit 
v.  O'Dett,  51  Mich.  347,  16  N.  W. 
679;  Pye  v.  Mankato,  36  Minn.  373. 
31  N.  W.  863,  1  Am.  St.  671;  Mc- 
Corniiok  v.  Kansas  City  &c.  R.  Co., 
70  Mo.  359,  35  Am.  Rep.  431  and 
note;  Chase  v.  New  York  Central 
R.  Co.,  24  Barb.  (N.  Y.)  273;  Hud- 
dleston  v.  West  Bellvue,  111  Pa. 
St.  110,  2  Atl.  200;  Galveston  &c. 
R.  Co.  V.  Tait.  63  Tex.  223:  Fort 
Worth  &c.  R.  Co.  v.  Scott,  2  Tex. 
Civ.  App.  137;  Whalley  v.  Lanca- 
shire &c.  R.  Co..  L.  R.  13  Q.  B. 
Div.  131.  aftirmed  16  Q.  B.  Div. 
227.  See  Walker  v.  Old  Colony 
&c.  R.  Co..  103  Mass.  10,  4  Am. 
Rep.  509;  Ogburn  v.  Connor,  46 
Cal.  346,  13  Am.  Rep.  213:  A^linor 
V.  Wright,  16  La.  Ann.  151;  Tootle 
V.  Clifton.  22  Ohio  St.  247,  10  Am. 
Rep.  732.  "The  reasoning  which 
leads  to  the  rule  forbidding  the 
owner    of    a    field    to    overflow    an 


r89 


APl'HOl'KIATlOK    rXDER    TIIK    KMIN  KNT    DOMAIN 


§  1234 


land  on  one  side  of  a  navigable  river,  which  forms  the  boundary 
between  two  states,  to  construct  a  levee  and  turn  the  waters  upon 
h'.nd  on  the  opposite  side  of  the  river  is  not  a  local  question,  but 
depends  upon  general  principles  of  law,  and  the  decisions  of  a 
state  court  in  conflict  with  those  principles  are  not  binding  upon 
the  federal  courts. ^^  It  is  a  vexed  question  as  to  whether  any 
interference  by  a  railroad  company  with  the  right  of  an  adjoining 
land-owner  to  lateral  support  constitutes  a  taking/''  The  weight 
of  authority,  however,  in  accordance  with  what  seems  to  us  the 
better  reason,  is  to  the  effect  that  the  destruction  of  such  lateral 
support  by  excavating  on  the  company's  own  land  so  near  that  of 
the  adjoining  owner  as  to  cause  his  land  to  slide  into  the  excava- 
tion is  a  taking  for  which  he  is  entitled  to  compensation  regard- 
less of  any  question  of  negligence  on  the  part  of  the  railroad 
company. ^°     A  railroad  company  is  not  liable  in  damages,  as  a 


adjoining  field  by  obstructing  a 
natural  water  course  fed  by  re- 
mote springs  applies  with  equal 
force  to  the  destruction  of  a  nat- 
ural channel  through  which  the 
surface  waters  derived  from  the 
rains  or  snow  falling  on  such  fields 
are  wont  to  flow.  What  difference 
does  it  make  in  principle  whether 
the  water  comes  directly  upon  the 
field  from  the  clouds  above  or  has 
fallen  upon  remote  hills  and  comes 
thence  in  a  running  stream  upon 
the  surface,  or  rises  in  a  spring  in 
the  upper  fields  and  flows  upon 
the  lowers."  Lawrence,  J.,  in 
Gormley  v.  Sandford,  52  III.  158. 
Contra  Morrison  v.  Bucksport  &c. 
R:  Co.,  67  Maine  353;  Atchison  &c. 
R.  Co.  V.  Hammer,  22  Kans.  763. 
31  Am.  Rep.  216;  Abbott  v.  Kansas 
City  &c.  R.  Co.,  83  Mo.  271,  53 
Am.  Rep.  581.  And  see  Raleigh 
&c.  R.  Co.  v.  Wicker,  74  N.  Car. 
220. 

"8  Cairo  &c.  R.  Co.  v.  Brevoort,  62 
Fed.  129,  25  L.  R.  A.  527  and  note. 


'9  Most  of  the  authorities  pro 
and  con  are  cited  in  the  principal 
and  dissenting  opinion  in  Parke  v. 
Seattle,  5  Wash.  1,  20  L.  R.  A.  68, 
34  Am.  St.  839. 

80  Note  to  Kansas  City  &c.  R. 
Co.  V.  Schwake,  70  Kans.  141,  68 
L.  R.  A.  673n,  701,  78  Pac.  431;' 
O'Brien  v.  St.  Paul,  25  Minn.  331, 
33  Am.  Rep.  470;  Dyer  v.  St.  Paul, 
27  Minn.  457,  8  N,  W.  272;  Nich- 
ols V.  Duluth,  40  Minn.  389,  42  N. 
W.  84,  12  Am.  St.  743;  McCullough 
V.  St.  Paul  &c.  R.  Co.,  52  Minn. 
12,  53  N.  W.  802;  Williams  v.  Nat- 
ural Bridge  &c.  Co.,  21  Mo.  580: 
note  to  Larson  v.  Metropolitan  St. 
R.  Co.,  110  Mo.  234,  19  S.  W.  416. 
16  L.  R.  A.  330,  33  Am.  St.  439, 
446,  467;  Eaton  v.  Boston  &c.  R. 
Co.,  51  N.  H.  504,  12  Am.  Rep.  147; 
Ryckman  v.  Gillis,  6  Lans.  (N.  Y.) 
79;  Ludlow  v.  Hudson  River  R. 
Co..  6  Lans.  (N.  Y.)  128:  Keating 
V.  Cincinnati,  38  Ohio  St.  141,  43 
Am.  Rep.  421;  Mosier  v.  Oregon 
Nav.  Co.,  39  Ore.  256,  64  Pac.  453. 


^  1234 


RAILROADS 


790 


rule  at  least,  for  remote  and  indirect  consequences  of  lawful  acts 
done  on  its  own  land.  Thus,  where  a  railroad,  by  niakint;"  ex- 
cavations on  its  own  land  drained  a  spring"  on  adjoining"  land,  it 
was  held  not  liable  for  the  resulting"  damages.*'^  But  it  has  been 
held  that  such  an  injury  to  springs  or  wells  on  a  tract  of  land 
would  be  a  proper  sul)ject  for  consideration  in  assessing  damages 
for  the  condemnation  of  a  right  of  way  across  it.**-  The  construc- 
tion of  a  railroad  upon  land  in  which  an  easement  for  a  turn- 
pike,^'' or  a  canaF*  has  been  granted,  entitles  the  owner  of  the  fee 
to  damages  for  the  additional  servitude.*^     This  branch   of  our 


87  Am.  St.  652,  653  (citing  text); 
Richardson  v.  Vermont  &c.  R.  Co., 
25  Vt.  465,  60  Am.  Dec.  283; 
Stearns  v.  Richmond,  88  Va.  992, 
14  S.  E.  847,  29  Am.  St.  758  (dam- 
ages, also,  allowed  for  building, 
the  weight  of  which  did  not  con- 
tribute to  the  subsidence  of  the 
land);  Elliott  Roads  and  Streets 
(3rd  ed.),  §  229.  Contra  Boothby 
V.  Androscoggin  &c.  R.  Co.,  51 
.Maine  318;  Hortsman  v.  Covington 
■&c.  R.  Co.,  18  B.  Mon.  (Ky.)  218. 
See  also  Northern  Transportation 
Co.  V.  Chicago,  99  U.  S.  635,  25 
L.  ed.  336;  Radcliff  v.  Mayor  &c., 
4  N.  Y.  195,  53  Am.  Dec.  357.  It 
would  clearly  seem  to  be  at  least 
within  a  constitutional  provision 
requiring  compensation  where 
property  is  taken  or  "damaged." 
Farnandis  v.  Great  Northern  R. 
Co..  41  Wash.  486,  84  Pac.  18,  5 
L.  R.  A.  (N.  S.)   1086. 

''I  Hougan  v.  Milwaukee  &c.  R. 
Co.,  35  Iowa  558,  14  Am.  Rep.  502; 
Aldrich  v.  Cheshire  R.  Co.,  21  N. 
H.  359,  53  Am.  Dec.  212;  Waffle  v. 
New  York  Cent.  R.  Co.,  58  Barb. 
(N.  Y.)  413;  Regina  v.  Metropoli- 
tan Board,  3  B.  &  S.  710.  But  see 
Lord  V.  Meadville  &c.  Co.,  135  Pa. 


St.  122,  19  Atl.  1007,  8  L.  R.  A. 
202,  20  Am.  St.  864,  2  Am.  R.  & 
Corp.  Rep.  744;  Sheldon  v.  Boston 
&c.  R.  Co.,  172  Mass.  180,  51  N.  E. 
1078. 

s-  See  Trowbridge  v.  Brookline, 
144  Mass.  139,  10  N.  E.  796;  Parker 
V.  Railroad  Co.,  3  Cush.  (Mass.) 
107,  50  Am.  Dec.  709  and  note.  In 
Cleveland  &c.  R.  Co.  v.  Hadley, 
179  Tnd.  429,  101  N.  E.  473,  45  L. 
R.  A.  (N.  S.)  790,  it  is  said  that 
damages  awarded  for  condemna- 
tion of  a  right  of  way  for  railway 
purposes  will  be  presumed  to  in- 
clude compensation  for  injury  to 
springs  and  wells. 

s-'  Ellicottville  &c.  Plank  R.  Co. 
V.  Buffalo  &c.  R.  Co.,  20  Barb.  (N. 
V.)  644;  :\Iifflin  v.  Railroad  Co.,  16 
Pa.  St.  182;  Mahon  v.  New  York 
Cent.  R.  Co.,  24  N.  Y.  658;  Brain- 
ard  V.  Missis(]U()i  R.  Co.,  48  Vt. 
107. 

s-t  La  Fayette  &c.  R.  Co.  v.  Mur- 
dock,  68  Ind.  137:  Hatch  v.  Cin- 
cinnati &c.  R.  Co.,  18  Ohio  St.  92. 

8"'  If  the  railroad  is  not  empow- 
ered to  condemn  the  canal  lands, 
a  transfer  by  the  canal  company 
of  its  canal  bed  to  a  railroad  cor- 
poration     for      railroad      purposes 


'91 


AI'PKOPRIATION    UNDER    THE    EMINENT    DOMAIN 


§  1234 


subject,  however,  will  be  fully  treated  when  we  come  to  consider 
railroads  in  highways.**'  Where,  as  in  most  jurisdictions,  the 
use  of  a  street  by  a  street  railway  is  regarded  as  a  legitimate  use 
thereof,  and  not  an  additional  burden,  the  construction  of  such 
a  railway  across  the  tracks  of  a  commercial  railroad  where  they 
intersect  a  street  by  a  company  which  is  authorized  by  the 
municipality  to  do  so  is  not  such  a  taking  of  the  property  of  the 
railroad  company  as  to  entitle  it  to  compensation.^^  So,  it  has 
been  held  that  an  electric  railway  may  be  operated  in  a  street 
without  compensation  to  a  telegraph  or  telephone  company 
w  hich  lias  a  prior  grant  to  use  the  street.**  The  construction  of 
.-I  telegraph  line  upon  a  railroad  company's  right  of  way  is,  how- 
ever, a  taking  of  its  property  for  which  it  is  entitled  to 
compensation.^''  But  it  has  been  held  that  the  railroad  com])anv 
m.ay  erect  such  a  line  on  its  right  of  way  for  its  own  use  without 


amounts  to  such  an  abandonment 
that  the  land  reverts  to  the  owner 
of  the  fee,  and  the  railroad  com- 
pany must  pay  him  the  full  value 
of  the  land.  Pittsburgh  &c.  R.  Co. 
V.  Bruce,  102  Pa.  St.  23. 

86  Post,  Chapter  XLIV. 

S7  Chicago  &c.  R.  Co.  v.  Whiting 
&c.  St.  Ry.  Co.,  139  Ind.  297,  38 
N.-E.  604,  47  Am.  St.  264,  26  L.  R. 
A.  337.  11  Lewis'  Am.  R.  &  Corp. 
Rep.  507:  South  East  Ry.  Co.  v. 
Evansville  Ry.  Co.,  169  Ind.  339, 
82  N.  E.  765,  13  L.  R.  A.  (N.  S.) 
916;  Pittsburgh  Ry.  Co.  v.  Muncie 
Trac.  Co.,  174  Ind.  167,  91  N.  E. 
600  (interurban  railway  at  crossing 
in  city) ;  New  York  &c.  R.  Co.  v. 
Bridgeport  Traction  Co.,  65  Conn. 
410,  32  Atl.  953,  29  L.  R.  A.  367 
(electric  railwaj') ;  Chicago  &c.  R. 
Co.  V.  West  Chicago  &c.  Co.,  156 
Til.  255,  40  N.  E.  1008,  29  L.  R.  A. 
485.  See  also  Southern  Ry.  Co.  v. 
Atlanta  Ry.  Co.,  Ill  Ga.  679.  36 
S.  E.  873,  51  L.  R.  A.  125:  Galves- 
ton R}-.  Co.  V.  Houston  Elec.  Co., 


57  Te.x.    Civ.  App.   170,   122  S.   W. 
287. 

88  Cincinnati  &c.  R.  Co.  v.  City 
&c.  R.  Co.,  48  Ohio  St.  390,  27 
N.  E.  890.  12  L.  R.  A.  534,  29  Am. 
St.  559,  4  Am.  R.  &  Corp.  Rep. 
533:  Cumberland  Tel.  &c.  Co.  v. 
United  Electric  R.  Co.,  93  Tenn. 
492,  29  S.  W.  104,  27  L.  R.  A.  236, 
10  Am.  R.  &  Corp.  Rep.  549  and 
note.  See  also  Cumberland  Tel. 
&c.  Co.  V.  United  Electric  R.  Co., 
42  Fed.  273,  12  L.  R.  A.  544:  Con- 
solidated Tract.  Co.  v.  South  Or- 
ange &c.  Co.,  56  N.  J.  Eq.  569,  40 
Atl.  15:  National  Tel.  Co.  v.  Ba- 
ker, 62  L.  J.  Ch.  699.  But  it  is  held 
by  Pickler,  J.,  in  the  second  case 
above  cited  injurj'  to  the  telephone 
plant  bj^  conduction  amounts  to  a 
taking. 

89  Southwestern  R.  Co.  v.  South- 
ern &c.  TeJ.  Co.,  46  Ga.  43,  12  Am. 
Rep.  585:  Western  Union  Tel.  Co. 
v.  Rich,  19  Kans.  517,  27  Am.  Rep. 
159;  Atlantic  &c.  Tel.  Co.  v.  Chi- 
cago &c.  R.  Co.,  6  Diss.  (U.  S.  C. 


§  1234 


RxVILROADS 


702 


additional  compensation  to  the  land-owner,^°  although  the  tele- 
graph company  can  not  do  so.®^  The  use  of  a  public  toll  bridge 
by  an  electric  railway,  on  payment  of  adequate  toll,  has  been  held 
in  a  recent  case  not  to  be  a  taking  of  property  under  the  eminent 
domain,''-  and  it  has  also  been  held  in  another  recent  case  that  a 
bridge  company  which  had  long  permitted  its  bridge  to  be  used 
by  railroads  and  induced  large  expenditures  of  money  by  street 
railways,  had  dedicated  its  bridge  as  a  highway  for  use  l)y  street 
railways  as  well  as  other  travel,  and  that  a  street  railway  company 
had  a  right  to  use  it  upon  paying  a  fair  rate  of  toll.°^  A  railroad 
compan}^  acquires  its  right  of  way  for  railroad  purposes,  in  the 
manner  and  to  the  extent  that  rights  of  way  are  ordinarily  used 
by  railroad  companies  as  the  public  interest  may  require.  So,  as 
it  is  customary  for  railroad  companies  to  permit  other  companies 
to  use  its  tracks  in  common  with  itself,  especially  in  cities,  for 
terminal  purposes,  and  as  the  public  interest  requires  that  they 
should  do  so,  the  abutting  land-owner  is  not  entitled  to  addi- 
tional compensation  for  such  use  as  for  the  imposition  of  an  ad- 
ditional burden.^*     But  one  company  can  not  thus  authorize  a 


C.)  158.  1  Am.  Elec.  Cas.  111.  See 
generallj^  as  to  condemnation  by 
telegraph  company  in  such  cases, 
Union  Pac.  R.  Co.  v.  Colorado  &c. 
R.  Co.,  30  Colo.  133,  69  Pac.  564 
and  note,  97  Am.  St.  106;  Postal 
Tel.  Cable  Co.  v.  Oregon  Short 
Line  R.  Co.,  23  Utah  474,  65  Pac. 
735,  90  Am.  St.  705;  Fort  Worth 
&c.  Ry.  Co.  V.  Southwestern  Tel. 
Co.,  96  Tex.  160,  71  S.  W.  270,  60 
L.  R.  A.  145.  See  as  to  appropria- 
tion of  railroad  property  for  other 
purposes,  Denver  Power  &c.  Co.  v. 
Colorado  &c.  R.  Co.,  30  Colo.  204, 
69  Pac.  568,  60  L.  R.  A.  383;  Pitts- 
burgh &c.  R.  Co.  V.  Sanitary  Dist., 
218  111.  286,  75  N.  E.  892. 

""Western  Union  Tel.  Co.  v. 
Rich,  19  Kans.  517,  27  Am.  Rep. 
1.S9;  Prather  v.  Western  Union  Tel. 
Co.,  89  Ind.  501. 


■"  American  Tel.  Co.  v.  Pcarce, 
71  Md.  535,  18  Atl.  910,  7  L.  R.  A. 
200  and  note. 

02  Pittsburgh  &c.  R.  Co.  v.  Point 
Bridge  Co.,  165  Pa.  St.  Z7,  30  Atl. 
511,  26  L.  R.  A.  323.  See  also 
Pjerks  Co.  v.  Reading  City  Pass.  R. 
Co.,  167  Pa.  St.  102.  31  Atl.  474, 
66Z. 

^^  Covington  &c.  Bridge  Co.  v. 
South  Covington  &c.  St.  R.  Co.,  93 
Ky.  136,  19  S.  W.  407,  15  L.  R.  A. 
828.  Compare  however  Floyd  Co. 
v.  Rome  St.  R.  Co.,  77  Ga.  614,  3 
S.  E.  3;  United  States  v.  Parkers- 
burg  &c.  R.  Co.,  134  Fed.  969. 

94  Miller  v.  Green  Bay  &c.  R. 
Co.,  59  Minn.  169,  60  N.  W.  1006, 
26  L.  R.  A.  443,  11  Am.  R.  &  Corp. 
Rep.  246. 


793 


APPROPRIATION    UNDER    THE   EMINENT   DOMAIN 


§  1285 


second  company  to  construct  and  use  additional  tracks  upon  the 
rig-ht  of  way  of  the  former  company  without  additional  compen- 
sation to  the  land-owner."* 

§  1235  (978).  Property  damaged  or  injured — Constitutional 
and  statutory  provisions. — Because  of  the  instances  in  which  the 
infliction  of  injuries  upon  private  property  was  held  not  to  be  a 
taking-,  all  of  those  states  which  have  adopted  new  constitutions 
v.'ithin  the  past  twenty-five  years  have  added  a  provision  that 
property  shall  not  be  damaged  by  the  construction  of  public 
works  without  compensation.  Similar  provisions  have  been 
made  by  statute  in  several  of  the  states^^  and  in  England.^^  In 
several  cases,  it  is  said  in  general  terms  that  such  a  provision  in- 
cludes all  damage  arising  from  the  exercise  of  the  right  of 
eminent  domain  which  causes  a  diminution  in  the  value  of  private 
propertv.^^     This  statement,  however,  seems  a  little  too  broad. 


95  Blakely  v.  Chicago  &c.  R.  Co., 
34  Nebr.  284,  51  N.  W.  767,  6  Am. 
R.  &  Corp.  Rep.  262;  Fort  Worth 
&c.  R.  Co.  V.  Jennings,  76  Tex. 
?,7Z,  13  S.  W.  270,  2  Am.  R.  &  Corp. 
Rep.  121;  Piatt  v.  Pennsylvania 
Co..  43  Ohio  St.  228,  1  N.  E.  420. 
This  is  a  different  thing  from  lay- 
ing additional  tracks  by  a  company 
upon  its  right  of  way  for  its  own 
use.  which  may  be  done  without 
additional  compensation.  East  Ten- 
nessee &c.  R.  Co.  V.  Telford,  89 
Tenn.  293.  10  L.  R.  A.  855,  Am.  R. 
&  Corp.  Rep.  364;  White  v.  Chi- 
cago &c.  R.  Co.,  122  Ind.  317,  23 
N.  E.  782,  2  Am.  R.  &  Corp.  Rep. 
138.  23  N.  E.  782,  7  L.  R.  A.  257. 

o"  Bradley  v.  New  York  &c.  R. 
Co.,  21  Conn.  294;  Nicholson  v. 
New  York  &c.  R.  Co.,  22  Conn.  74. 
S6  Am.  Dec.  390;  St.  Louis  &c.  R. 
Co.  V.  Capps,  67  111.  607,  72  111.  188; 
Drady  v.  D.  M.  &c.  R.  Co.,  57  Iowa 
393,  10  N.  W.  754;  Parker  v.  Bos- 


ton &c.  R.  Co.,  3  Cush.  (Mass.) 
107,  50  Am.  Dec.  709  and  note; 
Gardner  v.  Boston  &c.  R.  Co.,  9 
Cush.  (Mass.)  1.  See  also  Whit- 
ney v.  Commonwealth,  190  Mass. 
531,  77  N.  E.  516,  517;  Hyde  v. 
Fall  River,  189  Mass.  439,  75  N.  E. 
953.  But  compare  McSweeney  v. 
Commonwealth,  185  Mass.  371.  70 
N.   E.  429. 

9"  Knock  V.  Metropolitan  R.  Co., 
L.  R.  4  C.  P.  131.  It  is  held  under 
the  English  statute  that  no  com- 
pensation can  be  claimed  for  any 
personal  inconvenience  or  injury 
not  connected  with  real  property. 
Rickets  v.  Metropolitan  R.  Co.,  34 
L.  J.  Q.  B.  257:  Beckett  v.  Midland 
R.  Co.,  L.  R.  3  C.  P.  82,  Z7  L.  J. 
C.  P.  11;  Bird  v.  Great  Eastern  R. 
Co..  34  L.  J.  C.  P.  366. 

f^s  Chicago  &c.  R.  Co.  v.  Hazels. 
26  Nebr.  364:  City  of  Omaha  v. 
Kramer,  25  Nebr.  489,  13  hm.  St. 
504;    Stehr  v.    Mason    City    &c.    R. 


12;]5 


i;  \ILROADS 


794 


'i  here  must  be  an  interference  with  some  right,  either  appurtc 
nant  to  the  property  or  which  can  be  made  use  of  in  connection 
with  it,  as  well  as  depreciation  in  Naluc.'"'  In  England,  where 
the  statute  requires  compensation  fen-  property  "injuriously  af- 
fected," the  following  rule  of  construction  has  been  adopted  : 
"When  by  the  constructit)n  of  works  there  is  a  physical  interfer- 
ence with  any  right,  public  or  private,  which  the  owners  or  oc- 
cupiers of  property  are  by  law  entitled  to  make  use  of,  in  con- 
nection with  such  i)roperty,  and  which  right  gives  an  additional 
market  value  to  such  property,  apart  from  the  uses  to  which  any 
particular  owner  or  occupier  might  put  it,  there  is  a  title  to 
compensation,  if  by  reason  of  such  interference,  the  property,  as 
a  property  is  lessened  in  value. "^  So,  in  a  case  which  is  now 
regarded  as  one  of  the  leading  cases  upon  the  subject  in  this 
country,  it  is  said  that  "it  must  appear  that  there  has  been  some 
direct  physical  disturbance  of  a  right,  either  public  or  private, 
which  the  plaintiff  enjoys  in  connection  with  his  property,  and 
which  gives  to  it  an  additional  value,  and  that  l)y  reason  of  such 
disturbance  he  has  sustained  a  special  damage  with  respect  to 
his  property  in  excess  of  that  sustained  by  the  public  generally. "'- 


Co..  n  Ncbr.  641,  110  N.  W.  702, 
703.  Compare  Gottschalk  v.  Chi- 
cago &c.  R.  Co.,  14  Nebr.  550.  560. 
^9  See  Hot  Springs  R.  Co.  v. 
Williams,  45  Ark.  429;  Austin  v. 
Augusta  Terminal  Ry.  Co.,  108  Ga. 
671,  34  S.  E.  852,  47  L.  R.  A.  755 
and  authorities  cited  in  following 
notes.  And  it  is  generally  held 
that  there  must  be  something  more 
than  mere  "consequential"  damage 
as  that  term  is  ordinarily  used  in 
law.  Gordon  v.  Ellenville  &c.  R. 
Co..  195  N.  Y.  137,  88  N.  E.  14.  47 
L.  R.  A.  (N.  S.)  462  and  note;  also 
note  in  2>^  L.  R.  A.  (N.  S.)  741. 
In  City  of  St.  Louis  v.  St.  Louis 
&c.  Ry.  Co.,  272  Mo.  80,  197  S.  W. 
107,  it  is  said  that,  so  far  as  con- 
cerns consequential  damages  to  re- 
mainder  of   tract    from    the    actual 


taking  of  part  the  addition  of  the 
words  "or  damaged"  did  not 
change  the  law. 

1  Metropolitan  Board  of  Works 
V.  McCarthy,  L.  R.  7  E.  &  L  App. 
243.  253.  Approved  and  followed 
in  Gainesville  &c.  R.  Co.  v.  Hall, 
78  Tex.  169,  14  S.  W.  259,  9  L.  R. 
A.  298  and  note,  22  Am.  St.  42,  46. 

-  Rigney  v.  Chicago,  102  111.  64. 
The  rule  is  stated  in  similar  lan- 
guage in  Peel  v.  Atlanta,  85  Ga. 
138,  11  S.  E.  582,  8  L.  R.  A.  787, 
2  Am.  R.  &  Corp.  Rep.  413,  and  in 
Chicago  v.  Taylor,  125  U.  S.  161, 
8  Sup.  Ct.  820,  31  L.  ed.  638.  and 
these  cases  are  approved  in  Stehr 
v.  Mason  City  &c.  R.  Co.,  11  Nebr. 
641,  110  N.  W.  702,  703,  in  which 
it  is  held  that  "where  an  ordinance 
is  passed  granting  the  use  of  pub- 


795 


APPROPRIATION    I'XDER    THE    EMINENT    DOMAIN 


§  1286 


As  said  by  still  another  court,  the  object  of  the  constitutional 
and  statutory  provisions  to  which  we  have  referred  "was  to  grant 
relief  in  cases  where  there  was  no  direct  injury  to  the  real  estate 
itself,  but  some  physical  disturbance  of  a  right  which  the  owner 
possesses  in  connection  with  his  estate,  by  reason  of  which  he 
sustains  a  special  injury  to  such  property  in  excess  of  that 
sustained  by  the  pul)lic  at  large. "'^ 

§  1236.  Property  damaged — Illustrative  cases. — Where  part 
of  a  tract  is  taken  compensation  should  be  made  for  damages  to 
the  entire  tract,  and  where  two  lots  were  occupied  by  the  build- 
ings of  a  bre\very,  it  was  held  that  they  constituted  a  single  tract, 
olthough  they  were  separated  by  an  alley,  mider  which  connec- 
tion was  made  between  the  several  parts  of  the  brewery  estab- 
lishment.* But  the  general  rule  is  that  where  only  part  of  a  tract 
of  land  is  taken,  the  remainder  is  not  damaged,  within  the  mean- 
ing of  the  law,  unless  its  value  is  thereby  diminished.'     It  is  not 


lie  streets  to  a  railroad  company 
for  the  construction  and  operation 
of  its  road,  an  abutting  property 
owner  can  not  be  prevented  from 
recovering  from  the  railroad  com- 
pany damages  to  his  property 
caused  by  the  construction  of  the 
railroad  in  and  across  the  streets 
by  inserting  in  such  ordinance  a 
provision  vacating  the  portions  of 
the  streets  to  be  so  used  bj'  the 
railroad  company."  But  compare 
Scrutchfield  v.  Choctaw  &c.  R.  Co., 
18  Okla.  308,  88  Pac.  1048. 

^  Gottschalk  v.  Chicago  &c.  R. 
Co.,  14  Nebr.  550,  560,  16  N.  W. 
475,  17  N.  W.  120. 

*  Hannibal  Bridge  Co.  v.  Schau- 
bacher,  57  Mo.  582.  See  also  Sharp 
V.  United  States,  191  U.  S.  341,  24 
Sup.  Ct.  114,  48  L.  ed.  211.  Where 
village  lots  were  merely  held  for 
sale,  the  fact  that  they  were  sepa- 
rated by  a  street  was  held  conclu- 


sive of  the  fact  that  they  were  sep- 
arate tracts.  Pittsburgh  &c.  R.  Co. 
V.  Reich,  101  111.  157.  See  also 
Wellington  v.  Boston  &c.  R.  Co., 
164  Mass.  380,  41  N.  E.  652;  Gorgas 
V.  Philadelphia  &c.  R.  Co.,  215  Pa. 
St.  501,  64  Atl.  680.  114  Am.  St. 
974. 

°  Metropolitan  &c.  R.  Co.  v. 
Stickney,  150  111.  362,  37  X.  E. 
1098,  26  L.  R.  A.  773,  10  Am.  R. 
&  Corp.  Rep.  1.  See  also  Somers 
V.  ]\Ietropolitan  &c.  R.  Co..  129  N. 
Y.  576.  29  N.  E.  802,  14  L.  R.  A. 
344.  And  in  general  the  damages 
are  confined  to  the  particular  tract 
or  parcel  and  do  not  include  sepa- 
rate and  independent  tracts.  1  El- 
liott Roads  &  Sts.  (3rd  ed.), 
§§  288.  289,  and  cases  cited.  See 
also  Illinois  Cent.  R.  Co.  v.  Ros- 
kemmer,  264  111.  103,  105  N.  E. 
695. 


§  1286 


KAILKOADS 


796 


necessary,  however,  that  ain-  part  of  the  land  should  be  actually 
taken  to  bring  the  case  within  the  meaning  of  provisions  to  which 
we  have  referred.  Thus,  depreciation  in  the  value  of  j)r(i])crty 
caused  by  noise,  vibration,  smoke  and  cinders  from  passing  trains 
has  been  held  in  many  jurisdictions  to  be  a  damage  or  injury  to 
the  owner's  property  for  which  he  is  entitled  to  compensation 
under  such  provisions,  although  none  of  his  land  is  taken  in  the 
construction   of  the  road.*^     Hut   it   is   held   otherwise   in   a   few 


•■>  Idaho  &c.  R.  Co.  v.  Nagle,  184 
Fed.  598;  Stone  v.  Fairbury  &c.  R. 
Co.,  68  III.  394.  18  Am.  R.  556; 
Lake  Erie  &c.  R.  Co.  v.  Scott,  132 
III.  429,  24  N.  E.  78,  8  L.  R.  A.  330; 
Omaha  &c.  R.  Co.  v.  Janecek.  30 
Nehr.  276,  46  N.  W.  478,  27  Am. 
St.  399,  3  Am.  R.  &  Corp.  Rep. 
268  and  note;  Railway  Co.  V.Gard- 
ner, 45  Ohio  St.  309,  13  N.  E.  69; 
Gainesville  &c.  R.  Co.  v.  Hall,  78 
Tex.  169,  11  S.  W.  582,  9  L.  R.  A. 
298,  22  Am.  St.  42;  Missouri  &c. 
R.  Co.  V.  Calkins  (Tex.  Civ.  App.), 
79  S.  W.  852;  St.  Louis  &c.  R.  Co. 
V.  Shaw  (Tex.  Civ.  App.),  88  S.  W. 
817;  Tidewater  R.  Co.  v.  Shartzer, 
107  Va.  562,  59  S.  E.  407,  17  L.  R. 
A.  (N.  S.)  1053  and  note:  Turner 
V.  Sheffield  &c.  R.  Co..  10  Mees.  & 
W.  425;  East  &c.  R.  Co.  v.  Gattke, 
20  L.  J.  Ch.  (N.  S.)  217.  See  also 
Chicago  &c.  R.  Co.  v.  Loeb,  118 
111.  203.  8  N.  E.  460,  59  Am.  Rep. 
341  and  note;  Muhlker  v.  New 
York  &c.  R.  Co..  197  U.  S.  544.  25 
Sup.  Ct.  522,  49  L.  ed.  872;  Mason 
City  &c.  Ry.  Co.  v.  Wolf,  148  Fed. 
961;  Chicago  &c.  R.  Co.  v.  Darke, 
148  111.  226,  35  N.  E.  750;  Jcffer- 
sonville  &c.  R.  Co.  v.  Estcrle.  13 
Rush  (Ky.)  667;  Illinois  Cent.  R. 
Co.  v.  Elliott,  129  Ky.  121.  HO  S. 
W.  817;  Mathias  v.  Minneapolis 
&c.  Ry.  Co.,  125  Minn.  224,  146  N. 


W.  353  (switchyard);  Stehr  v.  Ma- 
son City  &c.  Ry.  Co.,  77  Nebr.  641, 
110  N.  W.  701:  Lalir  v.  Metropoli- 
tan Elevated  R.  Co.,  104  N.  Y.  268, 
10  N.  E.  528;  Story  v.  New  York 
&c.  R.  Co.,  90  N.  Y.  122,  43  Am. 
Rep.  146;  Smith  v.  St.  Paul  &c.  R. 
Co.,  39  Wash.  355,  81  Pac.  840.  70 
L.  R.  A.  1018.  Many  cases  in  New 
York  growing  out  of  the  construc- 
tion and  operation  of  elevated  rail- 
roads are  substantially  to  the  same 
effect  even  in  the  absence  of  such 
a  provision.  Contra  Pennsylvania 
R.  Co.  V.  Lippincott,  116  Pa.  St. 
472,  9  Atl.  871.  2  Am.  St.  618; 
Pennsylvania  R.  Co.  v.  Marchant, 
119  Pa.  St.  541.  13  Atl.  690.  4  Am. 
St.  659,  affirmed  in  Marchant  v. 
Pennsylvania  R.  Co..  153  U.  S.  380, 
14  Sup.  Ct.  894,  38  L.  ed.  751; 
Jones  V.  Erie  &c.  R.  Co..  151  Pa. 
St.  30,  25  Atl.  134,  17  L.  R.  A.  758, 
31  Am.  St.  722.  But  compare  Penn- 
sylvania &c.  R.  Co.  V.  Walsh,  124 
Pa.  St.  544,  17  Atl.  186,  10  Am.  St. 
611.  See  generally  Austin  v.  Au- 
gusta Terminal  R.  Co.,  108  Ga.  671, 
34  S.  E.  8.S2,  47  L.  R.  A.  755;  Aid- 
rich  V.  Metropolitan  &c.  Co.,  195 
III.  456.  63  N.  E.  155,  57  L.  R.  A. 
237;  Dimmick  v.  Council  Bluffs  &c. 
R.  Co.,  62  Iowa  409.  17  N.  W.  395; 
T'rosbrey  v.  Old  Colony'  &c.  R.  Co., 
103  Mass.  6;  Bennett  v.  Long  Island 


797 


AI'FROPKLVTION    UNDER    THE   EMINENT    DOMAIN  §  1230 


jurisdictions/  Additional  illustrations  will  be  given  when  we 
come  to  consider  the  subject  of  railroads  in  streets,  and  it  is 
sufficient  at  this  place  to  refer  to  other  authorities  sui)porting 
and  showing-  the  ai)plication  of  the  general  rule  without  review- 
ing them  at  length.^ 


R.  Co.,  181  N.  Y.  431,  74  N.  E.  418; 
Smith  V.  St.  Paul  &c.  R.  Co.,  39 
Wash.  355.  cSl   Pac.  840. 

7  Pennsylvania  R.  Co.  v.  T.ippin- 
cott,  116  Pa.  St.  472,  9  Atl.  871,  2 
Am.  St.  618;  Willock  v.  Beaver 
Val.  R.  Co.,  222  Pa.  St.  590,  72  Atl. 
237;  Wunderlich  v.  Penna.  R.  Co., 
223  Pa.  St.  114,  72  Atl.  247;  Hyde 
v.  Minnesota  &c.  R.  Co.,  29  S.  Dak. 
220,  136  N.  W.  92,  40  L.  R.  A.  (N. 
S.)  48.  See  also  Fink  v.  Cleveland 
&c.  R.  Co.,  181  Ind.  539,  105  N.  E. 
116;  Twenty-second  Corp.  v.  Ore- 
gon &c.  Ry.  Co.,  Z6  Utah  238,  103 
Pac.  243,  23  L.  R.  A.  (N.  S.)  860, 
140  Am.  St.  819. 

8  Chicago  V.  Taylor,  125  U.  S. 
161,  8  Sup.  Ct.  820,  31  L.  ed.  638; 
Richards  v.  Washington  Terminal 
Co.,  233  U.  S.  546.  34  Sup.  Ct.  654. 
58  L.  cd.  1088;  Omaha  &c.  R.  Co. 
V.  Cable  &c.  Co.,  32  Fed.  727; 
Montgomery  v.  Townsend,  80  Ala. 
489,  492,  2  So.  155.  60  Am.  Rep. 
112;  Hot  Springs  R.  Co.  v.  Wil- 
liamson, 45  Ark.  429;  Each  us  v. 
Los  Angeles  &c.  R.  Co.,  103  Cal. 
614,  Z7  Pac.  750,  42  Am.  St.  149; 
Denver  v.  Bayer.  7  Colo.  113.  2 
Pac.  6;  Albany  v.  Sikes,  94  "Ga.  30. 
20  S.  E.  257,  26  L.  R.  A.  653,  47 


Am.  St.  132;  Chicago  &c.  R.  Co. 
V.  Ayres,  106  III.  511;  East  'St. 
Louis  &c.  R.  Co.  V.  Eisentraut,  134 
111.  96,  24  N.  E.  760;  Sheehy  v. 
Kansas  City  &c.  R.  Co.,  94  i\Io. 
574,  7  S.  W.  579,  4  Am.  St.  396  and 
note;  Gulf  &c.  R.  Co.  v.  Eddins, 
60  Tex.  656;  Hatch  v.  Tacoma  &c. 
R.  Co.,  6  W'ash.  1.  Z2  Pac.  1063; 
Johnson  v.  Parkersburg,  16  W.  Va. 
402,  2,7  Am.  Rep.  779;  Caledonian 
R.  Co.  v.  Waker,  L.  R.  7  App.  Cas. 
259.  In  Kansas  City  &c.  R.  Co.  v. 
St.  Joseph  &c.  R.  Co.,  97  Mo.  457, 
10  S.  W.  826,  3  L.  R.  A.  240,  it  was 
held  that  a  railroad  company  was 
not  entitled  to  damages  under  such 
a  provision  for  delay  and  inconve- 
nience caused  by  another  company 
crossing  its  tracks  in  a  public 
street.  And  so  it  is  held  that  dan- 
ger to  persons  crossing  or  from 
fire  is  not  a  proper  element  to  be 
considered  as  damages.  Illinois 
&c.  R.  Co.  V.  Freeman,  210  111.  270, 
71  X.  E.  444.  See  generally  upon 
the  subject  treated  in  this  section, 
notes  in  1  L.  R.  A.  (N.  S.^  49.  17 
L.  R.  A.  (N.  S.)  1053,  Z6  L.  R.  A. 
(N.  S.)  741,  38  L.  R.  A.  (N.  S.) 
497. 


CHAPTER  XXXIX. 


COMPENSATION  AND  DAMAGES 


Sec.  Sec. 

1240.  Compensation    —     Constitu-       1256. 

tional  right. 

1241.  Provisions     of     the      federal 

constitution — I'^dcral  pow- 
ers. 1257. 

1242.  Federal    power — Abridgment 

of  right  of  navigation.  1258. 

1243.  Constitutional  right  to  com- 

pensation does  not  extend 

to  general  damages.  1259. 

1244.  Compensation  must  be  made       1260. 

in    money  —  Principle    not 
violated  by  deducting  spe-       1261. 
cial  benefits. 

1245.  The    measure    of    compcnsa-       1262. 

tion   is  a  judicial   question. 

1246.  Right    to    compensation    not 

lost  by  conditional  grant.  1263. 

1247.  Time  at  which  compensation 

is  computed. 

1248.  Time    of    payment    of    com- 

pensation. 

1249.  P)cnefits — General    survc}-   of       1264. 

the  subject. 

1250.  P>enefits — Different     lines     of 

decision. 

1251.  P)enefits  —  General    and    spe-       1265. 

cial. 

1252.  P>enefits    confined    to    parcel 

or  tract   actually  taken. 

1253.  I'enefits    from    abandonment       1266. 

of   an    e.xisting   line   across 
premises. 

1254.  Remote  or  conjectural  dam-       1267. 

ages  can  not  be  allowed.  1268. 

1255.  Remote,  sentimental  or  con- 

jectural    damages     contin- 
ued. 

798 


Remote  and  speculative  dam- 
ages— Possibility  of  negli- 
gence in  construction  or 
operation  of  road. 

Damages  confined  to  partic- 
ular tract. 

Injuries  to  part  of  tract  or 
I)arcel  of  land  not  actu- 
ally taken. 

Elements  of  value. 

Compensation  for  additional 
burden  on  right  of  way. 

Measure  of  damages — Illus- 
trative cases. 

Matters  to  be  considered  in 
estimating  damages  —  Il- 
lustrative instances. 

Measure  of  damages  for 
property  of  railroad  com- 
pany taken  for  other  pub- 
lic use  — •  Railroad  and 
street   railroad    crossings. 

Measure  of  damages  for 
property  of  railroad  com- 
pany' taken  for  other  pub- 
lic use — Telegraph  lines. 

Measure  of  damages  for 
property  of  railroad  com- 
pany taken  for  public  use 
• — Streets   and    highwaj'-s. 

Railroads  and  street  rail- 
roads in  streets  —  Com- 
pensation  to   abutters. 

Elevated   railroads. 

Damages  where  land  taken 
is  abandoned  before  con- 
clusion of  condemnation 
proceedings. 


7f)9 


COMPENSATION'    AND    DAMAGES 


§  1240 


Sec. 
1269. 


1270. 

1271. 

1272. 


1273. 
1274. 


Improvements  made  by  com- 
pany under  unauthorized 
entry — Views  of  the  au- 
thors. 

Improvements  made  by  com- 
pany under  unauthorized 
entry — Illustrative  cases. 

Deviation  from  proposed 
line — Change  of  route. 

Owner,  at  time  possession  is 
taken  is  entitled  to  dam- 
ages— Vendor  and   vendee. 

Who   is   owner. 

Who  is  entitled  to  the  com- 
pensation where  the  land 
is  conveyed  after  appro- 
priation proceedings  are 
commenced  —  Vendor  and 
vendee. 


Sec. 

1275.  Temporary   use   of   premises. 

1276.  Notice    to    purchaser   by   ex- 

istence  of  railroad. 

1277.  To       whom       compensation 

should   be    paid. 

1278.  Measure  of  damages  to  les- 

see. 

1279.  Apportionment    of    compen- 

sation. 

1280.  Occupying  claimants  on  pub- 

lic lands. 

1281.  Effect  of  assessment  of  dam- 

ages. 

1282.  Award  of  compensation  does 

not  cover  negligent  acts. 

1283.  Interest — Allowance    of. 

1284.  Presumption    of  payment   of 

compensation  —  Statute   of 
limitations. 

1285.  Waiver — Estoppel. 


§  1240  (979).  Compensation  —  Constitutional  right.  —  The 
right  of  a  citizen  whose  property  is  taken  for  a  pubHc  use  to 
compensation  is,  as  we  believe,  fundamental.  In  our  judgment 
there  is  a  right  to  compensation  in  all  cases  where  private  prop- 
erty is  seized  under  the  power  of  eminent  domain.  We  believe 
that  the  right  exists  even  where  there  is  no  express  constitutional 
provision  forbidding  the  taking  of  private  property  without  pay- 
ing or  tendering  compensation.  The  right  to  compensation  is 
part  of  the  right  of  every  freeman  to  hold,  own  and  enjoy  prop- 
erty, and  he  can  only  be  deprived  of  his  property  even  for  a  public 
use  by  due  process  of  law  and  upon  the  payment  of  just  compen- 
sation for  w  hatever  property  may  be  taken  from  him,^ 


1  In  Sinnickson  v.  Johnson,  17  N. 
J.  L.  129,  145,  34  Am.  Dec.  184.  it 
was  said,  of  the  right  of  eminent 
domain  that:  "This  power  to  take 
private  property  reaches  back  of 
all  constitutional  provisions,  and  it 
seems  to  be  considered  a  settled 
principle  of  universal  law  that  the 


right  to  compensation  is  an  inci- 
dent to  the  exercise  of  that  power, 
that  the  one  is  so  inseparably  con- 
nected with  the  other  that  they 
may  be  said  to  exist  not  as  sepa- 
rate and  distinct  principles,  but 
as  parts  of  one  and  the  same  prin- 
ciple."   This  statement  of  the   law 


^124:1 


RAILROADS 


800 


§  1241  (980).  Provisions  of  the  federal  constitution — Federal 
powers. — i'riur  to  the  adoption  ol  the  fourteenth  amendment  it 
Avas  held   that  the  provisions  of  the  federal   constitution  apply 


was  approved  in  I'limpelly  v.  Green 
Bay  Co.,  13  Wall.  (U.  S.)  166,  178, 
20  L.  ed.  557,  and  in  Monongahela 
Nav.   Co.  V.  United  States,   148  U. 
S.  312,   13   Sup.   Ct.  622,  37   L.  ed. 
463,  and  in   Chicago  &c.   R.  Co.  v. 
Chicago,  166  U.  S.  226,  17  Sup.  Ct. 
581.  585,  41    L.  cd.  979.     The  gen- 
eral doctrine  is  asserted  in  Chatta- 
nooga &c.  R.  Co.  V.  Felton,  69  Fed. 
273,    278.      See    also     Gardner    v. 
Newburg,  2  Johns.  Ch.  (N.  Y.)  162; 
Bonaparte  v.   Camden   &c.   R.   Co., 
Bald.    (U.   S.    C.    C.)    205;    Martin, 
ex  parte,  13  Ark.  198,  58  Am.  Dec. 
321;  Harness  v.  Chesapeake  &c.,  1 
Md.  Ch.  248;  Bristol  v.  New  Ches- 
ter, 3  N.  H.  524;  Garvey  v.  Long 
Island  R.  Co.,  159  N.  Y.  323,  54  N. 
E.    57,    70   Am.    St.    550    and    note; 
Johnston  v.  Rankin,  70  N.  Car.  550; 
Staton   V.    Norfolk    R.    Co.,   Ill    N. 
Car.  278,  17  L.  R.  A.  838  and  note; 
Southern    Kansas    R.    Co.  v.   Okla- 
homa   City,    12    Okla.    82,    69    Pac. 
1050;  Watson  v.  Fair  mount  &c.  R. 
Co.,  49  W.  Va.  528,  39  S.  E.   193; 
Elliott  Roads  and  Streets  (3rd  ed.), 
§  261,  et.  seq.    But  see  Boom  Co.  v. 
Patterson,  98  U.  S.  403,  25   L.  ed. 
206;    United    States    v.    Jones,    109 
U.  S.  513.  3  Sup.  Ct.  346,  27  L.  ed. 
1015;  Lindsay  v.  Commonwealth,  2 
Bay  (S.  Car.),  38;  State  v.  Dawson, 
3  Hill  (S.  Car.),  100;  United  States 
V.   Rauers,  70  Fed.   748.     A   Maine 
statute  relating  to  the  location   of 
street  railroads  in  the  streets  and 
ways   of   cities   and   towns,   and   of 
the  approval  thereof  by  municipal 


officers,   and  appeals    from  the  ac- 
tion   of    such    officers    is    held    not 
unconstitutional    as   permitting   the 
property  of  the  towns  to  be  taken 
for    street   railroad   purposes   with- 
out   compensation,    as    the    public 
act   through   the   legislature,   which 
may   regulate    and    control,    extend 
or   diminish   the   public    uses    as    it 
sees    fit.      Appeal    of    Milbridge    & 
C.    Electric    R.   Co.,  96   Maine    110, 
51   Atl.  818.     A  land-owner   is   en- 
titled to  compensation  for  injuries 
to  his  premises  caused  by  the  erec- 
tion of  a  dam  on  adjoining  prem- 
ises by  a  railroad  company  though 
it   has  a   lawful  right  to   erect  the 
structure.     Illinois   Central   R.   Co. 
V.  Lockard,  112  111.  App.  423.    See 
also  Southern  Tract.  Co.  v.   Fears 
(Tex.   Civ.  App.),   199  S.  W.  856. 
The   provision   of   the   constitution 
of  Texas  that  no  person's  property 
shall  be  taken  for  public  use  with- 
out adequate  compensation,  unless 
by  the  consent  of  the  owner  is  held 
to    apply   only   to   the   property   of 
others    than    the    state.      Over   the 
state  lands  there  is  no  such  restric- 
tion.   Texas  Central  R.  Co.  v.  Bow- 
man,  97  Tex.   417,   79   S.   W.  295. 
Just   compensation    means   the   full 
ctiuivalent  of  the  property  taken  or 
the    actual    loss    to    the    owner   by 
reason   of  the   taking  of  his   prop- 
erty,   Kanakanni   v.   United   States, 
244  Fed.  923;   Erie   County  v.   Fri- 
denberg,  221   N.   Y.  389,  117  N.   E. 
611. 


801 


compp:nsation  and  damaoes 


§  1241 


only  to  acts  of  tin-  i^cneral  jL^o\crniiU'nt.'-  And  it  has  been  so 
held  since  the  adoption  of  the  fourteenth  amendment.'  It  seems 
to  us  that  there  is  reason  for  concluding  that  under  that  amend- 
ment there  is  not  due  process  of  law  when  property  is  taken  with- 
out compensation  where  the  constitution  of  the  state  requires 
that  compensation  shall  be  paid  or  tendered.*  We  suppose  that 
if  a  state  statute  should  assume  to  permit  some  corporations  to 
take  without  compensation  and  require  others,  under  like  cir- 
cumstances, to  pay  or  tender  compensation,  the  statute  would  be 
void  under  the  fourteenth  amendment,  for  the  reason  that  it 
denied  the  equal  protection  of  the  laws.  The  supreme  court  of 
the  United  States,  in  a  comparatively  recent  case,  carefully  con- 
sidered the  question  of  the  power  of  the  general  government  in 
the  exercise  of  the  right  of  eminent  domain,  and  laid  down  the 
general  rules  which  govern  the  exercise  of  the  right."'     Congress 


-  Barron  v.  Baltimore,  7  Pet.  (U. 
S.)  243,  8  L.  ed.  672. 

3  Smith  V.  Bivens,  56  Fed.  352. 
See  also  Winous  Point  Shooting 
Club  V.  Caspersen,  193  U.  S.  189, 
24  Sup.  Ct.  431,  48  L.  ed.  675; 
Bemis  v.  Guirl  Drainage  Co.,  182 
Ind.  36,  105  N.  E.  496  (Fifth 
Amendment). 

4  Scott  V.  Toledo,  36  Fed.  385. 
1  L.  R.  A.  688.  See  Murdock  v. 
Cincinnati,  44  Fed.  726,  729.  We 
are  inclined  to  believe  that  on  prin- 
ciple it  must  be  held  that  in  all 
cases  where  there  is  no  provision 
for  compensation  there  is  not  due 
process  of  law.  Davidson  v.  New 
Orleans,  96  U.  S.  97,  24  L.  ed.  616. 
opinion  of  Bradley,  J.  See  also 
Chicago  &c.  R.  Co.  v.  Chicago, 
166  U.  S.  226,  17  Sup.  Ct.  581.  41 
L.  ed.  979;  Missouri  Pac.  R.  Co.  v. 
Nebraska,  164  U.  S.  403,  17  Sup. 
Ct.  130,  135,  41  T..  ed.  489;  .Madison- 
ville  Traction  Co.  v.  St.  Bernard 
Min.  Co.,  196  U.  S.  239,  25  Sup.  Ct. 


251.  256,  49  L.  ed.  462.  These  de- 
cisions seem  to  settle  the  question 
in  accordance  with  the  doctrine  of 
the  text. 

5  Shoemaker  v. .  United  States, 
147  U.  S.  282,  13  Sup.  Ct.  361.  37 
L.  ed.  170.  See  Canal  Co.  v.  Key, 
3  Cranch  (C.  C.)  599;  Chesapeake 
&c.  Co.  V.  Union  Bank,  4  Cranch 
(C.  C.)  75:  Luxton  v.  North  River 
Bridge  Co.,  147  U.  S.  337,  13  Sup. 
Ct.  356.  37  L.  ed.  194.  As  to  the 
measure  of  damages,  see  Kerr  v. 
South  Park  Commissioners,  117 
U.  S.  379,  29  L.  ed.  924;  Shoemaker 
V.  United  States,  supra.  See  gen- 
erally Rugheimer,  In  re,  36  Fed. 
369:  United  States  v.  Great  Falls 
Mfg.  Co.,  112  U.  S.  645,  5  Sup.  Ct. 
306.  28  L.  ed.  846;  United  States 
V.  Gettysburg  Elec.  R.  Co.,  160  U. 
S.  668.  16  Sup.  Ct.  427,  40  L.  ed. 
576:  Chappell  v.  United  States,  160 
U.  S.  499,  16  Sup.  Ct.  397,  40  L.  ed. 
510. 


§1241 


RAILROADS 


802 


may  grant  authority  to  a  railroad  company  to  condemn  lands 
through  one  of  the  territories.^  It  is  held  that  an  act  which  pro- 
vides that  a  property  owner  may  apply  to  the  court  of  claims  for 
indemnity  affords  a  remedy  to  him  for  the  recovery  of  damages, 
but  the  court  declined  to  pass  upon  the  constitutionality  of  the 
act.'  The  provision  of  the  federal  constitution  that  private  prop- 
erty shall  not  he  taken  "for  pul)lic  use  without  just  compensa- 
tion," does  not  require  that  compensation  shall  be  actually  paid 
in  advance  of  the  occupancy  of  the  land  to  be  taken,  but  the 
owner  is  entitled  to  reasonable,  certain  and  adequate  i)rovision 
for  obtaining  comi)ensation  before  his  occupancy  is  disturbed.^ 
It  was  also  held  in  the  case  referred  to  that  an  offer  to  pay  was 
not  sufficient,  but  the  money  must  be  actually  paid  into  court. 
It  has  been  held  that  an  act  of  Congress,  which  provides  that  no 
compensation  shall  be  paid  for  property  seized,  will  not  authorize 
the  seizure  of  private  property  for  a  public  use.''  Congress  may 
])rovidc  what  proceedings  shall  be  taken  in  case  of  condemnation 


•'  Cherokee  Nation  v.  Southern 
Kansas  R.  Co.,  135  U.  S.  641,  10 
Sup.  Ct.  965,  34  T..  ed.  295.  See 
also  as  to  right  of  United  States 
to  condemn  property  already  de- 
voted to  a  public  use.  United 
States  v.  Boston  Kiev.  R.  Co.,  176 
Fed.  963. 

'  Great  Falls  Mfg.  Co.  v.  Attor- 
ney-General Garland,  124  U.  S. 
581,  8  Sup.  Ct.  631,  31  F.  ed.  527: 
Great  Falls  Manufacturing  Co.  v. 
Garland,  25  Fed.  521.  In  the  opin- 
ion in  the  first  case  cited  it  was 
said  of  the  act  of  the  party  in  sub- 
mitting his  claim  to  the  court  of 
claims  that:  "The  plaintiff,  by 
adiipting  that  mode,  has  .-issentcd 
to  the  taking  of  his  property  by 
the  government  for  public  use,  and 
has  agreed  to  submit  the  determi- 
nation of  the  (|uestion  of  compen- 
sation to  the  tribunal  named  by 
congress." 

s  Cherokee    Nation     v.    Southern 


Kansas  R.  Co.,  135  U.  S.  641,  10 
Sup.  Ct.  965,  34  L.  ed.  295.  In  the 
case  cited  the  court  quoted  from 
the  case  of  Kennedy  v.  Indianapo- 
lis, 103  U'.  S.  599,  604,  26  L.  ed.  550, 
the  following:  "On  principle  and 
authority,  the  rule  is,  under  such  a 
constitution  as  that  of  Indiana, 
that  the  right  to  enter  and  use  the 
])r()perty  is  complete  as  soon  as 
the  property  is  actually  appropri- 
ated under  the  authority  of  the 
law  for  a  public  use,  but  that  the 
title  does  not  pass  from  the  owner 
without  his  consent,  until  just  com- 
pensation has  been  made  to  him," 
and  held  that  the  rule  applied  to 
the  provisions  of  the  federal  con- 
stitution. See  Chattanooga  ^c.  R. 
Co.  V.  Felton,  69  Fed.  273;  Payne 
V.  Kansas  City  &c.  R.  Co.,  46  Fed. 
546. 

"  Manderson.  In  re,  51   Fed.  501: 
Montgomery,  In  re,  48  Fed.  896. 


803 


COMPENSATION    AND    DAMAGES 


§1241 


by  the  I'nitcd  States,  or.  it  may  provide  that  the  proceedings 
shall  be  such  as  the  state  statute  prescribes.^"  Where  there  is 
no  statute  prescribing  the  rule  for  measuring  the  compensation 
to  be  awarded,  it  must  be  determined  upon  the  principle  of  the 
common  law.  and  consequential  damages  can  not  be  awarded.^^ 
It  is  held  that  private  and  not  public  property,  is  protected  by 
the  provisions  of  the  federal  constitution,^-  but  we  suppose  that 
the  term  "])ul)Hc  property,"  as  used  in  this  connection,  must  be 
held  to  mean  such  as  belongs  to  the  state  or  nation,  and  not 
property  of  a  public  nature,  that  is,  property  public  in  the  sense 
that  it  is  "aiTected  with  a  ])ublic  interest."  It  is  dt)ubtful  whether 
the  doctrine  of  the  case  referred  to  can  be  regarded  as  going  to 
the  extent  of  denying  that  such  a  provision  as  that  contained  in 
the  national  constitution  protects  property  held  by  a  state  or  one 
of  its  municipalities  for  a  use  in  its  nature  private,  as,  for  in- 
stance, for  a  school  house,  a  hospital  for  the  insane  or  the  like.^^ 


10  High  Bridge  &c.  Co.  v.  United 
States,  69  Fed.  320;  Kohl  v.  United 
States,  91  U.  S.  367,  23  L.  ed.  449; 
United  Stat(;s  v.  Jones.  109  U.  S. 
513,  3  Sup.  Ct.  346,  27  T..  ed.  1015. 
See  also  Kanakanni  v.  United 
States,  244   Fed.  923. 

11  High  Bridge  &c.  Co.  v.  United 
States,  69  Fed.  320,  citing,  as  to 
the  common  law  rule.  Transporta- 
tion Co.  V.  Chicago.  99  U.  S.  635. 
25  L.  ed.  336  (wherein  Pumpelly 
V.  Green  Bay  Co..  13  Wall.  (U.  S.) 
166,  20  L.  ed.  557,  is  criticised),  and 
Railroad  Co.  v.  Bingham.  87  Tenn. 
522,  11  S.  W.  705.  4  L.  R.  A.  622 
and  note;  Smith  v.  Washington, 
20  How.  (U.  S.)  135.  15  L.  ed.  858. 
It  was  also  said  that  the  decisions 
in  Van  Schoick  v.  Delaware  &c. 
Canal  Co..  20  N.  J.  L.  249.  and 
Asher  v.  Louisville  &c.  R.  Co..  87 
Ky.  391.  8  S.  W.  854,  were  based 
upon  statutes.  See  also  New  York 
&c.    R.    Co.   v.    Blacker,    178   ^lass. 


386.  59  N.  E.  1020.  As  to  the  ef- 
fect of  an  aw^ard  where  consequen- 
tial damages  are  provided  for  by 
statute,  the  court  cited,  Ohio  &c. 
R.  Co.  V.  Thillman,  143  111.  127,  32 
N.  E.  529,  36  Am.  St.  359.  See  also 
upon  question  of  adopting  state 
statutes.  United  States  v.  Enge- 
man,  46  Fed.  898. 

12  Stockton  V.  Baltimore  &c.  R 
Co.,  32  Fed.  9;  Frost  v.  Washing- 
ton Co.  R.  Co.,  96  Maine  76,  51 
Atl.  806.  59  L.  R.  A.  68  and  note. 

1"  In  the  case  under  immediate 
mention,  Stockton  v.  Baltimore 
&c.  R.  Co.,  32  Fed.  9,  the  court, 
after  showing  that  the  lands  which 
were  the  subject  of  controversy, 
were  "publici  juris,  that  is.  were 
held  for  the  people  at  large,"  said: 
"Such  being  the  character  of  the 
state's  ownership  of  the  land  un- 
der water — an  ownership  held,  not 
for  the  purpose  of  emolument,  but 
for  public   use,   especially  the   pub- 


§  1241 


KAILUOADS 


804 


Ii  it  does  we  should  be  inclined  to  doubt  its  soundness.  The 
tendency  of  the  courts  is  to  give  the  word  "property,"  as  used  in 
the  constitution  in  this  connection,  a  liberal  construction  and  the 
word  is  generally  held  to  cover  every  valuable  interest  which  can 
be  enjoyed  as  property  and  recognized  as  such.^*  Thus  con- 
strued it  includes  not  only  real  estate  held  in  fee,  but  also  an  ease- 
ment, personal  pr()])crt}'  and  the  like,  and  where  it  is  proposed  to 
appropriate  any  property  of  this  character,  the  (nvner  is  entitled 
to  Just  compensation.^' 


lie  use  of  navigation  and  com- 
merce— the  question  arises  whether 
it  is  a  kind  of  property  susceptible 
of  pecuniary  compensation,  within 
the  meaning  of  the  constitution. 
Tlie  fifth  amendment  provides  only 
that  private  property  shall  not  be 
taken  without  compensation,  mak- 
ing no  reference  to  public  prop- 
erty. But,  if  the  phrase  may  have 
an  application  broad  enough  to  in- 
clude all  property  and  ownership, 
the  question  would  still  arise 
whether  the  appropriation  of  a  few 
square  feet  of  the  river  bottom  to 
the  foundation  of  a  bridge,  whicli 
is  to  be  used  for  the  transportation 
of  an  extensive  commerce  in  aid 
and  relief  of  that  afforded  by  the 
water  way,  is  at  all  a  diversion  of 
the  property  from  its  original  pub- 
lic use.  It  is  not  so  considered 
when  sea-walls,  piers,  wing-dams 
and  other  structures  are  erected 
for  the  purpose  of  aiding  com- 
merce by  improving  and  preserv- 
ing the  navigation.  Why  should 
it  be  deemed  such  when  (without 
injury  to  the  navigation)  erections 
are  made  for  the  purpose  of  aiding 
and  enlarging  commerce  beyond 
the  capacitj'  of  the  navigable 
stream  itself,  and  of  all  tlic  nav- 
igable   waters    of    the    country?     It 


is  commerce,  and  not  navigation, 
which  is  the  great  object  of  con- 
stitutional care."  See  St.  Louis 
&c.  R.  Co.  V.  Blind  Inst.,  43  111. 
303;  Atlanta  v.  Central  R.  Co.,  53 
Ga.  120;  Burbank  v.  Fay,  65  N.  Y. 
57;  Clinton  v.  Cedar  Rapids  &c.  R. 
Co.,  24  Iowa  455;  Mount  Hope 
Cemetery  v.  Boston,  158  Mass.  509, 
33  N.  E.  695,  35  Am.  St.  515:  State 
V.  District  Court,  77  Minn.  248,  79 
N.  W.  971;  Pennsylvania  R.  Co. 
v.  New  York  &c.  R.  Co.,  23  N.  J. 
Eq.  157:  People  v.  Kerr,  27  N.  Y. 
188:  Portland  &c.  R.  Co.  v.  Port- 
land. 14  Ore.  188.  12  Pac.  265,  58 
Am.  Rep.  299. 

i-t  Old  Colony  R.  Co.  v.  Plymouth 
Co.,  14  Gray  (Mass.)   161. 

'^^  Southern  Kansas  R.  Co.  v. 
Oklalioma  City,  12  Okla.  82.  69 
Pac.  1050.  See  also  Lake  Auburn 
Crystal  Ice  Co.  v.  Lewiston,  109 
Maine  489,  84  Atl.  1004.  But  see 
St.  Louis  &c.  R.  Co.  V.  Knapp  &c. 
Co..  160  Mo.  396,  61  S.  W.  300, 
where  it  is  held  that  the  words 
"other  property,"  in  Rev.  St.  Mo. 
§  2734,  providing  that  in  case  lands 
or  "other  property"  is  sought  to 
be  appropriated  by  any  railroad 
corporation  for  public  use,  and  the 
owners  and  such  corporation  can 
not  agree  as  to  compensation,  the 


805 


COMPENTPATION    AND    DAMAGE6 


§12il 


§  1242  (980a).  Federal  power — Abridgment  of  right  of  navi- 
gation.— The  right  of  navigation  in  navigable  waters  is  not  an 
individual  property  right  protected  from  al)ridgment  or  abolition 
by  the  constitutional  provision  against  the  taking  of  private 
property  without  just  compensation.  It  is  a  public  and  not  a 
private  right,  and  hence  the  obstruction  of  such  navigation  by 
the  government  does  not  give  the  users  of  the  water  the  right  to 
demand  compensation.^"  Thus  it  has  been  held  that  the  fact  that 
the  building  and  maintenance  of  a  trestle  and  the  consequent 
closing  of  a  tidal  channel,  l)y  a  railroad  company  under  the 
authority  of  the  legislature  and  of  congress,  has  seriously  dam- 
aged the  business  of  the  plaintiff  and  the  selling  value  of  his 
property  adjoining  the  channel,  does  not  entitle  him  to  compensa- 
tion from  the  railroad  company,  none  of  his  property  having 
been  entered  upon  or  used  by  the  company.  It  is  the  common 
case  of  damnum  absque  injuria.  The  company  has  not  wronged 
the  plaintiff.^"     But  where  the  United  States  erected  dams  in  a 


corporation  may  apply  to  the  cir- 
cuit court,  etc.,  have  no  reference 
to  the  words  "or  damaged,"  in 
Const.  AIo.  art.  2  §  21,  declaring 
that  private  property-  shall  not  be 
taken  "or  damaged"  for  public  use 
without  just  compensation.  The 
latter  expression  refers  to  real  es- 
tate damaged  by  appropriation  or 
the  manipulation  of  property  ap- 
propriated; and  damages  to  per- 
sonal property  or  business  inter- 
ests need  not  be  compensated  for 
in  condemnation  proceedings. 

1^  Oilman  v.  Philadelphia,  3  Wall. 
(U.  S.)  713,  18  L.  ed.  96:  Pound  v. 
Turck,  95  U.  S.  459,  24  L.  ed.  525: 
Escanaba  &c.  Transp'.  Co.  v.  Chi- 
cago, 107  U.  S.  678,  2  Sup.  Ct.  185. 
27  L.  ed.  442;  Aliller  v.  New  York, 
109  U.  S.  385,  3  Sup.  Ct.  228,  27 
L.  ed.  971;  Cardwcll  v.  Bridge  Co., 
113  U.  S.  205,  5  Sup.  Ct.  423,  28 
L.    ed.    959;    Hamilton    v.    Railroad 


Co.,  119  U.  S.  280,  7  Sup.  Ct.  206, 
30  L.  ed.  393;  Scranton  v.  Wheeler, 
179  U.  S.  141,  21  Sup.  Ct.  48,  45 
L.  ed.  126;  Rogers  v.  Kennebec  &c. 
R.  Co.,  35  Maine  319;  Gowen  v. 
Penobscot  R.  Co.,  44  Maine  140; 
Brooks  v.  Improvement  Co..  82 
Maine  17,  19  Atl.  87,  7  L.  R.  A. 
460,  17  Am.  St.  459;  Frost  v.  Wash- 
ington County  R.  Co..  96  Maine 
Ifi,  51  Atl.  806.  59  L.  R.  A.  68  and 
note,  citing  Spring  v.  Russell.  7 
Maine  273. 

I''  Frost  v.  Washington  Co.  R. 
Co.,  96  Maine  16,  51  Atl.  806,  59 
L.  R.  A.  68  and  note.  See  also  as 
to  wharfage  and  accretions  in  the 
case  of  navigable  waters.  Hedges 
v.  West  Shore  R.  Co.,  150  N.  Y. 
150,  44  N.  E.  691,  55  Am.  St.  660: 
Chicago  &c.  R.  Co.  v.  Porter.  72 
Iowa  426,  34  N.  W^  286;  Shively  v. 
Bowlby.  152  U.  S.  1.  14  Sup.  Ct. 
548,   38    T..    ed.   331;    Western    Pac. 


:?  1243 


RAILROADS 


806 


river  for  the  ini])r()\  eiiient  of  navis^ation.  and  in  so  doing'  turned 
a  valuable  rice  plantation  into  an  irreclaimable  and  valueless  bog, 
it  was  held  that  it  was  a  taking  of  property  for  which  compensa- 
tion must  be  made.^* 

§  1243  (981).  Constitutional  right  to  compensation  does  not 
extend  to  general  damages, — Where  a  property  owner  sustains 
no  special  injury  but  does  sustain  an  injury  in  common  with  the 
public  he  can  not,  it  is  held,  successfully  invoke  the  protection  of 
the  constitutional  provision  giving  compensation  for  private 
property  taken  for  a  public  use.  Injuries  common  in  the  com- 
munity which  result  from  the  construction  of  a  railroad,  the  con- 
struction of  which  is  authorized  by  law,  are  general  injuries  and 
not  special  to  the  property  owner,  and  the  rule  is  that  for  such 
general  injuries  compensation  can  not  be  recovered  in  the  ab- 
sence of  a  statute  authorizing  their  recovery. ^°  There  is  difficulty 
in  giving  practical  application  to  the  rule,  and  it  seems  to  us  that 
some  of  the  cases  carry  it  entirely  too  far.  The  general  rule  un- 
questionably is  that  there  is  a  right  in  a  street,  distinct  from  that 


Ry.  Co.  V.  Southern  Pac.  Co.,  151 
Fed.  Z76.  And  see  as  to  removal 
or  alteration  of  bridges  over  navi- 
gable streams,  United  States  v. 
Union  Bridge  Co.,  143  Fed.  7,77; 
United  States  v.  Parkersburg 
Branch  R.  Co..  143  Fed.  224. 

IS  United  States  v.  Lynah.  188  U. 
S.  445,  23  Sup.  Ct.  349,  47  L.  ed. 
539.  But  compare  cases  cited  in 
last  preceding  note,  and  also  Gib- 
son V.  United  States,  166  U.  S.  269, 
17  Sup.  Ct.  578,  41   L.  ed.  996. 

19  Metropolitan  West  Side  El.  R. 
Co.  V.  Goll,  100  111.  App.  323;  Rig- 
ney  v.  Chicago,  102  111.  64;  Chicago 
V.  Union  &c.  ,'\ssociation,  102  111. 
379,  40  Am.  Rep.  598;  Illinois  Cent. 
R.  Co.  v.  Trustees,  212  111.  406,  72 
N.  E.  39;  Dantzer  v.  Indianapolis 
Union  R.  Co.,  141  Ind.  604,  39  N.  E. 
223,  34  L.  R.  A.  769,  50  Am.  St.  343; 


Grand  Rapids  &c.  R.  Co.  v.  Heisel, 
38  Mich.  62,  31  Am.  Rep.  306;  Buhl 
V.  Fort  St.  &c.  Depot  Co.,  98  Mich. 
596.  608.  57  N.  W.  829,  23  L.  R.  A. 
392;  Rnckert  v.  Grand  Ave.  R.  Co., 
163  ^lo.  260,  63  S.  W.  814;  Nagel 
V.  Lindell  Rj-.  Co.,  167  Mo.  89,  66 
S.  W.  1090;  Stockdale  v.  Rio 
Grande  Western  Ry.  Co.,  28  Utah 
201,  77  Pac.  849;  Oregon  Short 
Line  R.  Co.  v.  Fox,  28  Utah  311, 
78  Pac.  800;  Smith  v.  St.  Paul  &c. 
R.  Co..  39  Wash.  355,  81  Pac.  840. 
See  also  Coatsworth  v.  Lehigh 
Valley  R.  Co.,  100  N.  Y.  S.  504; 
De  Lucca  v.  North  Little  Rock, 
142  Fed.  597;  Crofiford  v.  Atlanta 
&c.  R.  Co.,  158  Ala.  288.  48  So.  366; 
Sioux  City  Seed  Co.  v.  Detroit  &c. 
R.  Co.,  184  Mich.  181,  150  N.  W. 
841;  Murphy  v.  Chicago  &c.  Ry. 
Co.,  66  Wash.  663,  120  Pac.  525. 


S07 


COMPENSATION    .\.\l>    |)\MA(iKS 


1243 


of  the  general  public,  which  can  not  l)e  taken  from  the  abutting 
owner  without  conipensaticjii.-"  It  is  difticult  to  lay  down  gen- 
eral rules  u])on  this  subject  for  much  depends  upon  the  situation 
of  the  particular  pro])erty  and  surrounding  circumstances,  but  it 
will  not  do  to  broadly  hold  that  there  is  no  case  where  the  vaca- 
tion or  closing  of  a  street  may  not  be  such  an  injury  as  to  entitle 
rn  adjoining  owner  to  compensation.  One  court  addressing 
itself  on  this  subject  has  said  :  "The  right  of  recovery  exists 
where,  for  the  benefit  of  the  public,  private  property  has  been 
specially,  even  though  lawfidly  damaged — that  is,  in  a  way  not 
common  to  the  public,  and  hence  in  excess  of  the  damage 
sustained  by  the  public  generally ;  and  such  damage  must  be 
occasioned  by  a  direct  physical  disturbance  of  a  property  right, 
of  a  character  for  which  redress  could  have  been  had  at  the  com- 
mon law,  if  such  disturbance  had  not  been  authorized  by  stat- 
utory enactment.  It  is  not  enough  that  the  damage  exceeds 
merely  in  amount  that  sustained  by  the  public  generally.  It 
must  be  greater  in  kind — that  is,  greater  by  reason  of  its  peculiar 
nature;  for  if  only  greater  in  degree  no  recovery  can  be  had.'"-' 


20  Morgan  v.  Railroad  Co.,  96  U. 
S.  716,  24  L.  ed.  743;  Imlay  v. 
Union  Branch  &c.  R.  Co.,  26  Conn. 
249,  68  Am.  Dec.  392;  Macon  v. 
Franklin,  12  Ga.  239;  Peoria  v. 
Johnston,  56  111.  45;  Haynes  v. 
Thomas,  7  Ind.  38;  Ross  v.  Tiionip- 
son,  78  Ind.  90;  Indianapolis  v. 
Kingsbury.  101  Ind.  200,  51  Am. 
Rep.  749;  Fossison  v.  Landry,  123 
Ind.  136,  24  N.  E.  96;  Central 
Branch  &c.  R.  Co.  v.  Andrews,  41 
Kans.  370,  21  Pac.  276;  Grand  Rap- 
ids &c.  R.  Co.  V.  Heisel,  38  iNIich. 
62.  31  Am.  Rep.  306,  opinion  by 
Cooley,  J.;  Port  Huron  &c.  R.  Co. 
V.  Voorhies,  50  Mich.  506,  15  N.  W. 
882;  Chicago  &c.  R.  Co.  v.  Hazels. 
26  Nebr.  364,  42  N.  W.  93;  Johns- 
ton V.  Old  Colony  R.  Co.,  18  R.  T. 
i)42.  29  Atl.  594,  49  Am.  St.  800. 
See    also    Powell    v.    Houston    &c. 


R.  Co.,  104  Tex.  219,  135  S.  W. 
1153,  46  L.  R.  A.  (N.  S.)  615;  notes 
in  2  L.  R.  A.  (N.  S.)  269,  18  L.  R. 
A.  (N.  S.)  268,  and  30  L.  R.  A. 
(N.  S.)  62)7.  Injury  caused  to  a 
country  place  by  the  fact  that  the 
railroad  runs  between  it  and  a  city 
is  general  and  not  special.  Little 
Rock  &c.  R.  Co.  V.  Newman.  7?i 
Ark.  1,  83  S.  W.  653. 

21  Metropolitan  West  Side  El.  R. 
Co.  V.  Goll,  100  111.  App.  323:  citing 
East  St.  Louis  v.  OTlynn,  119  111. 
200,  10  N.  E.  395,  59  Am.  Rep.  795: 
Gilbert  v.  Greeley  &c.  R.  Co.,  13 
Colo.  501,  22  Pac.  814:  Parker  v. 
Catholic  Bishop  of  Chicago,  146 
111.  158,  34  N.  E.  473;  Chicago  v. 
Burcky,  158  111.  103,  42  N.  E.  178, 
29  L.  R.  A.  568,  49  Am.  St.  142. 
See  generally  Powell  v.  Houston 
&c.  R.  Co.,  104  Tex.  219,  135  S.  W. 


§  1244 


RAILROADS 


808 


§  1244  (982).  Compensation  must  be  made  in  money — Prin- 
ciple not  violated  by  deducting  special  benefits. — The  inflexible 
rule  is  that  compensation  lor  property  seized  h}'  \irtue  of  the 
power  of  eminent  domain  must  be  made  in  money.'-'-  The  rule 
that  benefits  may  be  deducted  from  the  dama.^es  has  been  said 
to  violate  the  j^rinciple  that  compensation  must  be  made  in 
luoney,  but  this,  we  \-enture  to  say,  is  a  mistake.  The  lei^isla- 
ture.  it  is  true,  has  no  power  to  prescribe  tiiat  compensation 
shall  l)e  made  in  anything'  else  than  money,-'"  but,  if  a  land-owner 
suffers  no  loss  he  can  not  be  said  to  be  de])rived  of  projjerty, 
and  if  he  recei\es  benefits  equal  to  the  xrilue  ol'  the  land  taken 
he  suffers  no  loss.  If  the  construction  of  a  railroad  enhances 
the  value  of  lands  not  taken,  then  to  the  extent  that  such  value 
is  enhanced  is  the  loss  of  the  owner  reduced.  In  allowing-  bene- 
fits to  be  considered  the  court  simply  ascertains  the  extent  of 
the  loss  actually  sustained  by  the  land-owner  and  does  not  pay 
liim  compensation  in  benefits.  It  is  obvious  that  on  princi])le  it 
is  only  special  benefits  that  can  be  deducted  since  it  is  onh'  such 
benefits  that  the  land-owner  secures  as  an  individual,  for  a  gen- 
eral benefit  does  not  move  to  him  in  his  character  of  an  indi- 
vidual pro])erty  owner. 


1153,  46  L.  R.  A.  (N.  S.)  615,  where 
many  other  cases  are  cited  to  the 
efifect  that  there  may  be  a  rip;ht  to 
damages  even  where  the  street  is 
closed  or  obstructed  although  is 
not  in  front  of  the  land-owner's 
premises,  when  the  injury  is  spe- 
cial. 

--  Fletcher  v.  Peck,  6  Cranch  (U. 
S.)  87,  145,  3  L.  ed.  162;  Sanborn 
v.  Belden,  51  Cal.  266;  •Burlington 
&c.  R.  Co.  v.  Schweikart,  10  Colo. 
178,  14  Pac.  329;  St.  Louis  &c.  R. 
Co.  V.  Teters,  68  111.  144;  State  v. 
Beackmo,  8  Blkf.  (Tnd.)  246;  Henry 
v.  Dubuque  &c.  R.,  2  Iowa  288; 
Commonwealth  v.  Peters,  2  Mass. 
125:  Toledo  &c.  R.  Co.  v.  Alunson, 
57  ^lich.  42,  23  N.  W.  455,  20  Am. 


&  Eng.  R.  Cas.  410:  Winona  &c. 
R.  Co.  V.  Waldron,  11  Minn.  515, 
539,  88  Am.  Dec.  100  and  note; 
Brown  v.  Beatty,  34  Miss.  227,  241, 
69  Am.  Dec.  389;  Brown  v.  Chicago 
&c.  R.  Co.,  66  Nebr.  106,  92  N.  W. 
128;  Butler  v.  Sewer  Commission- 
ers, 39  N.  J.  b.  665:  Hill  v.  Mohawk 
&c.  R.  Co.,  7  N.  Y.  152;  Central 
Ohio  R.  Co.  v.  Holler,  7  Ohio  St. 
220;  Memphis  v.  Bolton,  9  Heisk. 
(Tenn.)  508:  Chesapeake  &c.  R. 
Co.  V.  Patton,  6  W.  Va.  147. 

23  Isom  V.  Mississippi  &c.  R.  Co., 
36  Miss.  300;  Commonwealth  v. 
Pittsburg  &c.  R.  Co.,  58  Pa.  St.  26; 
Pennsylvania  R.  Co.  v.  Baltimore 
Szc.  R.  Co.,  60  Md.  263:  Woodfolk 
V,    Nashville    &c.    R.    Co.,   2    Swan. 


809 


COMPENSATION    AND    DAMAGES 


§  124:1 


§  1245  (983).  The  measure  of  compensation  is  a  judicial 
question. — 'I'lie  legislative  dei)artnient  of  .government  has  no 
])o\ver  to  determine  what  shall  he  the  measure  of  compensation. 
The  le.i^islature  possesses  no  judicial  ])ower  and  hence  can  not 
decide  what  compensation  shall  he  paid  a  property  owner  whose 
l^roperty  has  heen  seized  under  llu-  ri.tfht  of  eminent  domain. 
"The  leiifislature  may  determine  what  ])rivate  property  is  needed 
for  puhlic  purposes;  that  is  a  question  of  a  political  and  legis- 
lative character.  But  when  the  taking  has  lieen  ordered,  then 
the  question  of  compensation  is  judicial."-'  What  the  legislature 
can  not  do  directly  it  can  not  do  hy  indirection ;  thus,  it  can  not 
effectively  declare  that  in  assessing  compensation  certain  ele- 
ments which  give  value  to  the  property  seized  shall  he  excluded 
from  consideration.-^    While  it  is  not  competent  for  the  legisla- 


(Tenn.)  421:  Elliott's  Roads  and 
Streets  (3rd  ed.)  §  273.  It  is  not 
witliin  the  power  of  a  court  to  sub- 
stitute the  performance  of  some 
act  as,  for  instance,  the  opening 
of  a  new  highway,  the  grant  of 
special  privileges  or  the  like  for 
money.  Chicago  &c.  R.  v.  Mc- 
Grew.  104  Mo.  282,  15  S.  W.  931: 
Burlington  &c.  R.  Co.  v.  Schwei- 
kart,  10  Colo.  178,  14  Pac.  329.  See 
Thompson  v.  Grand  Gulf  &c.  R. 
Co..  4  :\Iiss.  240,  34  Am.  Dec.  81: 
Chicago  &c.  R.  Co.  v.  Springfield 
&c.  R.  Co.,  67  111.  142;  New  Or- 
leans &c.  R.  Co.  V.  Murrell,  34  La. 
.\nn.  536;  Hewett  v.  Commission- 
ers, 85  Maine  308,  27  Atl.  179; 
Pennsylvania  R.  Co.  v.  Reichert, 
58  Md.  261;  Drury  v.  Midland  R. 
Co..  127  Mass.  571;  Toledo  &c.  R. 
Co.  V.  Munson,  57  Mich.  42,  23  N. 
W.  455:  Bloodgood  v.  Mohawk  &c. 
R.  Co.,  18  Wend.  (N.  Y.)  9,  31  Am. 
Dec.  313  and  note:  Mc.^rthur  v. 
Kelly,  5  Ohio  139;  Chesapeake  &c. 
R.  Co.  v.  Halstead.  7  W.  Va.  301. 
-*  Charles  River  Bridge  v.  War- 
ren   Bridge,    11    Pet.    (U.    S.)    420, 


571.  9  T..  ed.  lH;  Monongahela  Nav. 
Co.  V.  United  States,  148  U.  S.  312. 
13  Sup.  Ct.  622,  37  L.  ed.  463: 
Tripp  V.  Overocker,  7  Colo.  72,  1 
Pac.  695;  Rich  v.  Chicago,  59  111. 
286:  Pennsylvania  R.  Co.  v.  Balti- 
more &c.  R.  Co.,  60  Md.  263:  Paul 
V.  Detroit,  Z2  Mich.  108;  Isom  v. 
■Mississippi  &c.  R.  Co.,  Zd  Miss. 
300;  Vanhorne  Lessee  v.  Dorrance, 
I  Dall.  (Penn.)  304:  Lebanon 
School  Dist.  v.  Lebanon  &c.  Semi- 
nary (Pa.),  12  Atl.  857:  Common- 
wealth V.  Pittsburg  &c.  R.  Co.,  58 
Pa.  St.  26,  50.  See  generally 
Hughes  V.  Todd,  2  Duv.  (Ky.)  188: 
Cunningham  v.  Campbell,  ZZ  Ga. 
625:  Count}-  Court  v.  Griswold,  58 
Mo.  175;  City  of  Kansas  v.  Baird, 
98  Mo.  215,  11  S.  W.  243,  562;  Peo- 
ple V.  McDonald.  69  N.  Y.  362: 
Kiser  V.  Board,  85  Ohio  St.  129. 
97  N.  E.  52.  39  L.  R.  A.  (N.  S.) 
1029. 

-"'  .Monongahela  Nav.  Co.  v. 
United  States.  148  U.  S.  312.  13 
Sup.  Ct.  622,  n  L.  ed.  463.  But  see 
Cambridge  v.  County  Commission- 
?rs.    117   Mnss.   79. 


U246 


RAILROADS 


810 


ture  to  determine  the  measure  of  compensation,  it  is,  neverthe- 
less, competent  for  it  to  limit  the  aggregate  amount  that  shall 
be  expended.-*^ 

§  1246  (984).  Right  to  compensation  not  lost  by  conditional 
grant. — There  can,  of  course,  be  no  doubt  that  where  there  is  an 
unconditional  grant  of  a  right  of  way  the  owner  can  not  after- 
wards successfully  prosecute  proceedings  to  recover  compen- 
sation or  maintain  an  action  for  damages,  but  a  different  rule 
applies  where  there  is  a  conditional  grant  and  the  conditions  of 
the  grant  are  not  performed.  Thus,  where  tlic  grant  is  upon 
the  express  condition  that  the  road  shall  be  constructed  within 
a  designated  time,  and  the  condition  is  not  performed  and  the 
road  is  built  after  the  expiration  of  the  time  limited  in  the  grant. 
the  owner  is  entitled  to  compensation.-'    It  was  also  held  in  the 


2*5  Shoemaker  v.  United  States. 
147  U.  S.  282.  1.3  Sup.  Ct.  .361.  37 
I.,  ed.  170. 

27  Bredin  v.  Pittsburg  &c.  R.  Co.. 
165  Pa.  St.  262,  31  Atl.  39.  A  con- 
veyance of  part  of  a  lot  for  railway 
purposes  does  not  operate  to  re- 
lease the  railway  company  from 
damages  for  injury  to  another  lot 
caused  bj'  the  construction  of  an 
embankment.  Atchison  &c.  R.  Co. 
V.  Pratt,  53  111.  App.  263.  Sec  also 
Baltimore  &c.  R.  Co.  v.  Bouvier 
70  N.  J.  Eq.  158,  62  Atl.  868.  In  this 
case  the  court  held  that  where  a 
railroad  com])any  had  entered  on 
land  under  a  right  of  way  deed,  in 
which  it  covenanted  anjong  other 
things  to  erect  a  passenger  station 
and  double-track  its  road  for  a  cer- 
tain distance,  which  conditions  it 
failed  to  fulfill,  the  improvements 
made  by  such  company  on  the  land 
were  not  to  be  considered  in  de- 
termining, in  condemnation  pro- 
ceedings thereafter  instituted,  the 
damages    suffered    by    the   vendor; 


that  in  fixing  the  price  of  land  con- 
veyed to  the  railroad  for  right  of 
way  the  benefit  resulting  to  the 
landowner  from  improvements  to 
be  made  by  the  railroad  in  the  way 
of  a  passenger  station  and  double 
tracks  having  been  taken  into  con- 
sideration in  fixing  the  compensa- 
tion under  the  deed,  the  compara- 
tive value  of  the  land  with  and 
without  the  advantages  of  such 
improvements  was  determinative 
of  the  abatement  or  allowance  to 
the  railroad  company  in  fixing  the 
price  for  the  land  conveyed;  and 
that  as  it  did  not  appear  that  any 
benefit  would  result  to  the  vendor 
from  such  improvements,  the  road 
being  distinctly  one  for  the  car- 
riage of  freight,  a  breach  of  such 
covenants  by  the  railroad  company 
did  not  debar  it  of  equitable  relief, 
in  condemnation  proceedings  insti- 
tuted by  it  after  declaration  of  a 
forfeiture  for  the  breach,  with  re- 
spect to  the  allowance*to  the  ven- 
dr)r   of  compensation  for  improve- 


811 


COMPENSATION'    AND    DAMAGES 


§  1247 


case  cited  in  the  note  that  a  recital  of  payment  of  daniaijcs  did 
not  take  away  the  grantor's  right  to  compensation  for  taking  the 
land  after  the  time  limited  for  the  construction  of  the  road  had 
expired.  And  it  has  been  held  that  the  purchase  by  railroad  of 
an  additional  right  of  way  for  double  tracking  did  not  settle 
future  damages  for  increased  drainage  onto  land,  made  neces- 
sary by  change  of  grade,  where  at  the  time  of  the  transaction 
the  land-owner  did  not  know  and  could  not  reasonably  have 
anticipated  that  such  a  change  was  contemplated.^® 

§  1247  (985),  Time  at  which  compensation  is  computed. — 
The  general  rule  is  that  the  land-owner  is  entitled  to  compensa- 
tion for  the  value  of  his  land  at  the  date  of  the  taking,  and  the 
fact  that  he  has  made  improvements  witli  the  knowledge  of  the 
fact  that  it  is  proposed  to  build  a  railroad  does  not  preclude  him 
from  claiming  pay  for  such  improvements,-''  at  least  where  they 


ments  already  made  by  such  com- 
pany on  the  land.  But  see  Leeds 
V.  Camden  &c.  R.  Co.,  53  N.  J.  L. 
229,  23  Atl.  168:  Trimmer  v.  Penn. 
&c.  R.  Co.,  55  N.  J.  L.  46.  25  Atl. 
932;  Briggs  v.  Railroad  Co.,  56 
Kans.  526,  43  Pac.  1131. 

28  Chicago  &c.  R.  Co.  v.  Hoff- 
man (Ind.  App.),  119  N.  E.  169. 

29  Sherwood  v.  St.  Paul  &c.  R. 
Co.,  21  Minn.  122;  State  v.  Carra- 
gan,  36  N.  J.  L.  52;  Wall  Street,  In 
re,  17  Barb.  (N.  Y.)  617;  Driver  v. 
Western  Union  R.  Co..  32  Wis. 
569.  14  Am.  Rep.  726;  Kricr  v.  Mil- 
waukee Northern  R.  Co.,  139  Wis. 
207,  120  N.  W.  847.  See  also  Chi- 
cago &c.  R.  Co.  V.  Mogridge.  116 
Tenn.  445,  92  S.  W.  1114;  McElroy 
V.  Kansas  City  &c.  R.  Co.,  172  Mo. 
546,  72  S.  W.  913;  Portland  v.  Lee 
Sam.  7  Ore.  397:  Van  TTuson  v. 
Omaha  Bridge  &c.  R.  Co..  118 
Iowa  366,  92  N.  W.  47.  In  Driver 
V.  Western  Union  R.  Co.,  supra,  it 
appeared    that    "plaintiff    was    noti- 


fied by  defendants  that  part  of  cer- 
tain lands  bought  by  him  to  erect 
buildings  on  would  be  taken  by 
defendants  for  their  railroad,  and 
proceedings  were  commenced 
therefor,  plaintiff,  notwithstanding, 
erected  his  buildings,  and  defend- 
ants afterward  took  the  land."  The 
court  said:  "Upon  the  commission- 
ers making  and  filing  their  report, 
and  payment  or  legal  tender  of  the 
appraisement  to  the  owner,  or  up- 
on the  payment  of  the  amount  to 
the  clerk  of  the  court  to  which  the 
appeal  has  been  taken,  title  vests 
in  the  company.  Now,  the  7th  of 
May  (after  the  buildings  were 
erected)  w^as  the  time  the  commis- 
sioners made  and  filed  their  award, 
and  when  the  company,  by  deposit- 
ing the  amount  thereof  with  the 
clerk,  acquired,  under  the  charter, 
the  right  to  lot  seven,  this,  then, 
was  the  actual  taking  of  the  prop- 
erty for  the  use  of  the  road,  and 
the   time   to  fix   its  value,   not  only 


§  1247  RAILROADS  812 

were  made  before  the  proceedings  were  commenced.''^  Hut  he 
certainly  can  not  make  such  improvements  after  the  taking  and 
obtain  compensation  therefor,  and  some  courts  hold  that  he 
can  not  do  so  where  he  makes  them  in  bad  faith  after  the  com- 
mencement of  the  proceedings.^^  The  authorities  differ  as  to 
when  the  taking  is  complete,  the  question  depending  in  a  great 
measure  upon  the  peculiarities  of  different  state  laws  authoriz- 
ing the  condemnation  of  property  for  railroad  purposes.  In 
states  \\here  the  payment  of  compensation  is  required  to  pre- 
cede the  taking,  the  date  of  the  award  of  appraisers  by  which  is 
determined   the  value  to  be  paid  before  entry ,^-  or  the  date  of 

within    the    intent    of    the    cliartcr,  28    S.    W.   380.      In    most    of   these 

hut   upon    j^encral   principles   appli-  cases    it   was    held   that    compensa- 

cable    to    these    cases."      The    first  tion    could    not    be    recovered    be- 

four  or  five  other  cases  cited  in  this  cause  the  improvements  were  made 

note  also  allow  compensation  even  too  late.     See  also  Cobb  v.  Boston, 

though     the     improvements     were  109  Mass.  438:  Foster  v.  Scott,  136 

made  after  condemnation  proceed-  N.  Y.  577.  32  N.  E.  976.  18  L.  R.  A. 

ings  were  begun.     But  in  Shick  v.  (N.  S.)  543  and  note. 
Pennsylvania      R.     Co..      1      Pears.  ^i  pj^    Hawkstonc    St..    137    .A,pp. 

(Pa.)    264.    1    Legal    Gazette    61.    it  Div.  630,  122  N.'Y.  S.  316,  affd.  in 

was     held     that     an     improvement,  199  N.  Y.  567.  93  N.  E.  7)11;   Lloyd 

erected  by  the  owner,  on  the  prop-  v.   Eair   Haven,  67  \'\.   167.  31   Atl. 

erty,  in   order  to  prevent  its  being  164.     See   also   Re   New   York,    196 

taken    for    public    use    was    not    a  N.  Y.  255,  89  N.  E.  814.  36  L.  R.  A. 

])roper    subject    for    compensation  (N.  S.)  273,  and  cases  cited  in  last 

where  the  company  began  proceed-  preceding    note.      If   after    the    as- 

ings,  filed  a  bond  and  obtained  an  sessment  there  is  a  change  in  plan 

appraisement    in    good    faith,    and  resulting   in   further   injury   to   the 

afterwards  all  the  proceedings  were  property  a   right   of  action   is   held 

set  aside  by  the   court,   except  the  to    exist    for    the    additional    injury 

bond.     See  to  the  same  effect  Cobb  caused  b}^  the  alteration.    Otis  Ele- 

v.    Boston,    109    Mass.    438.      And  vator  Co.  v.   Chicago.  263  111.  419. 

compare   also    Re   New   York.    196  105  N.  E.  3.38,  52  L.  R.  A.  (N.  S.) 

N.  Y.  255.  89  N.  E.  814,  36  L.  R.  A.  192. 

(N.  S.)  273.  =2  Jones  v.  New  Orleans  &c.  R. 
30  Jones  V.  New  Orleans  &c.  R.  Co.,  70  Ala.  227:  Logansport  &c.  R. 
Co.,  70  Ala.  227;  Chicago  &c.  R.  Co.  v.  Buchanan,  52  Ind.  163:  Lafay- 
Co.  V.  Catholic  Bishop,  119  111.  525,  ette  &c.  R.  Co.  v.  Murdock,  68  Ind. 
10  N.  E.  372:  In  re  Forbes  St.,  70  137:  Hampden  &c.  Co.  v.  Spring- 
Pa.  St.  125:  In  re  South  Twelfth  f^eld  &c.  R.  Co..  124  Mass.  118: 
St.,  217  Pa.  362,  66  Atl.  568;  Morris  Blue  Earth  v.  St.  Paul  &c.  R.  Co., 
v.  Colman  County  (Tex.  Civ.  App.),  28  Minn.  503,  11   N.  W.  IZ;   Morin 


813 


COMI'KXSATIOX    AND    lMAr\(ii;S 


§  is-ii 


approval  of  this  award  by  the  court,  where  such  approval  is 
necessar}'  to  its  validity. ^^  is  g-enerally  held  to  be  the  time  to 
which  the  assessment  of  damag^es  must  relate.  Since  there  can 
be  no  constitutional  taking  of  property  until  after  an  assessment 
of  damag-es  to  be  paid  or  tendered,  this  holding  seems  correct 
uj)(>ii  ])rfnciple,^'  though  there  are  cases  in  apparent  conflict  with 
it.^"'  But  in  states  where  the  compensation  does  not  necessarily 
precede  the  taking,  it  has  been  variously  held  that  the  time  of 


V.  St.  Paul  &c.  R.  Co.,  30  Minn. 
100,  14  N.  W.  460:  Pennsylvania  R. 
Co.  v.  First  German  Lutheran  Con- 
gregation, 53  Pa.  St.  445;  Stafford 
V.  Providence,  10  R.  T.  567,  14  Am. 
Rep.  710:  Driver  v.  Western  Union 
R.  Co.,  32  Wis.  569,  14  Am.  Rep. 
726:  Lyon  v.  Green  Bay  &c.  R.  Co.. 
42  Wis.  538:  West  v.  Afilwaukee 
&c.  R.  Co.,  56  Wis.  318,  14  N.  W. 
292.  See  also  Georgia  Southern 
R.  Co.  V.  Small,  87  Ga.  355,  13  S. 
H.  515:  and  see  and  compare  Ft. 
Wayne  &c.  Tract.  Co.  v.  Ft.  Wayne 
&c.  R.  Co.  (Ind.),  80  N.  E.  837; 
Kansas  City  So.  Ry.  Co.  v.  Second 
St.  Imp.  Co.,  256  Mo.  386,  166  S. 
W.  296;  Buckhannon  &c.  R.  Co.  v. 
Great  Scott  Coal  &c.  Co.,  75  W. 
Va.  433,  83  S.  E.  1031.  And  the 
fact  that  the  case  is  retried  de  novo 
on  appeal  does  not  extend  the  time, 
but  damages,  must,  in  such  a  case, 
be  assessed  as  of  the  date  of  the 
original  award.  Lafayette  &c.  R. 
Co.  V.  Murdock,  68  Ind.  137;  Lo- 
gansport  &c.  R.  Co.  v.  Buchanan, 
52  Ind.  163.  In  Arnold  v.  Coving- 
ton &c.  Bridge  Co.,  1  Duv.  (Ky.) 
372,  the  court  held  that  the  assess- 
ment should  1)0  as  of  the  date  of 
the  trial  on  appeal,  but  where,  as 
is  usually  the  case,  the  railroad 
company  is  entitled  to  take  the  land 
upon  payment  or  tender  of  the  ori- 


ginal award,  the  date  when  it  was 
made  would  clearly  be  the  date  of 
the  taking. 

••'■'  Hudson  River  R.  Co.  v.  Out- 
water,  3  Sand.  (N.  Y.)  689;  Beale 
V.  Pennsylvania  R.  Co.,  86  Pa.  St. 
509:  Neal  v.  Pittsburg  &c.  R.  Co., 
31  Pa.  St.  19:  St.  Joseph  &c.  R.  Co. 
V.  Orr,  8  Kans.  419. 

^■*  The  value,  according  to  the 
constitutional  requirement,  must 
be  ascertained  at  the  time  of  mak- 
ing the  assessment,  for,  up  to  the 
moment  of  making  the  assessment 
the  land,  or  its  equivalent  value, 
belongs  to  the  owner,  and  it  is  not 
subject  to  be  taken  for  public  use 
until  the  compensation  has  been 
first  made:  the  owner  is,  therefore, 
entitled  to  receive  its  market  value 
at  the  time.  California  S.  R.  Co. 
v.  Colton  &c.  Co.  (Cal.),  2  Pac. 
38,  14  Am.  &  Eng.  R.  Cas.  194, 
affirmed  on  authority  of  California 
S.  R.  Co.  V.  Kimball,  61  Cal.  90. 
See  65  Cal.  xix;  Bensley  v.  Moun- 
tain Lake  Water  Co.,  13  Cal.  306. 
73  Am.  Dec.  575. 

^•"*  Oregon  &c.  R.  Co.  v.  Barlow, 
3  Ore.  311.  See  Logansport  &c.  R. 
Co.  v.  Buchanan,  52  Ind.  163;  La- 
fayette &c.  R.  Co.  V.  Murdock.  68 
Ind.  137;  Ft.  Wayne  &c.  Tract.  Co. 
V.  Ft.  Wayne  &c.  R.  Co.,  170  Ind. 
49,  83  N.  E.  665.  16  L.  R.  A.  (N. 


^  1247 


RAILROADS 


814 


filing  the  location  and  map  of  the  proposed  route,'"'  or  the  time 
of  filing  the  bond  to  pay  the  damages,'*^  or  the  time  of  bringing 
the  action  for  condemnation  by  filing  a  petition  for  the  assess- 
ment of  damages, •'^^  is  the  time  when  the  property  is  taken.  In 
cases  where  the  road  has  been  constructed  under  a  parol  agree- 
ment with  the  owner,  or  under  proceedings  instituted  in  good 
faith,  but  afterwards  held  invalid,  the  time  of  the  actual  entry 


S.)  537.  In  the  case  first  cited  the 
court  held  that  the  time  of  begin- 
ning proceedings  to  condemn  was 
the  time  for  which  the  assessment 
of  damages  should  be  made. 

36  Whitman  v.  Boston  &c.  R.  Co., 
7  Allen(i\Iass.)  313;  Hazen  v.  Bos- 
ton &c.  R.  Co.,  2  Gray  (Mass.) 
574;  Charleston  Branch  R.  Co.  v. 
County  Commissioners,  7  Mete. 
(Mass.)  78;  Hampden  &c.  Co.  v. 
Springfield  &c.  R.  Co.,  124  ^Nlass. 
118;  Old  Colony  R.  Co.  v.  Miller, 
125  Mass.  1,  28  Am.  Rep.  194;  Mor- 
ris &c.  R.  Co.  V.  Blair,  9  N.  J.  Eq. 
635. 

3"  Schonhardt  v.  Pennsylvania  R. 
Co.,  216  Pa.  224.  65  Atl.  543. 

■''s  South  Park  Comrs.  v.  Dun- 
levy.  91  111.  49;  Dupuis  v.  Chicago 
&C.R.  Co.,  115  111.  97.  3  N.  E.  720; 
Chicago  &c.  R.  Co.  v.  Mines,  221 
111.  448,  11  N.  E.  898;  Missouri  Pac. 
R.  Co.  V.  Hays,  15  Ncbr.  224,  18 
N.  W.  51;  Northeastern  &c.  R.  Co. 
V.  Frazicr,  25  Nebr.  53,  40  N.  W. 
609;  Newport  News  &c.  Electric 
Co.  V.  Lake,  105  Va.  311,  54  S.  E. 
328.  In  Missouri  Pac.  R.  Co.  v. 
Hays,  supra,  the  court  says:  "On 
the  part  of  the  plaintiff  it  was  con- 
tended on  the  trial,  and  is  here, 
that  tlie  assessment  should  be  made 
as  of  the  time  when  the  proceed- 
ings to  condemn  the  property  are 
instituted;    in    other    words,    when 


the  petition  for  the  appointment  of 
commissioners  to  assess  the  dam- 
ages is  filed  with  the  county  judge. 
The  court  below,  however,  held 
that  the  jury  should  make  the  as- 
sessment as  of  the  date  of  the  fil- 
ing of  the  commissioners'  report, 
which  was  something  over  two 
months  later.  There  was  evidence 
tending  to  show  tliat  during  this 
time  the  market  value  of  the  land 
had  materially  advanced  in  conse- 
quence of  the  location  of  the  road. 
The  authorities  seem  to  agree  pret- 
ty generally  that  the  damages  in 
such  cases  must  be  assessed  as  of 
the  time  of  taking;  also  that  the 
increased  value  given  to  the  prop- 
erty by  the  location  of  the  road 
should  be  excluded  in  making  the 
estimate.  The  point  of  chief  dif- 
ficulty, however,  seems  to  be  found 
in  determining  as  to  just  what  con- 
stitutes a  'taking'  within  the  mean- 
ing of  the  law."  After  reviewing 
the  cases  of  Charlestown  Branch 
R.  Co.  V.  County  Commissioners.  7 
Aletc.  (Mass.)  78;  Logansport  &c. 
R.  Co.  V.  Buchanan,  52  Ind.  163; 
Lafayette  &c.  R.  Co.  v.  ]\Turdock, 
68  Ind.  137,  and  South  Park  Com- 
missioners V.  Dunlevy,  91  111.  49, 
the  opinion  continues:  "Tlic  prin- 
ciple of  these  decisions,  which  re- 
quires compensation  for  property 
taken    for    public    use    to    be    esti- 


si.")  ('OMl'EXSATIO.V    AND    DAMAGES  §  1248 

ti])on  the  land  lor  the  purpose  of  building  the  road  has  been  hcJd 
to  I>t'  Ihc-  time  to  which  an  assessment  of  the  land-owner's  dam- 
ages must  relate.^" 

55  1248  (986).  Time  of  payment  of  compensation. — Where  the 
(jucstion  is  not  controlled  by  statute  the  rule  seems  to  be  that 
til*'  pa^iiient  of  compensation  must  precede  the  actual  occupancy 
of  tlu'  land.'"  It  is  well  settled  that  a  preliminary  survey  may  be 
ni;ide  before  ])a}'ment  of  compensation,  and,  indeed,  without  coni- 

niated  with  special  reference  to  its  &c.  R.  Co.  v.  Payne,  2i7  Miss.  700; 

value  at  the  time  of  the  appropria-  Ilenrj'  v.  Dubuque   &c.  R.   Co.,  10 

tion  or  taking,  is  manifestly  just  to  Iowa   540;   Walther  v.   Warner,   25 

ail    concerned.     By   no   other   rule.  Mo.    277;    Presbyterian    Society   v. 

in  cases  of  condemnations  for  uses  Auburn  &c,  R.   Co.,  3  Hill  (N.  Y.) 

of   great   public   interest   and   local  S67;  Williams  v.  New  York  &c.  R. 

benefit,     could     the     valuation     of  Co.,   16  X.  Y.  97,  69  Am.  Dec.  651 

property  in  the  assessment  of  dam-  and  note:  Oregonian  R.  Co.  v.  Hill, 

ages    be    so    successfully    guarded  9   Ore.  Z77.     See   generally  Martin 

against    the   influence    of   enhanced  v.  Tyler,  4  N.  Dak.  278,  60  N.  W. 

values  resulting  specially  from  the  392.  25   L.   R.   A.  838:   Atlanta    &c. 

enterprise."     Scranton  v.  Wheeler.  R.  Co.  v.  Southern  R.  Co.,  131  Fed. 

179  U.   S.   141,   21    Sup.   Ct.   48,  45  657;  Jones  v.  New  Orleans  &c.  R. 

L.  ed.  126.  Co.,  70  Ala.  227;   Southern   R.   Co. 

39  New  York  &c.  R.  Co.  v.  Stan-  v.  Birmingham  &c.  R.  Co.,  130  Ala. 
ley,  35  N.  J.  Eq.  283;  Indiana  Cen-  660,  31  So.  509:  Steele  v.  Tanana 
tral  R.  Co.  v.  Hunter,  8  Ind.  74;  Mines  R.  Co.,  2  Alaska  451;  Little 
Logansport  &c.  R.  Co.  v.  Buchan-  Rock  &c.  R.  Co.  v.  Greer,  77  Ark. 
an,  52  Ind.  163.  But  compare  Cri-  387.  96  S.  W.  129;  San  Francisco 
der  v.  Pittsburgh  &c.  Ry.  Co.,  54  &c.  R.  Co.  v.  Mahoney,  29  Cal.  112; 
Pa.  Super.  Ct.  587.  See  post,  St.  Louis  &c.  R.  Co.  v.  Clark,  119 
§  1269.  'See  also  McElroy  v.  Kan-  Mo.  357,  24  S.  W.  157;  Sweeney  v. 
sas  City  &c.  Line.  172  Mo.  546,  7Z  Montana  Central  R.  Co.,  25  Mont. 
S.  W.  913.  543,  65  Pac.  912;  Brown  v.  Chicago 

40  Cherokee  Nation  v.  Southern  &c.  R.  Co.,  64  Nebr.  62,  89  X.  W. 
Kansas  &c.  R.  Co.,  135  U.  S.  641,  405;  Chicago  &c.  R.  Co.  v.  Doug- 
10  Su]i.  Ct.  965.  34  L.  ed.  295:  lass  Co.  (Nebr.),  95  N.  W.  339;  Orr 
Schreil>er  v.  Chicago  &c.  R.  Co..  v.  Quimly,  54  N.  H.  590:  Johnson 
115  111.  340.  3  N.  E.  427;  Chicago  v.  Baltimore  &c.  R.  Co.,  45  N.  J. 
&c.  R.  Co.  V.  Gates,  120  111.  86,  11  Eq.  454,  17  Atl.  574,  39  Am.  &  Eng. 
N.  E.  527;  Covington  &c.  R.  Co.  R.  Cas.  101;  State  v.  Wells  (N. 
V.  Piel,  87  Ky.  267,  8  S.  W.  449;  Car.L  55  S.  E.  210;  Postal  Tel.  Co. 
Redman  v.  Philadelphia  &c.  R.  Co..  v.  Oregon  Short  Line  R.  Co.,  23 
2>?>    N.    J.    Eq.    165.      See    Memphis  Utah  474,  65  Pac.  735;  Southern  R. 


^  1248 


RAILROADS 


816 


pensation.  for  a  preliminar}-  siir\  cy  is  not  regarded  as  a  taking-," 
but  if  jury  is  wrongfully  inflicted  in  making  such  survey  an 
action  will  lie.  Possession  may  be  taken,  in  some  instances,  be- 
fore comjiensation  is  actually  paid,  as  for  instance,  where  money 
is  paid  into  court  in  a])pr()])riation  proceedings  under  a  statute 
authorizing  such  a  procedure,  but  while  possession  may  be  taken 
the  title  does  not  pass  in  most  jurisdictions  until  payment  of  the 
compensation  awarded  by  the  court.*-  Thus,  it  is  held  in  Ne- 
braska that  the  deposit  money  with  the  county  judge  pending 
condemnation  proceedings  does  not,  unless  withdrawn  by  the 
property  owner,  discharge  the  obligation  of  the  railroad  company 
to  make  compensation  for  the  property  taken.  And  in  the  case 
cited  the  court  said:  "It  is  not  competent  for  either  the  legisla- 
ture or  the  courts  to  appoint  some  person  without  his  consent, 
and  to  say  that  payment  or  deposit  with  such  appointee  shall  be 


Co.  V.  Gregg,  101  Va.  308.  43  S.  E. 
570;  Sherman  v.  Milwaukee  &c.  R. 
Co..  40  Wis.  645;  Stolz  v.  Milwau- 
kee &c.  R.  Co.,  113  Wis.  44,  88 
N.  W.  919,  90  Am.  St.  833.  Where 
payment  is  made  into  court  the 
company  is  generally  entitled  to 
possession.  State  v.  McHatton,  15 
Mont.  159,  38  Pac.  711.  But  see 
Pennsylvania  R.  Co.  v.  National 
&c.  Co.,  53  N.  J.  Eq.  178,  32  Atl. 
220. 

•'1  California  &c.  R.  Co.  v.  Cen- 
tral &c.  R.  Co.,  47  Cal.  528;  Cham- 
bers V.  Cincinnati  &c.  R.  Co.,  69 
Ga.  320,  10  Am.  &  Eng.  R.  Cas. 
376;  Burrow  v.  Terre  Haute  &c. 
R.  Co.,  107  Ind.  432,  8  N.  E.  167; 
Chicago  &c.  R.  Co.  v.  Watkins.  43 
Kans.  50.  22  Pac.  985:  Nichols  v. 
Somerset  &c.  R.  Co.,  43  ^Mainc 
356;  Republican  &c.  R.  Co.  v.  iMuk, 
18  Nehr.  82,  24  N.  W.  439;  Ask  v. 
Cummings.  50  N.  H.  591;  Orr  v. 
Quimly.  54  N.  H.  590;  Lyon  v. 
Green  Bay  &c.  Co.,  42  Wis.  538: 
ante,  §§   1134,   1233.     See   also   At- 


lanta   &c.    R.    Co.    V.    Southern    R. 
Co.,   131   Fed.  657. 

•*-  Lake  Erie  &c.  R.  Co.  v.  Kin- 
sey,  8  Ind.  514,  14  Am.  &  Eng.  R. 
Cas.  309:  Blackshire  v.  Atchison 
&c.  R.  Co.,  13  Kans.  514;  Harness 
V.  Chesapeake  &c.  R.  Co.,  1  Md. 
Ch.  248;  Evans  v.  Missouri  &c.  R. 
Co.,  64  Mo.  453;  Green  v.  Missouri 
Pac.  R.  Co.,  82  Mo.  653;  Manches- 
ter &c.  R.  Co.  V.  Keene,  62  N.  H. 
81,  State  V.  Wells,  142  N.  Car.  590, 
55  S.  E.  210;  Davidson  v.  Texas  &c. 
R.  Co.,  29  Tex.  Civ.  App.  54,  67 
S.  W.  1093;  Southern  R.  Co.  v. 
Gregg,  101  Va.  308,  43  S.  E.  570. 
See  also  note  to  Ft.  Wayne  &c. 
Trac.  Co.  v.  Ft.  Wayne  &c.  R.  Co., 
170  Ind.  49,  83  N.  E.  665,  16  L.  R. 
A.  (N.  S.)  537.  citing  additional 
authorities  and  reviewing  many 
cases.  But  sec  Old  Colony  R.  Co. 
V.  Miller,  125  Mass.  1,  28  Am.  Rep. 
194;  Davis  v.  Russell,  47  Maine 
443:  Wallace  v.  New  Castle  &c.  R. 
Co..  138  Pa.  St.  168,  22  Atl.  95; 
Paducah    &c.    R.    Co.   v.   Miller,   12 


817  COMI'KNSATION    AM)    DAiMAGES  §  1210 

equivalent  to  payment  to  him.  If  the  statute  expressly  so  pro- 
vided or  was  susceptible  of  that  construction,  it  would  be  un- 
constitutional and  xoid."*-'* 

§  1249  (987).  Benefits — General  survey  of  the  subject. — It 
is  obvious  that  there  must  ])e  a  difference  in  respect  to  benehts 
in  cases  where  land  is  taken  for  streets  or  highways,  and  cases 
where  land  is  taken  for  a  railroad,  since  the  owner  of  the  fee  of 
land  taken  for  a  street  or  hijT^hway  retains  a  beneficial  interest 
in  the  use  and  enjoyment  of  the  public  way,"*'  wdiereas.  in  the 
case  of  the  appropriation  of  land  for  railroad  purposes,  the  right 
to  the  use  and  possession  of  the  land  acquired  by  the  railroad 
com])any  is  generally  exclusive. ^'^  The  exclusive  right  acquired 
l)y  a  railroad  compan}'  to  the  land  appropriated  excludes  the  use 
of  it  1)\-  the  o\\-ner  for  the  purposes  of  traveling  thereon,  whereas 
an  urban  street  or  rural  highway  afifords  facilities  for  travel. 
Hut  while  there  is  a  diflference  in  the  nature  of  the  easement 
acquired,  the  authorities  lay  down  much  the  same  general  rules 
in  regard  to  the  consideration  of  benefits  for  both  classes  of 
cases.  Where  there  is  no  statute  to  the  contrary  the  doctrine 
supported  by  the  weight  of  authority  is  that  special  benefits 
resulting  from   the  construction  and   operation   of  the  railroad 

Heisk.    (Tenn.)    1.      So,    it    is    held  ■*'*  Brown  v.  Chicago  &c.  R.  Co., 

in    some  jurisdictions    where   there  64  Nebr.  62,  89  N.  W.  405. 

is    no    constitutional    provision    to  ***  Elliott  Roads  and  Streets  (3rd 

the   contrary    and    adequate    provi-  ed.),  §§  876,  891. 

sinn    is    made    b}^    statute    it    may  "*•>  Atlantic  &c.  Co.  v.  Chicago  &c. 

authorize     an     entry    before     pay-  R.    Co.,   6   Biss.    (U.    S.)    158,    Fed. 

ment.      Carolina    Cent.    R.    Co.    v.  Cas.   No.  632;  Cairo   &c.  R.  Co.  v. 

McCaskill,  94  N.  Car.  746;   North-  Brevoort,  62  Fed.  129,  136,  25  L.  R. 

ern  Pac.   R.   Co.  v.   Burlington  &c.  .\.  527  and  note;   Hayden  v.  Skill- 

R.    Co.,   4    Fed.   298;    Cairo   &c.   R.  ings.    78    Elaine    413,    6    .Atl.    830; 

Co.  V.  Turner.  31  Ark.  494,  25  Am.  Brainard  v.  Clapp,  10  Cush.  (Mass.") 

Rep.  564;  State  v.  Jacksonville  &c.  6,  57  .Am.  Dec.  74:   TTazen  v.  Bos- 

R.  Co.,  20  Fla.  616.  and  other  cases  ton    &c.    R.    Co.,    2    Gray    (Mass.) 

cited   in    10  Am.   &  Eng.   Ency.  of  574;  Proprietors  &c.  v.  Nashua  &c. 

Law  (2d  ed.).  1139,  1140.     But  see  R.    Co..    104   IMass.    1,   6    Am.   Rep. 

Steinhart    v.    Superior    Court.     137  181:  Jackson  v.  Rutland  &c.  R.  Co., 

Cal.  575.  70  Pac.  629.  59  L.   R.  A.  25  Vt.  150,  60  Am.  Dec.  246;  Con- 

404,  92  Am.  St.  183.     So,  a  tender  nccticut   &c.   R.   Co.   v.   Holton,  32 

may  be  sufficient.  Vt.  43. 


5  1240 


H.VILROAD, 


818 


may  be  taken  into  consideration  in  estimating'  compensation,'*® 
but  there  is  conflict  of  authority  on  this  point.*"  In  many  of  the 
states  the  constitution  or  the  statute  excludes  benefits  from  con- 
sideration, and,  of  course,  in  those  states  l:)enefits  can  not  be  con- 
sidered, although  they  may  be  special  and  substantial.*^  Some 
of  the  state  constitutions  use  the  term  "just  compensation,"  and 


■•"  San  Francisco  <S;c.  Co.  v.  Cald- 
well. 31  Cal.  367;  Moran  v.  Ross. 
79  Cal.  549.  21  Pac.  958:  VVhiteman 
V.  Wilmington  &c.  R.  Co.,  2  Harr. 
(Del.)  514,  33  Am.  Dec.  411:  At- 
lanta V.  Central  &c.  R.  Co.,  53  Ga. 
120;  Alton  &c.  R.  Co.  v.  Carpenter, 
14  111.  190;  Todd  v.  Kankakee  &c. 
R.  Co.,  78  111.  530;  Indiana  Central 
R.  Co.  V.  Hunter.  8  Ind.  74;  New 
Orleans  &c.  R.  Co.  v.  Lagarde,  10 
La.  Ann.  150;  Vicksburg  &c.  R. 
Co.  V.  Calderwood,  15  La.  Ann. 
481;  !Meacham  v.  Fitchbnrg  &c.  R. 
Co..  4  Cnsh.  (.Mass.)  291;  Winona 
&c.  R.  Co.  V.  Waldron,  11  Minn. 
515.  88  Am.  Dec.  100  and  note; 
Wyandotte  &c.  Co.  v.  Waldo.  70 
Mo.  629;  Ragan  v.  Kansas  Cit}'  &c. 
R.  Co..  Ill  ^lo.  456,  20  S.  W.' 234; 
I'remont  &c.  R.  Co.  v.  Whalen,  11 
Xcbr.  585,  10  N.  W.  491;  Kings  Co. 
R.  Co.,  In  re.  58  Hun  608.  12  N.  Y. 
S.  198;  Haislip  v.  Wilmington  &c. 
R.  Co.,  102  N.  Car.  376.  8  S.  E.  926; 
Kramer  v.  Cleveland  &c.  R.  Co.,  5 
Ohio  St.  140;  Columbus  &c.  R.  Co. 
V.  Simpson.  5  Ohio  St.  251;  Sym- 
onds  V.  Cincinnati  &c.  R.  Co.,  14 
Ohio  147.  45  Am.  Dec.  529  and 
note;  Pennsylvania  R.  Co.  v.  Heis- 
ter,  8  Pa.  St.  445;  Dela\vare  &c.  Co. 
V.  Burson,  61  Pa.  St.  369;  Long  v. 
Harrisburgh  &c.  Co.,  126  Pa.  St. 
143.  19  Atl.  39;  Holton  v.  Milwau- 
kee &c.  R.  Co.,  31  Wis.  27;  Neilson 
\-.  Chicago  &c.  R.  Co.,  58  Wis.  516, 


17  X.  W.  310.  See  also  Bauman 
V.  Ross,  167  U.  S.  548,  17  Sup.  Ct. 
966.  42  L.  ed.  270;  Pittsburg  &c. 
R.  Co.  V.  Wolcott,  162  Ind.  399,  69 
X.  E.  451;  Terre  Haute  &c.  R.  Co. 
V.  Flora,  29  Ind.  App.  442,  64  N.  E. 
648,  650;  Abney  v.  Texarkana  &c. 
R.  Co.,  105  La.  446.  29  So.  890; 
Cox  V.  Philadelphia  &c.  R.  Co.,  215 
Pa.  506,  64  Atl.  729;  Bramlet  v. 
Greenville,  88  S.  Car.  110.  70  S.  E. 
450.  The  various  distinctions  made 
and  the  dififerent  lines  of  cases  are 
considered  in  the  next  section. 

•^"  Alabama  &c.  R.  Co.  v.  Bur- 
kett,  42  Ala.  83;  St.  Louis  &c.  R. 
Co.  V.  Anderson,  39  Ark.  167,  17 
Am.  &  Eng.  R.  Cas.  97;  Koesten- 
bader  v.  Peirce,  41  Iowa  204;  Aslier 
V.  Louisville  &c.  R.  Co.,  87  Ky. 
391,  8  S.  W.  854;  Brown  v.  Beatty. 
34  Miss.  227,  60  Am.  Dec.  389;  New^ 
Orleans  &c.  R.  Co.  v.  Move.  39 
Miss.  374;  Virginia  &c.  R.  Co.  v. 
Lovejoy,  8  Nev.  100;  Packard  v. 
Bergen  &c.  R.  Co..  54  N.  J.  L.  229, 
23  Atl.  722.  See  also  Murphy  &c. 
R.  Co.,  66  Wash.  663,  120  Pac.  525. 

■*8  Britton  v.  Des  Moines  &c.  R. 
Co.,  59  Iowa  540,  13  N.  W.  710; 
Ham  V.  Wisconsin  &c.  R.  Co.,  61 
Iowa  716,  17  N.  W.  157;  St.  Joseph 
&c.  R.  Co.  V.  Orr.  8  Kans.  419; 
Atchison  &c.  R.  Co.  v.  Blackshire, 
10  Kans.  477;  Reisner  v.  Atchison 
&c.  R.  Co.,  27  Kans.  382;  Giesy  v. 
Cincinnati    &c.    R.   Co..   4   Ohio   St. 


819 


COMPENSATION    AND    DAMAGKS 


§  1249 


there  is  great  diversity  of  opinion  as  to  the  meaning  and  effect 
to  be  assigned  to  the  term.  Some  of  the  cases  affirm  that  it  ex- 
cludes benefits  from  consideration,  others  assert  a  contrary  doc- 
trine, and  still  others  that  it  excludes  the  consideration  of  bene- 
fits as  a  deduction  from  the  value  of  the  land  actually  appropri- 
ated, but  not  as  to  damages  for  land  injured  but  not  actually 
taken. ^'•*  We  can  see  no  sufficient  reason  for  holding  that  the 
term  "just"  adds  such  force  as  to  exclude  the  consideration  of 
special  or  peculiar  benefits,  for  if  the  land-owner's  property  is 
enhanced  in  value  to  that  extent  there  is  just  compensation.  It 
seems  to  us  that  all  that  is  required  under  any  law.  except  one  di- 
rectly excluding  a  consideration  of  benefits,  is  that  the  land- 
owner shall  receive  fair  and  reasonal)le  compensation  for  the  in- 
jury he  sustains,  and  that  in  ascertaining  the  extent  of  his  in- 
jury, special  but  not  general  benefits  should  be  taken  into  con- 
sideration.°°    The  matter  of  benefits,  however,  may  be  made  the 


308;  Little  :Miami  &c.  R.  Co.  v. 
Collett,  6  Ohio  St.  182;  Cincinnati 
&c.  R.  Co.  V.  Longworth,  30  Ohio 
St.  108;  Bowen  v.  Atlantic  &c.  R. 
Co.,  17  S.  Car.  574.  See  Grand 
Rapids  &c.  R.  Co.  v.  Horn,  41  Ind. 
479;  McMahon  v.  Cincinnati  &c.  R. 
Co.,  5  Ind.  413;  White  Water  Val- 
ley R.  Co.  V.  McClure,  29  Ind.  536; 
Brown  v.  Beatty,  34  Miss.  227,  241, 
69  Am.  Dec.  389;  Isom  v.  ]\Iissis- 
sippi  &c.  R.  Co.,  36  Miss.  300;  New 
Orleans  &c.  R.  Co.  v.  Moye,  39 
]\Iiss.  374;  Board  of  Levee  Com- 
missioners V.  Harkleroads,  62  Miss. 
807;  Swayze  v.  New  Jersey  i\Tid- 
land  R.  Co.,  36  N.  J.  L.  295;  Cra- 
ter V.  Fritts,  44  N.  J.  L.  374;  Bev- 
icr  v.  Dillingham,  18  Wis.  529.  But 
see  Balfour  v.  Louisville  &c.  R. 
Co.,  62  Miss.  508.  See  Beveridge 
V.  Lewis,  137  Cal.  619,  67  Pac. 
1040.  70  Pac.  1083,  59  L.  R.  A.  581. 
■i!"  Laflin  v.  Chicago  &c.  R.  Co., 
33  Fed.  415;  Dolores  &c.  Co.  v. 
Hartman.  17  Co],..  138.  29  Pac.  378; 


Savannah  v.  Hartridge,  37  Ga.  113; 
Elizabethtown  &c.  R.  v.  Helm,  8 
Bush.  (Ky.)  681;  Louisville  &c.  R. 
Co.  V.  Thompson,  18  B.  Mon.(Ky.) 
735;  Bangor  &c.  R.  Co.  v.  Mc- 
Comb,  60  Maine  290;  Shipley  v. 
Baltimore  &c.  R.  Co.,  34  Md.  336; 
Brown  v.  Beatty,  34  3iliss.  227,  69 
Am.  Dec.  389;  Isom  v.  Mississippi 
&c.  R.  Co.,  36  Miss.  300;  Newman 
V.  Metropolitan  &c.  R.  Co.,  118  N. 
Y.  618,  23  N.  E.  901,  7  L.  R.  A.  289 
and  note;  Oregon  &c.  R.  Co.  v. 
Wait,  3  Ore.  91;  Paducah  &c.  R. 
Co.  V.  Stovall,  12  Heisk.  (Tenn.") 
1:  Paris  v.  Mason,  37  Tex.  447; 
Milwaukee  &c.  R.  Co.  v.  Eble,  4 
Chand.  (Wis.)  72;  Munkwitz  v. 
Chicago  &c.  R.  Co..  64  Wis.  403, 
25  N.  W.  438.  22  Am.  &  Eng.  R. 
Cas.  151;  Waslil)urn  v.  Milwaukee 
&c.  R.  Co.,  59  Wis.  364.  18  N.  W. 
328.  See  also  Oil  Belt  R.  Co.  v. 
Lewis,  259  111.  108.  102  N.  E.  228. 

"'"  Monongahela      Nav.      Co.      v. 
United    States,    148    U.    S.    312,    13 


§  1250 


RAILROADS 


820 


subject  of  a  contract  between  the  parties.  In  one  case  where  a 
raih-oad  company  contracted  with  the  property  owner  that  on 
])ayment  of  a  bonus  it  should  have  hcense  to  construct  its  rail- 
road in  advance  of  condemnation  proceedings  and  that  on  these 
proceedings  the  property  owner  was  to  be  paid  the  value  of  the 
property  taken,  the  contract  was  construed  to  exclude  consider- 
ation of  special  benefits  and  the  land-owner  was  entitled  to  the 
entire  value  of  his  land  without  diminution. ^^ 

§  1250    (988).     Benefits— Different   lines   of   decision.— It   will 

be  found  upon  a  stud}-  of  ihv  authorities  that  where  the  sul)ject 
is  not  controlled  by  ])eculiar  constitutional  or  statutory  provi- 
sions there  are  or  have  been  four  general  lines  of  cases.'"'-  (1) 
Those  holding  that  benefits  can  not  in  any  case  be  set  ofif  against 
the  damages.^''    (2)  Those  holding  that  special  benefits  may  not 


Sup.  Ct.  622.  37  L.  ed.  463:  Pitts- 
burgh &c.  R.  Co.  V.  Rose,  74  Pa. 
St.  362.  See  aLso  Brand  v.  Union 
Elevated  R.  Co.,  258  111.  133,  101 
N.  E.  247.  Ann.  Cas.  1914B,  and 
note.  And  as  to  Kansas  constitu- 
tion applying  to  right  of  way  but 
not  to  condemnation  for  depots  or 
the  like  when  no  part  of  the  right 
of  way,  see  Smith  v.  IMissouri  Pac. 
R.  Co.,  90  Kans.  757,  136  Pac.  253. 
As  to  what  is  not  a  special  benefit, 
see  Illinois  &c.  R.  Co.  v.  Borms, 
219  111.  179.  76  N.  E.  149. 

•''1  McElroy  v.  Kansas  City  &c. 
R.  Co.,  172  Mo.  546,  72  S.  W.  913. 

''-  Elliott  Roads  and  Streets  ('3rd 
ed.),  §  276.  We  use  the  term  inci- 
dental injuries  in  this  immediate 
connection  as  meaning  injuries  to 
the  property  not  actually  taken. 
Mr.  Lewis  in  his  work  on  Eminent 
Domain  divides  them  into  five 
classes,  mentioning  the  states  in 
each  class,  as  shown  in  c  -""ont 
New  York  decision,  but  as  th^ 
court    shows    the    classification    is 


not  entirely  correct  although  it  is 
approximately  so.  In  re  Water 
Front.  190  X.  Y.  350,  83  N.  E.  299, 
301,  16  L.  R.  A.  (N.  S.)  335.  The 
cases  are  also  classified  and  re- 
viewed in  notes  in  8  L.  R.  A.  (N. 
S.)  794  and  L.  R.  A.  1918A.  884. 
et  seq. 

53  Brown  V.  Beatty.  34  :\Iiss.  227, 
69  Am.  Dec.  389;  Isom  v.  Missis- 
sippi R.  Co.,  36  Miss.  300:  New 
Orleans  &c.  R.  Co.  v.  Moye,  39 
Miss.  374.  See  also  Texas  &c.  R. 
Co.  V.  ^Matthews,  60  Tex.  215: 
loncs.  V.  Wills  Valley  R.  Co.,  30 
Ga.  43:  Selma  &c.  R.  Co.  v.  Keith, 
53  Ga.  178:  Sutton's  Heirs  v. 
Louisville,  5  Dana  (Ky.)  28;  Eliza- 
bethtown  &c.  R.  Co.  v.  Helm's 
Heirs.  8  Bush.  (Ky.)  681;  Louis- 
ville &c.  R.  Co.  V.  Thompson,  18 
B.  Mon.  (Ky.)  735;  New  Orleans 
Pac.  R.  Co.  V.  Murrell,  36  La,  Ann. 
344:  Vicksburgh  &c.  R.  Co.  v.  Dil- 
lard,  35  La.  Ann.  1045;  Buflfalo 
Baj'ou  &c.  R.  Co.  v.  Ferris,  26  Tex. 
58b.      But   this   rule   does  not   now 


S21 


COMPENSATK^N     AND    LAAIAGES 


§  1250 


be  set  off  against  the  value  of  the  land  actually  seized,  but  may 
be  set  off  against  incidental  injuries  sustained  by  the  land- 
owner."'* (3)  Those  holding  that  special  benefits  may  be  set  off 
against  the  value  of  the  land  taken  as  well  as  against  incidental 
injuries. ^^  (4)  Those  holding  that  all  l)enefits  both  general  and 
special  may  be  set  off  against  the  damages.  Our  opinion  is  that 
special,  but  not  general  benefits  may  be  deducted  from  the  dam- 


obtain  ill  all  tliese  jurisdictions  at 
least  as  to  all  classes  of  corpora- 
tions, and  is  the  result,  mainly,  of 
constitutional  or  statutory  provi- 
sion. See  even  in  Mississippi, 
where  the  rule  seems  to  have  been 
most  pronounced,  Meridian  v.  Hig- 
gins,  81  Miss.  Z76,  2,2  So.  1. 

5*  Alabama  &c.  Co.  v.  Burket,  42 
Ala.  83:  Savannah  v.  Hartridge,  Z7 
Ga.  113;  Israel  v.  Jewett,  29  Iowa 
475;  Memphis  v.  Bolton,  9  Heisk. 
(Tenn.)  508;  Woodfolk  v.  Nash- 
ville &c.  R.  Co.,  2  Swan  (Tenn.) 
422:  Elliott  Roads  and  Streets  (3rd 
ed.).  §  276.  See  also  Chicago  &c. 
R.  Co.  V.  Rottgering,  26  Ky.  L. 
1167,  83  S.  W.  584;  Peoria  &c. 
Trac.  Co.  v.  Vance,  225  111.  270.  80 
N.  E.  134,  9  L.  R.  A.  (N.  S.)  781; 
East  Side  Levee  &c.  Dist.  v.  Alton 
&c.  R.  Co.,  281  111.  372,  118  N.  E. 
26;  In  re  Water  Front,  190  N.  Y. 
350.  83  N.  E.  299,  16  L.  R.  A.  (N. 
S.')  335  (apparently  adopting  this 
rule  and  holding  that  in  any  event 
an  award  can  not  be  made  for  less 
than  the  value  of  the  property  ac- 
tually taken);  Guthrie  &c.  R.  Co. 
V.  Faulkner,  12  Okla.  532,  72>  Pac. 
290;  Taber  v.  New  York  &c.  R.  Co.. 
28  R.  T.  269,  67  Atl.  9;  Wray  v. 
Knoxville  &c.  R.  Co..  113  Tenn. 
544.  82  S.  W.  471;  Morrison  v. 
l^airmount  &c.  Traction  Co.,  60  W. 
Va.  441,  55  S.  E.  669. 


■"'•'  San  Francisco  &c.  R.  Co.  v. 
Caldwell,  31  Cal.  367;  Pueblo  &c. 
R.  Co.  V.  Rudd,  5  Colo.  270;  Mc- 
Intire  v.  State,  5  Blackf.  (Ind.) 
384;  Heath  v.  Sheetz,  164  Ind.  665, 
74  N.  E.  505;  Pittsburgh  &c.  R.  Co. 
V.  Wolcott.  162  Ind.  399.  69  N.  E. 
451;  Wyandotte  &c.  R.  Co.  v.  Wal- 
do, 70  Mo.  629;  Adden  v.  White 
Mt.  R.  Co.,  55  N.  H.  413,  20  Am. 
Rep.  220;  Swayze  v.  New  Jersey 
Sec.  R.  Co.,  36  N.  J.  L.  299:  Sym- 
onds  V.  Cincinnati,  14  Ohio  147,  45 
Am.  Dec.  529:  Putnam  v.  Douglass 
Co.,  6  Ore.  328,  25  Am.  Rep.  527; 
Hornstein  v.  Atlantic  &c.  R.  Co.. 
51  Pa.  St.  87;  Roots'  Case,  77  Pa. 
St.  276;  Greenville  &c.  R.  Co.  v. 
Partlow.  5  Rich.  (S.  Car.)  428; 
Adams  v.  St.  Tohnsburv  &c.  R.  Co.. 
57  Vt.  240.  See  also  Mississippi 
X'c.  R.  Co.  V.  McDonald.  12  Heisk. 
CTenn.)  54:  Keithsburc  &c.  R.  Co. 
V.  Henrv,  79  III.  290:  St.  Louis  ftjc. 
R.  Co.  V.  Kirby,  104  111.  345;  Tide 
Water  Canal  Co.  v.  Archer,  9  Gill 
&i  J.  (Md.)  479;  Shipley  v.  Balti- 
more &c.  R.  Co.,  34  Md.  336;  Fre- 
mont &c.  R.  Co.  V.  Whalen,  11 
Nebr.  585,  10  N.  W.  491;  Allaire 
V.  Woonsocket,  25  R.  1.  414.  56 
Atl.  262,  263  (citing  Elliott  Roads 
and  Sts.,  §  275);  East  Tennessee 
&c.  R.  Co.  V.  Love,  3  Head  (Tenn.) 
62>\  James  River  &c.  Co.  v.  Turner. 
9  Leigh   (Va.)  313;  Railroad  Com- 


§  1251 


RAILR(JADS 


822 


ages.'*'  There  are  now  few  if  any  jurisdictions  in  which  it  is  held 
that  in  no  case  can  any  benefits  be  set  off  or  considered. 

§  1251  (989).  Benefits — General  and  special. — As  indicated 
in  the  preceding  section  there  is  much  conflict  of  opinion  upon 
the  subject  of  allowing  a  deduction  of  benefits,  and  there  are 
cases  which  deny  that  there  is  a  distinction  between  general  and 
special  benefits.  We  think  there  is  a  clear  distinction  between 
the  two  kinds  of  l^enefits  and  that  the  distinction  rests  upon  an 
essential  diflferencc  in  the  two  classes  of  cases.  Where  the  con- 
struction of  a  railroad  adds  increased  value  to  the  land  of  an 
indi\ichial  different  in  its  nature  from  the  benefit  to  the  general 
community  he  receives  a  special  benefit  which  lessens  his  injury 
or  loss,  so  that  he  really  sustains  no  injury  or  loss  except  that 
which  is  above  and  beyond  the  amount  of  the  peculiar  benefit 
which  the  construction  of  the  railroad  confers  upon  him  by  en- 
hancing the  value  of  that  part  of  his  land  which  is  not  appropri- 
ated. But  where  the  land-owner  reaps  no  advantage  peculiar  to 
himself  but  only  such  as  is  shared  by  the  community  at  large, 


pany  v.  Tyree,  7  W.  Va.  693;  Rail- 
road Co.  V.  Foreman,  24  W.  Va. 
662;  Robbins  v.  Milwaukee  &c.  R. 
Co.,  6  Wis.  636;  Driver  v.  Western 
Union  R.  Co.,  32  Wis.  569,  14  Am. 
Rep.  726;  Washburn  v.  Milwaukee 
&c.  R.  Co.,  59  Wis.  364,  18  N.  W. 
328. 

•''•'  Laflin  v.  Chicago  &c.  R.  Co.. 
33  Fed.  415:  Pueblo  &c.  R.  Co.  v. 
Rudd.  5  Colo.  270,  10  Am.  &  Eng. 
R.  Cas.  404;  Chicago  &c.  R.  Co.  v. 
Elake.  116  111.  163,  4  N.  E.  488,  23 
.\m.  &  Eng.  Cas.  97;  West  Side 
El.  R.  Co.  V.  Stickney,  150  111.  362, 
37  N.  E.  1098.  26  L.  R.  A.  773: 
Eurk  V.  Simonson,  104  Ind.  173,  3 
N.  E.  826,  54  Am.  Rep.  304:  Lipes 
V.  Hand,  104  Ind.  503,  1  N.  E.  871. 
4  N.  E.  160;  Forsyth  v.  Wilcox. 
143  Ind.  144,  41  N.  E.  371;  Dono- 
van   V.   Springfield,   125   Mass.  371; 


Minnesota  &c.  R.  Co.  v.  Doran,  17 
:\Iinn.  188;  Arbrush  v.  Oakdale,  28 
Miun.  61,  9  N.  W.  30;  Morin  v.  St. 
Paul  &c.  R.  Co.,  30  Minn.  100,  14 
N.  W.  460;  Pacific  &c.  R.  Co.  v. 
Chrystal,  25  Mo.  544;  St.  Louis  &c. 
Co.  v.  Richardson,  45  Mo.  466;  Mis- 
souri &c.  R.  Co.  V.  Hays,  15  Nebr. 
224,  18  N.  W.  51;  Sullivan  v.  North 
Hudson  Co.  R.  Co.,  51  N.  J.  L.  518, 
18  At).  689;  Little  Miami  &c.  R. 
Co.  V.  Collctt,  6  Ohio  St.  182;  Pitts- 
bnrgli  &c.  R.  Co.  v.  McCloskey, 
110  Pa.  St.  436,  1  Atl.  555,  23  Am. 
c'v  Eng.  R.  Cas.  86;  Grafton  &c.  R. 
Co.  V.  Foreman,  24  W.  Va.  662,  20 
Am.  &  Eng.  R.  Cas.  215;  Elliott 
Roads  and  Streets  (3rd  ed.),  §  315; 
(quoted  in  Masters  v.  Portland,  24 
Ore.  161,  33  Pac.  540,  and  cited  in 
.Allaire  v.  Woonsocket,  25  R.  I. 
414,  56  Atl.  262,  263). 


^28 


COMFIONSATIOX    AND    DAM AdKS 


§1252 


tlu-re  is  reason  for  cxcludino-  the  l)enefits  from  consideration. 
Special  l)enefits  may  be  said  to  be  such  as  are  direct  and  peculiar 
to  llu-  land.  General  benefits  such  as  are  bestowed  upon  other 
lands  of  similar  character  and  situation  in  the  same  vicinity. ''' 

§  1252  (990).  Benefits  confined  to  parcel  or  tract  actually 
taken. — As  \vc  have  elsewhere  shown  damages  are  confined  to 
the  parcel  or  tract  of  which  part  is  taken, '"'^  and  upon  the  same 
principle  benefits  must  be  confined  to  the  tract  or  parcel  of  which 


.-.7  Page  V.  Chicago  &c.  R.  Co., 
70  111.  324:  Lipcs  v.  Hand,  104  Ind. 
503.  1  N.  E.  871,  4  N.  E.  160;  Pot- 
tawatomie Co.  V.  O'Sullivan,  17 
Kans.  58;  Roberts  v.  Commission- 
ers, 21  Kans.  247;  Whiteman  v. 
Boston  &c.  R.  Co.,  3  Allen  (Mass.) 
133;  Stattuck  v.  Stoneham  &c.  R. 
Co.,  6  Allen  (Mass.)  115;  Childs 
V.  New  Haven  &c.  R.  Co.,  133 
Mass.  253;  Minnesota  &c.  R.  Co. 
V.  IMcNamara,  13  Minn.  508;  Wyan- 
dotte &c.  R.  Co.  V.  Waldo,  70  Mo. 
629;  Pittsburgh  &c.  Co.  v.  Robin- 
son, 95  Pa.  St.  426;  Washburn  v. 
Milwaukee  &c.  R.  Co.,  59  Wis.  364, 
18  N.  W.  328;  Elliott  Roads  and 
.Streets  (3d  ed.),  §  277.  See  gen- 
erally Donovan  v.  Springfield,  125 
:\rass.  371;  Hayes  v.  Ottawa  &c.  R. 
Co..  54  Til.  ?>72,\  Carroll  v.  Muncie 
&e.  R.  Co.,  38  Ind.  App.  700,  78  N. 
E.  254;  Brown  v.  Providence  &c.  R. 
Co..  5  dray  (Mass.)  35;  Farrar  v. 
-Midland  Electric  R.  Co..  101  Mo. 
App.  140,  74  S.  W.  500;  St.  Louis 
(S:c.  R.  Co.  V.  Continental  Brick  Co., 
198  Mo.  698,  96  S.  W.  1011;  South- 
port  &c.  R.  Co.  V.  Owners  of  Piatt 
Land.  133  N.  Car.  266.  45  S.  E. 
589;  Guthrie  &c.  R.  Co.  v.  Faulk- 
ner, 12  Okla.  532,  72,  Pac.  290;  Shi- 
nier V.  Eastern  &c.  R.  Co.,  205  Pa. 
St.  648,  55  Atl.  769;  Eastern  Te.xas 


R.  Co.  V.  Eddings,  30  Te.x.  Civ. 
A-.i).  170.  70  S.  W.  98;  Pochila  v. 
Calvert  &c.  R.  Co..  31  Tex.  Civ. 
App.  398,  72  S.  W.  255.  But  com- 
l)arc  Sloan  v.  Railroad  Co.,  137  N. 
Y.  595,  Zi  N.  E.  335;  Saxton  v. 
Railroad  Co.,  139  N.  Y.  320,  34  N. 
E.  728.  The  erection  of  a  depot  in 
the  vicinity  can  not  be  regarded 
as  having  especially  benefited  the 
property,  so  as  to  offset  the  dam- 
ages, where  the  benefit  caused  by 
the  building  of  the  depot  has  af- 
fected alike  all  property  located  in 
•its  neighborhood.  Pochila  v.  Cal- 
vert &c.  R.  Co.,  31  Tex.  Civ.  App. 
398,  72  S.  W.  255.  See  also  Buck- 
hannon  &c.  R.  Co.  v.  Great  Scott 
Coal  &c.  Co.,  75  W.  Va.  423,  83 
S.  E.  1031. 

^^  St.  Louis  &c.  R.  Co.  V.  Brown, 
58  111.  61;  Ham  v.  Wisconsin  &c. 
R.  Co.,  61  Iowa  716,  17  N.  W.  157: 
Kansas  City  &c.  R.  Co.  v.  Merrill. 
25  Kans.  421 :  Meacham  v.  Fitch- 
burg  R.  Co.,  4  Cush.  (Mass.")  291: 
Lexington  v.  Long,  31  Mo,  369; 
New  York  &c.  R.  Co.  v.  LeFevre. 
27  Hun  (N.  Y.)  537;  Philadelphia 
&c.  R.  Co.  V.  Gilson,  8  Watts  (Pa.) 
243;  Paducah  &c.  R.  Co.  v.  Stovall, 
12  Heisk.  (Tenn.)  1;  Buffalo  Bayou 
&c.  R.  Co.  V.  Ferris.  26  Tex.  588; 
Welch  V.  :\rilwaukee  &c.  R.  Co..  27 


§  1253  KAILKOADS  824 

part  is  actually  appropriated."'^  That  benefit  to  separate  and  dis- 
tinct lots,  parcels  or  tracts  can  not  be  considered  in  estimating" 
the  benefits  is  well  settled,  but  A\hat  shall  be  considered  part  of 
the  tract  or  parcel  seized,  it  is  sometimes  difficult  to  determine. 
We  suppose,  however,  that  no  general  rule  can  be  laid  down 
which  will  justly  apply  to  all  cases,  but  that  in  most  instances 
the  question  is  one  of  fact  to  be  determined  from  the  evidence  in 
the  particular  case.*'" 

§  1253  (990a).  Benefits  from  abandonment  of  an  existing  line 
across  premises. — The  question  as  to  the  right  of  a  railroad  com- 
pany to  apply  benefits  arose  in  a  case  where  a  railroad  company 
on  constructing  a  line  across  a  land-owner's  premises  abandoned 
its  old  line  across  the  same  premises  but  remote  from  the  new 
location.  The  railroad  company  contended  that  it  was  entitled 
to  ha\c  any  benefit  from  the  abandonment  of  the  old  line  set  off 
against  the  damage  done  the  land  adjoining  the  new  line.  The 
conclusion  reached — and  it  seems  a  proper  one  in  a  case  where 
the  old  line  was  entirely  outside  of  the  zone  of  damage  caused 
by  the  construction  of  the  new  line  and  where  the  railroad  com- 
pany was  not  compelled  to  relinquish  its  title  to  the  old  right  of 
way  on  ac(|uiring  title  to  the  new — was,  that  the  railroad  com- 
pany could  only  offset  the  benefits  which  directly  afifected  the 
land  adjacent  to  the  new  right  of  way.*^^ 

Wis.  108;  post,  §  1257.    A  personal  See  also   Cameron  v.   Chicago  &c. 

benefit   to   the   owner,    such  as   his  R.  Co.,  42  Minn.  75,  43  N.  W.  785; 

profits   from  tlie   sale   of   materials  Farrar    v.    Midland    Elec.    R.    Co., 

to   the   company,   is   not  to   be  de-  101    Mo.   App.    140,    74   S.   W.    500: 

ducted    from    the    damages    to    the  Evansville  &c.  R.  Co.  v.  Charlton, 

land.     Minnesota  &c.  R.  Co.  v.  Do-  6  Ind.  App.  56,  33  N.  E.  129. 

ran,  17  Minn.   188.  «"  See  Pittsburgh  &c.  Ry.  Co.  v. 

■'^  Pittsburgh  &c.  R.  Co.  v.  Reich,  Crockett,   182   Ind.   490,    106   N.    E. 

10   111.   157:    Cleveland   &c.    R.    Co.  875:   Hoyt  v.   Chicago  &c.   R.   Co., 

V.    Ball,   5    Ohio   St.   568;    Portland  117  Iowa  296,  90  N.  W.  724;  Koss- 

&c.    City    Ry.    Co.    v.    Sanders,    86  Icr    v.    Pittsburgh    &c.    R.    Co.,   208 

Ore.    62,    167    Pac.    564:    Louisville  Pa.  St.  50,  57  Atl.  66. 

&c.   R.   Co.  V.   Glazel^rook.    1    Push  "^  Oregon  &c.  R.  Co.  v.  Fox,  28 

(Ky.)  325;  White  Water  Valley  R.  L'tah   311.  78  Pac.  800.  citing  Chi- 

Co.   V.   McClure,  29   Ind.   536,   and  cago  &  E.  R.  Co.  v.  Blake,  116  III. 

authorities  cited  in  last  note,  supra.  163.  4  N.  E.  488;  Meacham  v.  Fitch- 


825 


COMPENSATION    AND    DAMACKS 


§  1254 


§  1254  (991).  Remote  or  conjectural  damages  can  not  be  al- 
lowed.—  Keniute  and  fanciful  injuries,  which  rest  wholly  in  con- 
jecture, and  do  not  admit  of  an  estimate  in  damages,  can  not 
be  proven  as  elements  of  damage  for  which  compensation  is  to 
1h'  made."-  Thus  an  interference  with  the  quiet  and  privacy  of 
the  plaintiff's  premises  by  the  construction  of  a  railroad  over- 
looking them,®-^  or  by  bringing  crowds  of  visitors  into  his  neigh- 
borhood,®* is  not  an  injury  for  which  he  can  claim  compensation. 
Neither  is  an  injury  to  the  plaintiff's  business  residting  from 
competition  induced  l)y  the  improvement,*^^  nor  the  liability  of 
horses  used  on  plaintiff's  farm  to  take  fright  from  passing 
trains.'"'  nor  the  danger  to  the  owner  of  the  premises  or  others 


burx  R.  Co.,  4  Cush.  (Mass.)  291; 
Winona  &c.  R.  Co.  v.  Waldron,  11 
Minn.  515  (Gil.  392),  83  Am.  Dec. 
100:  Chicago  &c.  R.  Co.  v.  Wiebe, 
25  Xebr.  542,  41  N.  W.  297;  Little 
Miami  R.  Co.  v.  Collet,  6  Ohio  St. 
182. 

62  Atlantic  &c.  R.  Co.  v.  Postal 
&c.  Tel.  Co.,  120  Ga.  268,  48  S.  E. 
15:  Spohr  v.  Chicago,  206  111.  441. 
69  N.  E.  515;  St.  Louis  &c.  R.  Co. 
V.  Knapp,  160  Mo.  396,  61  S.  W. 
300;  Conness  v.  Indiana  &c.  R.  Co., 
193  111.  464,  62  N.  E.  221;  Indian- 
apolis &c.  Trac.  Co.  v.  Larrabee, 
168  Ind.  237,  80  N.  E.  413  (citing 
text).  See  also  Richmond  &c.  R. 
Co.  V.  Seaboard  &c.  R.  Co.,  103  Va. 
399.  49  S.  E.  512;  Chicago  &c.  R. 
Co.  V.  Alexander,  47  Wash.  131.  91 
Pac.  626  and  authorities  cited  in 
following  notes. 

63  Penny,  In  re,  7  El.  &  Bl.  660. 
An  award  of  damages  for  the  pos- 
sible exercise  by  the  company  of  a 
right  to  cut  down  trees  on  either 
side  of  the  road  can  not  be  sus- 
tained. Such  right  should  be  con- 
sidered only  so  far  as  it  affects 
the    present    market    value    of    the 


land.  Ontario  &c.  R.  Co.,  In  re, 
6  Ont.  338.  See  Pittsburgh  &c.  R. 
Co.  v.  :*IcCloskey,  110  Pa.  St.  436. 
1   Atl.  555. 

6*  First  Parish  of  Woburn  v. 
Middlesex.  7  Gray  (Mass.)  106; 
Patten  v.  Northern  Cent.  R.  Co., 
33  Pa.  St.  426,  75  Am.  Dec.  612. 

•'■''  Petition  of  Mount  Washington 
Road  Co.,  35  N.  H.  134;  Adden  v. 
White  Mts.  R.  Co..  55  N.  H.  413, 
20  Am.  Rep.  220;  Harvey  v.  Lack- 
awanna &c.  R.  Co.,  47  Pa.  St.  428. 

66  Atchison  &c.  R.  Co.  v.  Lyon, 
24  Kans.  745;  Chicago  &c.  R.  Co. 
V.  Mason,  26  Ind.  App.  395,  59  N. 
E.  185,  186  (quoting  text);  Indian- 
apolis &c.  Trac.  Co.  v.  Larrabee, 
168  Ind.  237,  80  N.  E.  413  (but  cut- 
ting field  so  as  to  make  it  incon- 
venient to  water  stock  and  get  to 
certain  parts  are  elements  of  dam- 
age to  be  considered).  In  Woos- 
ter  V.  Sugar  River  &c.  R.  Co.,  57 
Wis.  311,  15  N.  W.  401.  the  court 
held  that  a  witness  could  properly 
testify  as  to  the  effect  upon  the 
market  value  of  the  property  due 
to  the  probability  or  possibility 
that  horses  might  be  frightened  or 


^  1255  RAILROADS  826 

in  crossing  and  rccrossing  the  proposed  tracks."*  and  tlif  in- 
creased risk  of  orchards  throngh  w  hich  a  railroad  is  huilt  l)y  rea- 
son of  leaving"  them  more  free  to  access  of  thieves  is  so  remote 
and  s])eculative  an  element  of  damages  as  not  to  be  entitled  to 
consideration  hy  the  jury.'''' 

§  1255  (991a).  Remote,  sentimental  or  conjectural  damages 
continued. — Under  the  rule  of  the  foregoing  section  it  has  ])een 
lield  that  a  land-owner  is  not  entitled  to  compensation  for  incon- 
venience, injury  to  his  business,  loss  of  ])rofits.  damage  to  per- 
sonal property,  or  the  expense  of  removing  it.'"  So  where  the 
property  selected  for  a  depot  was  shown  to  have  a  market  valtie 
capable  of  ascertainment,  jt  was  held  that  its  sentimental  value 
as  an  old  homestead  was  not  to  be  considered  by  the  jury.'^^  It 
has  also  been  held  that  the  jury  may  not  consider  the  fact  that 
the  land  sought  to  be  condemned  was  available  for  a  public  park 
and  that  the  owner  intended  to  improve  the  same  for  that  pur- 
pose and  use  it  as  a  source  of  revenue  in  connection  with  an 
electric  railway.'^  In  another  case  it  was  found  necessary  to  de- 
cide that  the  fact  that  the  person  holding  title  to  property  sought 
to  be  condemned  has  formulated  a  great  plan  for  the  upbuilding 
and  salvation  of  the  people,  and  professes  to  believe  with  his 
followers,  that  by  the  intervention  of  Divine  Providence  the 
property  is  rendered  unusually  valuable  as  a  place  of  residence 
for  his  followers,  does  not  impress  the  property  with  an  increased 
Aalue  that  must  be  recognized  when  a  part  of  it  is  demanded  in 


fire  communicated  by  passing  loco-  ^^  Kansas     City    &c.    R.     Co.    v. 

motives     and     trains.       Snyder     v.  Kregelo,  32  Kans.  608,  5  Pac.  58. 

Western  Union  R.  Co.,  25  Wis.  60;  '"  St.  Louis  &c.  R.  Co.  v.  Knapp 

Hutchinson  v.  Chicago  &c.  R.  Co.,  Stout  &  Co.,  160  Mo.  396,  61  S.  W. 

37  Wis.  582,  41  Wis.  541.     But  see  300.     Sec  also  Buckhannon  &c.  R. 

Illinois  &c.  R.  Co.  v.  Freeman,  210  Co.  v.  Great  Scott  Coal  Co.,  75  W. 

111.   270,    71    N.    E.    444;    Swain    v.  Va.  423,  83  S.  E.  1031. 

Boston   El.  R.   Co.,   188  ^lass.  405,  •'  Cane    Belt    R.    Co.   v.    Hughes. 

74  N.  E.  672.  31    Tex.    Civ.    App.    565,   72    S.   W. 

«8  Illinois  &c.  R.  Co.  v.  Freeman,  1020. 

210  111.  270,  71   N.  E.  444;  Chicago  "2  Richmond   &c.   R.    Co.  v.  Sea- 

c*tc.    R.    Co.    V.    Alawman,    206    111.  board   &c.    R.   Co.,   103   Va.  399,  49 

182.  69  N.  E.  66.  S.  E.  512. 


S27  coMr-EXSATiox    \xi)  lA.M  \(;ks  §  12r)6 

condenination  proceedings,  but  the  property  is  to  be  measured 
as  other  property  owned  by  other  people  in  the  same  vicinity  and 
similarly  situated."^ 

§  1256  (991b).  Remote  and  speculative  damages — Possibility 
of  negligence  in  construction  or  operation  of  road. — The  increase 
in  the  risk  of  loss  to  the  owner  of  premises  from  fire,  if  any,  may 
usually  be  considered  only  so  far  as  it  effects  a  depreciation  in 
the  market  value  of  the  property  not  taken.  The  likelihood 
of  damage  from  loss  by  fire  which  may  result  from  negligence 
of  the  railroad  company  is  generally  deemed  too  remote  and  spec- 
ulative to  be  considered  in  condemnation  proceedings,  for  the 
law  neither  presumes  nor  anticipates  negligence.'^*  "The  distinc- 
tion is  this."  says  the  Supreme  Court  of  Illinois:  "It  is  proper 
iov  the  jurv  to  consider  the  increased  risk  of  loss  from  fire  and 
the  increased  danger  to  live  stock  if.  and  in  so  far  as,  the  market 
value  of  land  not  taken  is  thereby  depreciated  ;  but  it  is  not 
proper  for  the  jury  to  anticipate  damages  of  any  character  which 
may.  but  will  not  certainly,  result  from  the  operation  of  the  rail- 
road and  allow  anything  by  their  verdict  for  such  anticipated 
damages.  Damages  which  may  in  the  future  follow  upon  the 
happening  of  some  possible,  but  uncertain,  event,  are  not  for 
their  consideration.  Whether  the  value  of  the  land  not  taken 
will  be  depreciated  in  the  market  by  increased  danger  from  fire 
or  bv  increased  danger  to  live  stock  is  for  their  consideration.'*'^ 
The  rule  is  the  same  as  to  the  likelihood  of  damage  from  the  neg- 

73  Dowie  V.  Chicago  &c.  R.  Co.,  the  same  question  as  to  whether 
214  111.  49,  73  N.  E.  354.  danger  from  fire  in  the  proper  op- 

74  Chicago  &c.  R.  Co.  v.  Nolin.  eration  of  the  road  is  an  element 
221  111.  367.  77  N.  E.  435;  St.  Louis  of  damages,  especially  if  it  already 
Belt  &c.  R.  Co.  V.  :Mendonsa,  193  depreciated  the  value  of  the  prop- 
Mo.    518.   91    S.   W.    65;    St.    Louis  crty. 

&c.    R.    Co.    v.    Continental    Brick  '■"'  Chicago    &c.    R.    Co.   v.    Nolin, 

Co..   198   Mo.  698,   96   S.  W.   1011:  221  111.  367.  77  N.  E.  435:  St.  Louis 

Illinois  &c.  R.  Co.  v.  Freeman.  210  &c.  R.  Co.  v.  Oliver,  17  Okla.  589, 

III.  270,  71    N.   E.  444:   Conness  v.  87  Pac.  423.     See  also  Indianapolis 

Indiana  &c.  R.  Co.,  193  HI.  464,  62  &c.  Trac.  Co.  v.  Larrabee,  168  Ind. 

N.   E.  221.     But   see  post,  §   1262.  237.  80  X.  E.  413. 
It  will  be  observed  that  this  is  not 


§  1257 


RAILROADS 


828 


ligent  construction  or  operation  of  the  railroad.'"  Thus  the  jury 
should  not  take  into  account  the  danger  to  which  stock  belonging- 
to  the  land-owner  might  be  exposed  by  reason  of  the  negligent 
operation  of  a  railroad,  esj^ecially  as  the  statutes  com])cl  rail- 
roads to  fence  their  tracks,  and  create  remedies  to  the  adjacent 
land-owners  for  injuries  to  stock  caused  by  a  failure  to  observe 
these  statutes.'' 

§  1257  (992).  Damages  confined  to  particular  tract. — The 
comi)ensation  is  awarded  only  for  damages  to  the  partigiTlar 
tract  of  land  of  wdiich  a  part  is  taken.'-  or  to  land  which  is  used 
in  connection  with  and  as  a  part  of  that  tract. ^^  Thus,  the  owner 
of  a  mill,  no  part  of  which  is  taken,  can  not  recover  for  damages 


76  Cliicago  &c.  R.  Co.  v.  Nolin, 
221  111.  367,  n  N.  E.  435;  Montana 
R.  Co.  V.  Freescr,  29  Mont.  210,  74 
Pac.  407. 

^■7  Conness  v.  Indiana  &c.  R.  Co., 
193  111.  464,  62  N.  E.  221.  See  also 
Indianapolis  Ry.  Co.  v.  Bransor, 
172  Ind.  383,  388.  86  N.  E.  834.  836 
(citing  text). 

78  St.  Louis  &c.  R.  Co.  V.  Brown. 
58  111.  61:  Chicago  &c.  R.  Co.  v. 
Kelly,  221  III.  498,  11  N.  E.  916; 
Union  Traction  Co.  v.  Pfeil.  39  Ind. 
App.  51,  78  N.  E.  1052;  Fleming  v. 
Chicago  &c.  R.  Co.,  34  Iowa  353: 
Lough  V.  Minneapolis  &c.  R.  Co., 
116  Iowa  31,  89  N.  W.  11;  Bangor 
&c.  R.  Co.  V.  McComb,  60  Maine 
290;  Meacham  v.  Fitchburg  R.  Co., 
4  Cush.  (Mass.)  291:  Minnesota 
Valley  R.  Co.  v.  Doran,  15  Minn. 
230:  St.  Paul  &c.  R.  Co.  v.  Mur- 
phy, 19  Minn.  500:  Sherwood  v. 
St.  Paul  &c.  R.  Co.,  21  Minn.  127; 
Lexington  v.  Long,  31  Mo.  36*^: 
Matter  of  New  York  Cent.  &c.  R. 
Co.,  6  Hun  (N.  Y.)  149;  Paducah 
&c.  R.  Co.  V.  Stovall,  12  Heisk. 
(Tenn.)     1.       So   'held    where    the 


tracts  were  divided  by  the  right  of 
way  of  another  railroad.  Kansas 
City  &c.  Ry.  Co.  v.  Littler,  70 
Kans.  556,  79  Pac.  114. 

79  Renwick  v.  Davenport  &c.  R. 
Co.,  49  Iowa  664,  affirmed,  Daven- 
port &c.  R.  Co.  V.  Renwick,  102 
U.  S.  180.  26  L.  ed.  51;  Driver  v. 
Western  Union  R.  Co.,  32  Wis. 
569.  14  Am.  Rep.  726;  Robbins  v. 
Milwaukee  &c.  R.  Co.,  6  Wis.  did. 
Compare  Buckhannon  &c.  R.  Co, 
V.  Great  Scott  Coal  Co.,  75  W.  Va. 
423.  83  S.  E.  1031.  The  fact  that 
the  land  is  divided  by  a  highway 
or  otherwise  into  two  or  more  lots. 
does  not  prevent  the  award  of 
damages  for  injuries  to  it  as  an 
entirety,  if  the  several  parts  are 
still  used  together  for  a  common 
purpose.  Keithsburg  &c.  R.  Co. 
v.  Henry,  79  111.  290.  See  also 
Chicago  &c.  R.  Co.  v.  Dresel,  110 
111.  89;  Cummins  v.  Des  Moines 
&c.  R.  Co.,  63  Iowa  397,  19  N.  W. 
268:  Haggard  v.  .Mgona  School 
Dist..  113  Iowa  486,  85  N.  W.  111. 
Where  land  within  a  village,  and 
adjoining  farm   land  arc  owned  by 


829 


COMPENSATION    AND    DAMAGES 


§1257 


inflicted  upon  it  by  the  construction  of  a  railroad,  in  a  proceedinj? 
by  the  railroad  to  condemn  another  and  distinct  tract  of  land  at 
some  distance  from  the  mill.""  And  where  several  vijja^e^jots 
are  merely  held  for  sale  or  use  as  building  lots,*^  or  are  per- 
mitted to  lie  entirely  idle  and  unoccupied,-^  injuries  to  the  lots 
not  taken  can  not  be  considered  in  assessing  damages.  So.  if  a 
man  owns  two  adjoining  farms,  one  of  which  he  occupies  while 
he  rents  the  other,  the  assessment  of  damages  must  be  confined 
to  the  farm  of  which  part  is  ta'ken.**'  And  similarly  where  a  per- 
son owned  a  tract  of  land,  from  which  a  right  of  way  was  taken 
for  a  railroad,  and  also  the  remainder  after  a  life  estate  in  an 
undivided  half  of  an  adjacent  tract,  and  had  farmed  the  two 
tracts  as  one.  the  buildings  and  improvement  being  on  the  latter 
tract,  it  was  held  that  the  jury  could  not  take  into  account  the 


the  same  person,  but  lield  as  dis- 
tinct tracts  and  for  separate  uses, 
compensation  can  not  be  claimed 
for  injuries  to  the  farm  because  of 
its  separation  from  a  part  of  the 
village  property  b}^  the  line  of  a 
railroad.  Haines  v.  St.  Louis  &c. 
R.  Co.,  65  Iowa  216,  21  N.  W.  573. 

so  Selma  &c.  R.  Co.  v.  Camp,  45 
Ga.  180.  But  where  the  property 
is  used  together  for  a  common  pur- 
pose the  fact  that  different  parts 
lie  some  distance  from  each  other 
will  not  prevent  them  from  being 
considered  as  forming  a  single 
property.  Thus  the  owners  of  an 
ore  mine  and  a  railroad  four  or 
five  miles  long  connecting  the  mine 
with  a  railroad  are  entitled,  upon 
condemnation  of  a  part  of  their 
line  of  road  for  railroad  purposes, 
to  damage  to  the  whole  property, 
including  the  ore  mine.  Pough- 
keepsie  &c.  R.  Co..  Matter  of,  63 
Barb.  (N.  Y.)   151. 

81  Pittsburgh  &c.  R.  Co.  v.  Reich. 
101  111.  157.  See  also  Fleming  v. 
Chicago  &c.   R.  Co.,  34  Iowa  353; 


Gorgas  v.  Philadelphia  &c.  R.  Co., 
215  Pa.  501.  64  Atl.  680. 

82  Wilcox  V.  St.  Paul  &c.  R.  Co., 
,35   Minn.  439,  29  N.  W.  148. 

'•■■•  Minnesota  Valley  R.  Co.  v. 
Doran.  15  Minn.  230.  See  also 
Sharpe  v.  United  States,  112  Fed. 
893.  57  h.  R.  A.  932.  affirmed  in 
191  U.  S.  341,  24  Sup.  Ct.  114.  48 
L.  ed.  211.  But  the  jury  are  enti- 
tled to  pass  upon  the  question 
whether  two  tracts  of  land  consti- 
tute a  single  farm,  even  though 
tliey  are  separated  by  a  public 
highway,  and  one  has  been  rented 
for  two  years  preceding  the  con- 
demnation. St.  Paul  &c.  R.  Co. 
V.  :\rurphy.  19  Minn.  500.  Where  a 
man  owned  two  tracts  of  land  as 
designated  on  the  government  sur- 
vey, both  of  which  constituted  one 
farm,  and  released  the  right  of  way 
through  one  tract,  it  was  held  that 
he  could  not  afterward  recover  for 
damages  done  to  that  tract  by  con- 
demning a  right  of  way  across  the 
remainder  of  the  farm.  St.  Louis 
&c.  R.  Co.  V.  Brown,  58  111.  61.   But 


v^  1257  RAILROADS  830 

fact  that  the  right  of  way  Avill  divide  the  two  interests  of  such 
person  in  the  tracts,  but  should  consider  each  interest  separately, 
since  tlu-  interest  in  the  two  tracts  were  distinct  at  law.^^'  But 
all  the  land  owned  and  used  as  one  farm  must  be  considered  as  a 
single  tract,  although  it  is  divided  by  a  highway ,'*-^  or  canal.^"  or 
lies  in  two  or  more  counties.^'  It  will  not  be  regarded  as  a 
single  body  where  lands  intervene  across  which  the  owner  has 
no  right  of  ])assage — as  for  example  the  right  of  way  of  another 
railroad, ^^'-  or  the  detached  land  is  an  island  in  a  river.®"  Where 
the  se])arate  owners  of  three  quarter  sections  of  land  operated 
them  jointly  as  a  single  stock  farm  under  a  contract  by  which 
water  for  the  whole  farm  was  furnished  by  the  owner  of  the 
(juarter  section  on  which  water  was  found,  it  was  held  that  in  as- 
sessment of  damages  for  the  location  of  a  highway  across  the 
farm,  such  owner  was  entitled  to  damages  for  the  interference 
with  his  rights  under  the  contract.""  Where  two  or  more  con- 
tiguous village  lots  are  used  together  for  a  common  purpose,  they 
may  be  held  to  form  a  single  tract.  Thus,  where  land  was  sub- 
'divided  into  blocks  or  lots,  but  the  lots  were  not  sold  and   the 

it   is    difficult  to   see   why   a   man's  &c.    R.    Co.   v.    Henry,   79    111.   290; 

willingness  to  have  a  railroad  built  Chicago   &c.    R.    Co.   v.    Huncheon. 

across  one  part  of  his  farm  should  130  Tnd.  529,  30  N.  E.  636. 

prevent  him  from  recovering  dam-  ®®  Kansas  City  &c.  R.  Co.  v.  Lit- 

ages    for    the    road    where    he    did  tier,  70  Kans.  556,  79  Pac.  114. 

not  want  it  ])uilt.  ''^  St.    Louis    &c.    R.    Co.    v.    Au- 

s^Conness  v.  Indiana  &c.  R.  Co,,  huchon,  199  Mo.  352,  97  S.  W.  867. 

193  111.  464,  62  N.  E.  221.  :"' Commissioners    v.    Lahore,    37 

s-'  Hartshorn    v.    Burlington    &c.  Kans.  480,  15  Pac.  577.     Numerous 

R.  Co.,  52  Iowa  613;  Ham  v.  Wis-  cases  have  held  that  a  single  farm 

consin  &c.  R.  Co.,  61   Iowa  716,  17  may  consist  of  several  subdivisions 

N.  W.  157:  Kansas  City  &c.  R.  Co.  as  laid  out  in  the  government  sur- 

V.  Merrill,  25  Kans.  421;  New  York  vey.      Wyandotte    &c.    R.    Co.    v. 

&c.  R.  Co.  Matter  of  v.  Le  Fevre,  Waldo,  70  Mo.  629;   Cedar   Rapids 

27   Hun    (N.  Y.)   537;   State  v.   .Su-  &c.    R.    Co.  v.   Ryan,  iJ   Minn."  38. 

perior  Court,  44  Wash.  108,  87  Pac.  ii  N.  W.  6:  Wilmes  v.  Minneapo- 

40:  Welch  v.  Milwaukee  &c.  R.  Co.  lis    &c.    R.    Co.,    29    Minn.    242,    13 

27  Wis.   108.  N.  W.  39:   Ham  v.  Wisconsin  &c. 

8fi  Boston  &c.  R.  Co.,  Matter  of,  R.  Co.,  61  Iowa  716,  17  N.  W.  157; 

31   Hun  (N.  Y.)  461.  Kansas  City  &c.  R.  Co.  v.  Merrill, 

87  Atchison  &c.  R.  Co.  v.  Gough.  25  Kans.  421. 
29  Kans.  94.     See  also  Keithsburg 


881 


COMPENSATION'    AND    DAMAGES 


§  1258 


land  continued  to  be  used  for  agricultural  purposes,  it  was  held 
that  damages  to  the  entire  piece  of  land  could  be  recovered  when 

but  a  part  of  tlu-  lots  were  taken. "^ 

§  1258  (993).  Injuries  to  part  of  tract  or  parcel  of  land  not 
actually  taken. — Where  part  only  of  a  tract  of  land  is  taken,  in- 
juries to  the  part  not  actually  taken  may  be  caused  by  the  con-  ^ 
struction  of  a  railroad,  and  where  there  are  such  special  injuries 
the  general  rule  is  that  the  property  owner  is  entitled  to  com- 
pensation."-    It  is  so  held  where  a  farm  is  divided  by  the  line  of 


^1  Sheldon  v.  Minneapolis  &c.  R. 
Co.,  29  Minn.  318,  13  N.  W.  134; 
Welch  V.  Milwaukee  &c.  R.  Co., 
27  Wis.  108.  See  also  Chicago  &c. 
R.  Co.  V.  Dresel,  110  111.  89;  Cum- 
mins V.  Des  Moines  &c.  R.  Co.,  63 
Iowa  397,  19  N.  W.  268;  Cox  v. 
Mason  City  &c.  R.  Co.,  11  Iowa 
20,  41  N.  W.  475;  Reisner  v.  Atch- 
ison &c.  Co.,  27  Kans.  382;  Koer- 
per  V.  St.  Paul  &c.  R.  Co.,  42  Minn. 
340,  44  N.  W.  195;  Gorgas  v.  Phil- 
adelphia &c.  R.  Co.,  215  Pa.  501,  64 
Atl.  680;  Munkwitz  v.  Chicago  &c. 
R.  Co..  64  Wis.  403,  25  N.  W.  438. 
But  the  burden  of  showing  that 
separately-  platted  and  numbered 
contiguous  lots  with  the  lots  taken 
constituted  a  single  tract  is  held 
tp-  be  upon  the  landowner.  Pitts- 
/^urgh  &c.  R.  Co.  V.  Crockett,  182 
^  Ind.  490.  106  N.  E.  875. 

"2  Pine  Bhiflf  &c.  R.  Co.  v.  Kelly. 
93  Ark.  562.  93  S.  W.  562;  Selina 
&c.  R.  Co.  V.  Keith,  53  Ga.  178: 
White  V.  Metropolitan  &c.  Co.,  154 
111.  620,  39  N.  E.  270;  Chicago  &c. 
R.  Co.  V.  Mawman,  206  111.  182,  69 
N.  E.  66;  Freiberg  v.  South  Side 
El.  R.  Co.,  221  111.  508.  11  N.  E. 
920;  Illinois  Central  R.  Co.  v.  Wolf, 
95  111.  .\pp.  74;  Indiana  Stone  R. 
Co.  V.  Strain,  27  Tnd.  App.  694,  62 


N.  E.  63;  White  v.  Cincinnati  &c. 
R.  Co.,  34  Ind.  App.  287,  71  N.  E. 
276;  Ferdinand  Co.  v.  Bretz,  47 
Ind.  App.  642,  94  N.  E.  1046;  Kuch- 
eman  v.  Chicago  &c.  R.  Co.,  46 
Iowa  366;  Louisiana  R.  &c.  Co.  v. 
Jones,  113  La.  Ann.  29,  Id  So.  877: 
Bangor  &c.  R.  Co.  v.  McComb,  60 
Maine  290:  Virginia  &c.  R.  Co.  v. 
Henry,  8  Nev.  165;  South  Bufifalo 
&c.  R.Co.  V.  Kirkover,  176  N.  Y. 
301,  68  N.  E.  2,(^6;  Pittsburgh  &c. 
R.  Co.  V.  Rose.  74  Pa.  St.  362: 
Baker  v.  Pennsylvania  R.  Co.,  236 
Pa.  St.  479,  84  Atl.  959.  See  also 
White's  Supp.  to  Thomp.  Corp., 
§  2755,  and  cases  there  cited.  As 
shown  by  these  authorities,  and 
others  that  might  be  cited,  the 
general  rule  is  that  the  owner  is 
entitled  to  compensation  not  only 
for  the  part  actually  taken  but  also 
for  damages  caused  to  the  remain- 
der of  the  tract.  Against  the  lat- 
Wr.  hmvevcr,  is  set  off  the  bene- 
fits, and.  in  most  jurisdictions  such 
benefits  may  be  set  off  as  against 
the  damages  both  for  what  is  ac- 
tuall}'  taken  and  for  the  injury  to 
the  rest  of  the  tract.  Tucker  v. 
Massachusetts  &c.  R.  Co..  118 
Mass.  546;  McReynolds  v.  Bur- 
lington &c.  R.  Co.,  106  111.  152.    In 


§1259 


RAILROADS 


832 


the  railroad,  or  where  cuts,  ditches  or  embankments  are  made 
upon  the  right  of  way  where  it  crosses  the  land.''^  But  it  is  to 
be  observed  that  for  remote  and  speculative  injuries  no  com- 
pensation can  be  awarded.^* 

§  1259   (994).     Elements  of  value. — The  ^eiiPi'-il  i'^''^"  i'^  that  a 

single  assessment  should  be  made  covering  all  the  various  items 

of  damage. ^^  and  it  is  held  that  the  amount  of  this  assessment 

should  just  equal  the  difiference  between  the  market  value  of  the 

I       ])ropcrt_v.  after  the  improvement  is  made,  and  the  market  value 


this    latter    case,    it    was    held    that 
the    fact    that    evidence    as    to    the 
inconvenience  occasioned  by  a  rail- 
road track  which  divides  a  farm  is 
largel}^    conjectural    and    not    capa- 
ble   of   definite   ascertainment,   was 
not    a    reason    for    excluding    such 
evidence   from  the  jury.     The  jury 
are  entitled  to  know  how  the  line 
of   the    road    divides    the    farm,    in 
case  of  farm  lands,  as  to  the  loca- 
tion  of  water,  pasturage,   improve- 
ments,  etc..  and   also,   the   dangers 
and    inconveniences   in   the  perpet- 
ual use  of  the  track  for  the  move- 
ment  of  trains.      Rockford    &c.    R. 
Co.  v.   McKinley,  64  111.  338.     In- 
convenience  in    opening   gates   and 
bars  to  cross  the  railroad  may  be 
considered    by    the    jury.      Minne- 
sota &c.  R.  Co.  V.  Doran,  17  Minn. 
188.    So  may  the  inconvenience  and 
danger   of   frequently    crossing   the 
track  (in  this  case  as  often  as  one 
hundred    times    a    day)    in    hauling 
clay   from    one    part    of    the    plain- 
tiff's brickyard  to  another  part  that 
has    been   cut   off  by  the   railroad. 
Sherwood   v.   St.   Paul   &c.   R.   Co., 
21   Minn.  127.     See  Winona  R.  Co. 
V.  Waldron,   11   Minn.  515,  88  Am. 
Dec.  100  and  note.     Damage  to  re- 
mainder    of     the     tract     from     en- 


hanced danger  from  floods  because 
of  interference  with  escape  of  wa- 
ters is  a  proper  element  of  dam- 
ages. Colusa  &c.  R.  Co.  v.  Leon- 
ard. 176  Cal.  109,  167  Pac.  878. 

"••i  St.  Louis  &c.  R.  Co.  V.  Ander- 
son, .39  Ark.  167:  Chicago  &c.  R. 
Co.  V.  Hoffman  (Ind.  App.\  119 
N.  E.  169;  Atchison  &c.  R.  Co.  v. 
Blackshire.  10  Kans.  477;  Missouri 
Pacific  R.  Co.  v.  Hays,  15  Nebr. 
224.  18  N.  W.  51;  Wilmington  &c. 
R.  Co.  V.  Stauffer.  60  Pa.  St.  374. 
100  Am.  Dec.  574;  Pittsburgh  &c. 
R.  Co.  V.  Rose,  74  Pa.  St.  362.  See 
also  Red  River  &c.  Ry.  Co.  v. 
Hughes.  2,6  Tex.  Civ.  App.  472,  81 
S.  W.  1235;  Cook  v.  Boone  &c.  R. 
Co..  122  Iowa  437.  98  N.  W.  293. 
note  in  85  Am.  St.  312;  State  v. 
Superior  Court,  44  Wash.  108,  87 
Pac.  40;  .Arkansas  Val.  &c.  Ry.  Co. 
V.  Witt,  19  Okla.  262,  91  Pac.  897, 
13  L.  R.  A.  (N.  S.)  237,  and  addi- 
tional cases  there  cited  in  note. 

9*  East  &c.  R.  Co.  v.  Miller,  201 
111.  413,  66  N.  E.  275;  Indianapolis 
tS:c.  R.  Co.  V.  Hill,  172  Ind.  402,  86 
N.   E.  414,  416   (citing  text). 

95  Metropolitan  West  Side  El.  R. 
Co.  V.  Goll,  100  111.  App.  323:  Indi- 
anapolis &c.  R.  Co.  V.  Branson.  172 
Ind.  383,  86  N.  E.  834,  88  N.  E.  594. 


833 


COMl'lONyATIUN    AND    DAMAGES 


§  1259 


of  like  property  to  which  no  injury  has  been  done.""  or  the  difiFer- 
ence  Ijetween  the  market  vahie  of  the  entire  tract  and  the  market 
value  of  what  is  left.'''  In  one  jurisdiction  the  measure  of  dam- 
ages is  held  to  be  the  difference  between  the  market  value  of  the 
property  just  before  it  was  j^^enerally  known  that  the  work  was 
to  be  done,  and  the  market  value  after  the  completion   of  the 


°^  Henry  v.  Dubuque  &c.  R.  Co., 
2  Iowa  288;  Chicago  &c.  R.  Co.  v. 
Carey,  90  111.  514.  "The  inconve- 
nience arising  from  a  division  of 
the  property,  t)v  from  increased 
difficulty  of  access;  the  burden  of 
increased  fencing,  the  ordinary  dan- 
ger from  accidental  fires  to  the 
fences,  fields  or  farm  buildings,  not 
resulting  from  negligence,  and  gen- 
erally all  such  matters  as,  owing 
to  the  particular  location  of  the 
road,  may  eflfect  the  convenient  use 
and  future  enjoyment  of  the  prop- 
erty, are  proper  matters  for  con- 
sideration, but  they  are  to  be  con- 
sidered in  comparison  with  the 
advantages,  only  as  they  affect  the 
market  value  of  the  land.  The  jury 
can  not  include  in  the  verdict  a 
fund  to  cover  the  costs  of  fencing, 
or  to  provide  an  indemnity  against 
losses  by  fire,  or  casualties  to  the 
cattle  and  stock  upon  the  farm. 
Such  an  assessment  must  necessa- 
rily be  purelj^  speculative,  as  the 
matters,  thus  sought  to  be  pro- 
vided against,  are  in  their  nature 
altogether  ideal  and  fanciful.  A 
rearrangement  of  the  farm  may 
obviate  the  necessity  for  any  in- 
creased fencing;  its  future  occu- 
pancy may  be  such  as  to  require 
none;  casualties,  by  fire  or  other- 
wise, may  never  occur;  and,  there- 
lore,  the  injury  from  these  causes 
can  only  be  computed  as  they  af- 


fect the  market  value  of  the  land." 
Pitt.sburgh  &c.  R.  Co.  v.  AIcClos- 
key,  110  Pa.  St.  436,  1  Atl.  431.  The 
cost  of  erecting  such  buildings  as 
nre  upon  the  land  taken  is  not  an 
clement  of  damage  unless  it  is 
shown  that  tlicy  would  actually  in- 
crease the  value  of  the  preinises  to 
that  extent.  Jacksonville  &c.  R. 
Co.  V.  Walsh,  106  111.  253.  See  also 
Lough  V.  Minneapolis  &c.  R.  Co., 
116  Iowa  31.  89  N.  W.  77:  Daven- 
port &c.  R.  Co.  V.  Sinnet.  Ill  111. 
App.  75;  Illinois  Cent.  R.  Co.  v. 
Lockard.  112  111.  App.  423;  Illinois 
&c.  R.  Co.  V.  Easterbrook,  211  111. 
624,  71  N.  E.  1116;  Buffalo  &c.  R. 
Co.  V.  Sheeps,  102  N.  Y.  S.  214; 
Eastern  Texas  R.  Co.  v.  Eddings. 
30  Tex.  Civ.  App.  170,  70  S.  W.  98. 
Where  land  was  rendered  inaccess- 
ible by  the  construction  of  a  rail- 
road embankment,  etc.,  the  diflfer- 
ence  in  the  value  of  the  land  just 
before  and  just  after  the  construc- 
tion of  the  road  was  the  measure 
of  damages,  and  not  the  cost  of 
constructing  a  road  from  the  land 
to  existing  highways.  Red  River 
&c.  R.  Co.  V.  Hughes.  36  Tex.  Civ. 
App.  472.  81  S.  W.  1235. 

^'^  St.  Louis  &c.  R.  Co.  V.  Ander- 
son, 39  Ark.  167;  Eberhart  v.  Chi- 
cago &c.  R.  Co.,  70  111.  347;  Illinois 
Central  R.  Co.  v.  Turner,  194  111. 
575,  62  X.  E.  798;  Chicago  &c.  R. 
Co.  V.  Kelly,  221  111.  498,  77  N.  E. 


J)  1259 


IJAILKOADS 


834 


work.^*'     If  the  property  has  a  special  value  because  of  its  adap- 
tation for  railroad  purposes, °^  or  for  some  other  use  for  wliich 


916;  Freiberg  v.  South  Side  El.  R. 
Co.,  221  111.  508,  n  N.  E.  920;  In- 
diana &c.  R.  Co.  V.  Allen,  100  Ind. 
409;  Cleveland  &c.  R.  Co.  v.  Gar- 
man,  63  Ind.  App.  289,  109  N.  E. 
234,  112  N.  E.  411;  Lance  v.  Chi- 
cago &c.  R.  Co.,  57  Iowa  636,  11 
N.  W.  612;  Blue  Earth  Co.  v.  St. 
Paul  &c.  R.  Co.,  28  Minn.  503,  11 
N.  W.  12>\  Farrar  v.  Midland  Elec- 
tric R.  Co.,  101  Mo.  App.  140,  74 
S.  W.  500;  Omaha  &c.  R.  Co.  v. 
McDermott,  25  Nebr.  714,  41  N.  W. 
648;  Dearborn  v.  Boston  &c.  R. 
Co..  24  N.  H.  179;  Coatsworth  v. 
Lehigh  Valley  R.  Co.,  100  N.  Y.  S. 
504:  Hewitt  v.  Pittsburg  &c.  R.  Co., 
19  Pa.  Super.  Ct.  304;  William  H. 
Miiudy  Mfg.  Co.  A-.  Pennsylvania 
R.  Co.,  64  Pa.  St.  ?,1?>.  64  Atl.  ^12>\ 
Pennsylvania  &c.  R.  Co.  v.  Bun- 
nell, 81  Pa.  St.  414:  St.  Louis  &c. 
R.  Co.  V.  Hughes  (Tex.  Civ.  .Xpp.), 
11  S.  W.  976;  Parks  v.  Wisconsin 
Cent.  R.  Co.,  ZZ  Wis.  413:  notes  in 
5  Am.  St.  537-540.  88  Am.  Dec. 
113-121,  and  85  Am.  St.  293-314. 
See  also  for  recent  cases,  most  of 
them  stating  the  rule  in  like  or 
somewhat  similar  terms,  Alabama 
Cent.  R.  Co.  v.  ^lusgrove,  169  Ala. 
424,  53  So.  1009;  Kansas  City  So. 
R.  Co.  V.  Boles,  88  Ark.  533,  115 
S.  W.  375  (market  value  at  time 
petition  is  filed);  Stuttgart  &c.  R. 
Co.  V.  Kocourek,  101  Ark.  47,  141 
S.  W.  511;  In  re  City  of  ^Nleriden, 
88  Conn.  427,  91  Atl.  439  (in  view 
of  the  new  conditions  so  created) : 
Muncie  &c.  Trac.  Co.  v.  Citizens 
Gas  &c.  Co..  179  Ind.  Z12.  100  N.  E. 
65;  Cleveland  X:c.  K.  Co.  v.  Smith, 


177  Ind.  524.  97  X.  E.  164:  Louis- 
iana &c.  R.  Co.  V.  Sarpy,  125  La. 
388,  51  So.  433  (at  time  suit  is 
filed);  Beckman  v.  Lincoln  &c.  R. 
Co.,  85  Nebr.  228,  122  N.  W.  994, 
133  Am.  St.  655. 

"^  Louisville  &c.  R.  Co.  v.  Cum- 
nock, 25  Ky.  L.  1330,  n  S.  W.  933. 

•'^Johnson  v.  Freeport  &c.  R. 
Co.,  Ill  111.  413:  Little  Rock  &c. 
R.  Co.  V.  Woodruff,  49  Ark.  381, 
5  S.  W.  792,  4  Am.  St.  51.  But  see 
Boston  &c.  R.  Co.,  In  re,  22  Hun 
(N.  Y.)  176.  It  is  not  meant  that 
more  should  be  allowed  merely  be- 
cause of  the  particular  need  of  the 
railroad  company.  It  depends  on 
what  the  landowner  loses  rather 
than  on  the  benefit  to  the  con- 
demnor. Rawson  &c.  Lumber  Co. 
V.  Richardson,  '26  Idaho  Zl ,  141 
Pac.  74.  In  Union  Depot  St.  R. 
&c.  Co.  V.  Brunswick,  31  Minn.  297, 
17  N.  W.  626,  47  Am.  Rep.  789,  the 
court  says:  "Suppose  a  railroad 
was  intended  to  be  built  through 
some  canyon  or  mountain  pass,  the 
soil  of  which  was  of  little  or  no 
practical  value,  would  it  be  com- 
petent to  permit  the  owner  to  show 
that  it  furnished  the  only  possible 
route  for  the  road?  We  apprehend 
not.  These  are  extreme  cases,  but 
not  dififerent  in  principle  from  the 
one  under  consideration."  See  also 
Tracy  v.  Mt.  Pleasant,  165  Iowa 
435,  146  N.  W.  78;  Stinson  v.  Chi- 
cago &c.  R.  Co.,  27  Minn.  284,  6 
N.  W.  784;  Virginia  &c.  R.  Co.  v. 
Elliott,  5  Nev.  358.  Compare  Yazoo 
&c.  R.  Co.  V.  Longview  Sugar  Co., 
135   La.  Ann.  542,  65  So.  638. 


835 


COMPENSATION    AND    DAMAGES 


§  1259 


the  ])usincss  needs  of  the  neij^dihorliood  create  a  demand,'  or  if 
the  owner  has  adapted  the  land  to  use  in  connection  with  other 
property,  by  which  it  has  ac(piired  a  special  and  pecuHar  value, 
such  value  must  usually  be  taken  as  the  basis  in  assessing  dam- 
ages,- but.  as  elsewhere  suggested  the  special  \  .alue  must  be  real 
and  substantial,  not  fanciful  or  fictitious.  The  use  that  was 
made  by  the  owner  of  the  property  taken  may,  of  course,  be 
shown,  as  bearing  on  the  (piestion  of  his  damages;  and  the  bet- 
ter o])ini()n  is  that  its  adaptability  for  any  valuable  use  to  which 
a  reasonably  ])rudent  man  might  be  expected  to  devote  it  should 
also  be  considered,  so  far  as  this  affects  the  market  price. ••  The 
existing  business  and  wants  of  the  community,  and  such  as  may 
reasonably  be  expected  in  the  immediate  future,  should  be  taken 
into  account,  together  with  the  adaptability  of  the  property  to 


1  Boom  Co.  V.  Patterson,  98  U.  S. 
403.  25  L.  ed.  206. 

2  Little  Rock  &c.  R.  Co.  v. 
Woodruc,  49  Ark.  381,  5  S.  W.  792. 
4  Am.  St.  51;  St.  Louis  &c.  R.  Co. 
V.  Kirby,  104  111.  345  (training  track 
for  horses  on  a  stock  farm) ;  Chi- 
cago &c.  R.  Co.  V.  Chicago  &c.  R. 
Co..  112  111.  589  (landing  used  by 
a  railroad  company);  Dupuis  v. 
Chicago  &c.  R.  Co.,  115  111.  97,  3 
N.  E.  720;  Chicago  &c.  R.  Co.  v. 
Ward,  128  III.  350,  18  N.  E.  828,  21 
N.  E.  562;  Ohio  Valley  R.  Co.  v. 
Kerth,  130  Ind.  314,  30  N.  E.  298: 
Grand  Rapids  &c.  R.  Co.  v.  Wei- 
den.  70  Mich.  390,  38  N.  W.  294; 
King  V.  Minneapolis  Union  R.  Co., 
12  Minn.  224,  20  N.  W.  135;  Duluth 
&c.  R.  Co.  V.  West,  51  Minn.  163, 
53  N.  W.  197;  Beckett  v.  Midland 
R.  Co.,  L.  R.  3  C.  P.  82.  "The 
value  of  land  consists  in  its  fitness 
for  use,  present  or  future,  and  be- 
fore it  can  be  taken  for  public  use 
the  owner  must  have  just  compen- 
sation. If  lie  has  adopted  a  pecu- 
liar   mode    of    using    that    land    by 


wliicli  lie  derives  profit,  and  he  is 
to  be  deprived  of  that  use,  justice 
requires  he  should  be  compensated 
for  the  loss.  That  loss  is  the  loss 
to  himself.  It  is  the  value  which 
lie  has,  and  of  which  he  is  de- 
prived, which  must  be  made  good 
by  compensation."  St.  Louis  &c. 
R.  Co.  V.  Kirby,  104  III.  345.  Where 
a  person  owned  a  piece  of  ground 
used  as  a  stock  ranch  and  the  rail- 
road was  so  constructed  as  to  run 
diagonally  through  one  quarter  sec- 
tion, so  as  to  cut  off  the  water, 
timber,  house  and  corrals  from  the 
main  body  of  the  land,  the  owner 
was  held  entitled  to  recover  for 
the  injur}-  done  to  the  property, 
considered  as  a  whole,  and  not  for 
that  only  done  to  the  quarter  sec- 
tion over  which  the  road  was  built. 
Kansas  City  &c.  R.  Co.  v.  ^lerrill, 
25   Kans.  421. 

"  Montana  R.  Co.  v.  Warren,  137 
U.  S.  348,  11  Sup.  Ct.  96,  34  L.  ed. 
681;  Five  Tracts  of  Land  v.  United 
States,  101  Fed.  661;  Young  v.  Har- 
rison. 17  Ga.  30:  Harlam  v.  Galena 


§  1259 


RAILROADS 


836 


meet  those  wants.*  But  there  must  l)e  substantial  ^-rounds  on 
which  to  rest  an  expectation  of  future  advancement  in  tlie  vahie 
of  the  property,  and  conjecture  is  not  a  basis  for  an  award  of 
dama.i^es.  Where  it  was  shown  that  the  land  lay  in  the  edi^'e  of 
the  citv  of  St.  Paul,  and  near  certain  public  institutions,  it  was 
held  proper  to  prove  its  market  value  as  enhanced  b}'  its  adapt - 


&c.  R.  Co.,  64  111.  ,353;  Chicago  &c. 
R.  Co.  V.  Jacobs,  110  Til.  414:  West 
Virginia  &c.  R.  Co.  v.  Gibson,  94 
Ky.  234,  21  S.  W.  1055;  First  Par- 
ish V.  ^Middlesex,  7  Gray  (Mass.^ 
106;  Eastern  R.  Co.  v.  Boston  &c. 
R.  Co.,  Ill  Mass.  125.  15  Am.  Rep. 
13:  Drury  v.  Midland  R.  Co.,  127 
Mass.  571;  Colvill  v.  St.  Paul  &c. 
R.  Co.,  19  Minn.  283;  King  v.  Min- 
neapolis &c.  R.  Co.,  32  Minn.  224, 
20  N.  W.  135:  Louisville  &c.  R.  Co. 
V.  Ryan,  64  Miss.  399,  8  So.  173; 
Metropolitan  St.  R.  Co.  v.  Walsh, 
197  Mo.  392,  94  S.  W.  860;  Cochran 
V.  Missouri  &c.  R.  Co.,  94  Mo. 
App.  469,  68  S.  W.  ?>67\  Somerville 
&c.  R.  Co.  V.  Doughty,  22  N.  J.  T.. 
495;  Currie  v.  Waverly  &c.  R.  Co., 
52  N.  J.  L.  381,  20  Atl.  56,  19  Am. 
St.  452  and  note;  New  York  Cen- 
tral &c.  R.  Co.,  In  re,  6  Hun  (N. 
Y.)  149;  New  York  L.  &c.  R.  Co., 
In  re,  27  Hun  (N.  Y.)  116:  Fur- 
man  Street,  In  re,  17  Wend.  (N. 
Y.)  551,  670;  Goodin  v.  Cincinnati 
&c.  Canal  Co.,  18  Ohio  St.  169,  98 
Am.  Dec.  95;  Cincinnati  &c.  R.  Co. 
V.  Longworth,  30  Ohio  St.  108; 
William  H.  Moudy  Mfg.  Co.  v. 
Pennsylvania  R.  Co.,  64  Pa.  St.  373, 
64  Atl.  Z72,\  Rieber  v.  Butler  &c. 
R.  Co.,  201  Pa.  49,  50  Atl.  311:  Co.x 
v.  Philadelphia  &c.  R.  Co.,  215  Pa. 
506,  64  Atl.  729;  Richmond  &c.  R. 
Co.  V.  Chamblin,  100  Va.  401,  41 
S.  E.  750:   Regina  v.  Brown,  L.  R. 


2  Q.  B.  630.  See  also  Sacramento 
So.  R.  Co.  V.  Heillron,  156  Cal.  408, 
104  Pac.  979;  New  York  &c.  R.  Co. 
V.  New  Haven,  81  Conn.  581,  71 
Atl.  780;  Chicago  &c.  R.  Co.  v. 
Simons,  200  Mich.  76,  166  N.  W. 
960;  Wadsworth  Land  Co.  v.  Pied- 
mont Trac.  Co.,  162  N.  Car.  503, 
78  S.  E.  299;  Stone  v.  Delaware 
&c.  R.  Co.,  257  Pa.  St.  456,  101 
Atl.  813.  But  see  Chicago  &c.  R. 
Co.  V.  Staley,  221  111.  405,  77  N.  E. 
437,  where  it  is  held  that  the  only 
future  use  that  can  be  properly 
considered  is  that  to  which  the 
land  is  at  present  adapted  and 
which  affects  its  present  value.  In 
St.  Louis  Elec.  Terminal  Ry.  Co. 
V.  McAdaran,  257  Mo.  448,  166  S. 
W.  307.  a  pre-existing  contract  and 
plan  of  improvement  was  held  ad- 
missible to  show  that  defendants 
were  not  entitled  to  increased 
value. 

4  Boom  Co.  V.  Patterson,  98  U. 
S.  403,  25  L.  ed.  206;  St.  Louis  &c. 
R.  Co.  V.  Theodore  Maxfield  Co., 
94  Ark.  135,  126  S.  W.  83,  26  L.  R. 
A.  (N.  S.)  1111;  Gardner  v.  Brook- 
line,  127  Mass.  358;  Low  v.  Con- 
cord &c.  R.  Co.,  63  N.  H.  557,  3 
Atl.  739;  Munkwitz  v.  Chicago  &c. 
R.  Co.,  64  Wis.  403,  25  N.  W.  438; 
Pierce  v.  Chicago  &c.  Elec.  R.  Co., 
137  Wis.  550.  119  N.  W.  297.  See 
r'lso  note  in  Ann.  Cas.  1912C,  1238. 
r.ut  sec  Chicago  &c.  R.  Co.  v.  Sta- 


837 


COMPENSATION    AND    DAMAGES 


§  1250 


al)ility  for  sul)url)an  rt'sidcnct's.''  So,  where  tlie  Irind  was  shown 
to  liave  a  mine  under  its  surfaee,  it  was  held  that  that  fact  might 
be  considered  if  the  mine  added  to  the  market  vakie  of  the  land, 
even  though  such  mine  had  never  been  used."  But  it  has  l)cen 
held  that  the  intentions  of  the  owner  as  to  the  future  use  of  his 
pro])erty  can  not  be  proved,^  nor  can  evidence  be  offered  without 
limitation  of  the  jH-obal^le  advantages  from  all  possible  uses  to 
which  the  i)ropert_\-  niiglu  be  put.**  nor  of  any  elements  of  dam- 


ley,  221  111.  405,  11  X.  K.  437;  Sul- 
livan V.  Missouri  &c.  R.  Co.,  29 
Tex.  Civ.  App.  429,  68  S.  W.  745. 

5  Sherman  v.  St.  Paul'&c.  R.  Co.. 
30  Minn.  227,  15  N.  W.  239.  In 
Washburn  v.  Milwaukee  &c.  R,  Co., 
59  Wis.  364,  18  N.  W.  328,  it  was 
held  that  if  the  present  value  of 
the  lands  taken  was  enhanced  by 
reason  of  the  fact  that  it  might  be 
platted  and  sold  as  city  lots,  such 
increased  present  value  was  the 
proper  basis  of  assessment.  To 
the  same  effect,  Chicago  &c.  R.  Co. 
V.  Rottgering.  26  Ky.  L.  1167,  83 
S.  W.  584. 

^  Haslam  v.  Galena  &c.  R.  Co.. 
64  III.  353.  See  also  ^Montana  R. 
Co.  V.  Warren,  6  :\Iont.  275,  12 
Pac.  641;  Twin  Lakes  &c.  Min.  Co. 
v.  Colorado  &c.  R.  Co.,  16  Colo.  1, 
27  Pac.  258;  Doud  v.  Mason  City 
&£.  R.  Co.,  76  Iowa  438,  41  N.  W. 
65;  Cameron  v.  Chicago  &c.  R. 
Co..  51  ^linn.  153.  53  N.  W.  199; 
Burlington  i<tc.  R.  Co.  v.  White.  28 
Nebr.  166,  44  X.  W.  95. 

7  Sherwood  v.  St.  Paul  &c.  R. 
Co.,  21  Minn.  127;  Fairbanks  v. 
Fitchburg,  110  Mass.  224;  Twin 
Lakes  &c.  Syndicate  v.  Colorado 
&c.  R.  Co.,  16  Colo.  1.  27  Pac.  258. 
See  Goodwine  v.  Evans,  134  Ind. 
262,  ZZ  N.  E.  1031.  In  Welch  v. 
Milwaukee  &c.  R.  Co..  27  Wis.  108, 


Chief  Justice  Dixon  said  in  his 
opinion:  "And  while  speculative 
damages  can  not  be  allowed,  yet 
actual  damages,  its  value  to  the 
owner,  his  use  being  considered, 
must  always  be.  .  .  .  The  actual 
use  and  intention  of  th.p  proprietor, 
together  with  all  surrounding  cir- 
cumstances, must  be  considered." 
See  also  Rondout  &c.  R.  Co.  v. 
Dego.  5  Lans.  (N.  Y.)  438.  And 
compare  Illinois  Cent.  R.  Co.  v. 
Eostant.  167  Til.  85,  47  X.  E.  62 
(holding  that  railroad  property  in 
use  can  have  a  general  market  val- 
ue and  company  can  show  that  it 
intends  to  make  improvements  en- 
hancing its  value  but  not  merely 
that  it  may  do  so).  Cincinnati  &c. 
R.  Co.  V.  Eongworth,  30  Ohio  St. 
108;  Ripley  v.  Great  Northern  R. 
Co.,  31  E.  T.  N.  S.  869. 

8  Selma  &c.  R.  Co.  v.  Keith,  53 
Ga.  178;  Fleming  v.  Chicago  &c. 
R.  Co.,  34  Iowa  353;  Worcester  v. 
Great  Falls  &c.  Co..  41  Maine  159. 
66  Am.  Dec.  217;  Gardner  v.  Brook- 
line,  127  Mass.  358;  Eake  Shore  &c. 
R.  Co.  V.  Cincinnati  &c.  R.  Co.,  30 
Ohio  St.  604;  Powers  v.  Hazelton 
&c.  R.  Co.,  33  Ohio  St.  429;  Searle 
V.  Eackawanna  &c.  R.  Co.,  ZZ  Pa. 
.St.  57;  Dorian  v.  East  Brandywine 
&c.  R.  Co.,  46  Pa.  St.  520.  The  fact 
that  the  lands  taken  would  be  ren- 


§  1260 


RAILROADS 


838 


a.^'c  which  lie  wholly  in  ct)njecture."  lividence  as  to  the  \alne  of 
a  reversion  in  the  railway  location  will  not  be  received,  where  it 
is  impossible  to  know  when  the  existing-  easement  will  terminate, 
or  Avhether  it  will  ever  terminate. ^'^ 

§  1260  (994a).  Compensation  for  additional  burden  on  right 
of  way. — The  owner  of  a  rii^ht  of  way  is  generally  entitled  to 
compensation  for  any  new  bnrden  on  the  easement  not  con- 
templated in  the  (jriginal  condemnation."  Such  a  burden,  it  has 
been  held,  will  be  imposed  by  the  construction  of  a  line  of  tele- 
i:;'raph  on  the  rii^ht  of  way  unless  constructed  fcjr  the  use  and 
benefit  of  the  railroad  company  in  the  operation  of  its  road  and 


(lered  more  valuable  by  the  con- 
struction of  a  canal  along  the  south 
side  of  the  tract,  which  might  or 
might  not  be  built  at  sometime  in 
the  future  by  the  public  authori- 
ties, and  that  the  railroad,  as  built, 
would  cut  off  access  to  the  canal 
from  a  large  part  of  the  owner's 
land,  was  held  to  be  too  remote 
and  speculative  an  eletnent  of  dain- 
ages  to  sustain  an  assessment. 
^Tunkwitz  v.  Chicago  &c.  R.  Co., 
64  Wis.  40.3,  25  N.  W.  4.38.  Tn  Wat- 
son V.  Milwaukee  &c.  R.  Co.,  57 
Wis.  332,  15  N.  W.  468,  an  instruc- 
tion was  approved  which  laid  down 
the  rule  for  assessing  damages,  as 
follows:  "In  determining  tlie  value 
of  land  actually  taken,  you  are  to 
be  governed  by  the  fair  market 
value  (at  the  time  of  the  taking) 
—what  was  the  fair  market  value 
of  the  land  at  that  time,  for  any 
purpose  for  which  it  might  rea- 
sonably be  used  in  the  immediate 
future — not  what  would  lots  sell 
for  in  the  distant  future  if  a  street 
were  opened  and  lots  offered  for 
sale.  Nor,  indeed,  is  the  price  per 
lot  a  measure  of  value,  either  in  the 


near  or  the  distant  future."  Alunk- 
witz  V.  Chicago  &c.  R.  Co.,  64  Wis. 
403,  25  N.  W.  438. 

"  Central  Pacific  R.  Co.  v.  Pear- 
son. 35  Cal.  247;  Elizabethtown  &c. 
R.  Co.  V.  Helm,  8  Bush.  (Ky.)  681; 
Troy  Sec.  R.  Co.  V.  Northern  Turnp. 
Co.,  16  Barb.  (N.  Y.)  100.  See  also 
Chicago  &c.  R.  Co.  v.  Bowman, 
122  III.  595,  13  N.  E.  814;  Union  R. 
&c.  Co.  v.  :doore,  80  Ind.  458;  Tall- 
man  V.  .Metropolitan  &c.  R.  Co., 
121  N.  V.  119,  23  N.  E.  1134,  8  L. 
R.  A.  173  and  note;  Willock  v. 
Beaver  \'al.  R.  Co.,  229  Pa.  St.  526, 
79  Atl..l38;  San  Diego  &c.  Co.  v. 
Xeale.  88  Cal.  50,  25  Pac.  977.  11 
T,.   R.  A.  r)04  and  note. 

1"  l^oston  &c.  R.  Co.  V.  Old  Col- 
ony <S:c.  R.  Co.,  3  .^llen  (Mass.) 
142.  As  to  the  measure  of  dam- 
ages where  leasehold  is  condemned, 
see  Bales  v.  Wichita  &c.  R.  Co., 
92  Kans.  771,  141   Pac.  1009. 

11  Wallach  v.  New  York  &c.  R. 
Co.,  Ill  App.  Div.  273,  97  N.  Y.  S. 
717.  Sec  Town  of  Euricie  v.  Lou- 
isiana &c.  R.  Co.,  135  La.  Ann.  882, 
66  So.  257. 


839  COMI'KNSATIO.N     AND    DA.MACKS  §  12(31 

reasonably  necessary  for  that  purpose.'-  But  the  fact  that  the 
hue  was  constructed  under  a  contract  between  the  railrcjad  com- 
pany and  the  telegraph  c()nij)an\-  (U)es  not  entitle  the  land-owner 
t<»  an  accountino-  of  the  rents  and  profits  received  by  the  railroad 
conipaii}-.  The  primary  question  is  the  land-owner's  injur}'  and 
not  the  other  ])arty's  profit.'"  'J'he  authorities  .ijenerally  allow 
a  railroad  company  to  construct  as  many  tracks  and  side  tracks 
(tn  its  right  of  way  as  it  deems  necessary  for  the  transaction  of  its 
business  without  paying  the  owner  of  the  fee  any  additional 
compensation. ''  And  it  seems  clear  that  a  railroad  company  may 
change  the  location  of  its  tracks,  within  the  limits  of  its  right  of 
way.  without  being  charged  with  subjecting  the  right  of  way  to 
a  .new  use.'"'  Where,  however,  the  railroad  company  acquires 
land  under  a  deed  given  with  the  express  tmderstanding  that  it  is 
to  be  used  for  a  main  line  only,  the  railroad  company  can  not  lay 
side  tracks  thereon  without  paying  additional  comj:)ensation."' 

§  1261    (995).     Measure     of      damages — Illustrative      cases. — 

The  general  rule  is  that  where  the  entire  tract  is  taken,  the 
measure  of  damages  is  its  market  value.''  taking  into  considera- 
tion its  surroundings,  improvements,  and  capabilities  for  \aluable 

1- American      Tel.      &c.      Co.      v.  ton   &c.   Ry.   Co.   (Tex.   Civ.  App.). 

Smith,   71    Md.   535,   18   Atl.   910.  7  203  S.  W.  936. 

L.    R.    A.    200    and    note;    Western  i'' Rrinkley    v.    Southern    R.    Co., 

Union   Tel.   Co.  v.   Rich.    19   Kans.  135  N.  Car.  654.  47  S.  E.  791.     See 

517,  27  Am.  Rep.  159.     See  post,  §  also  Bryan  v.Louisville  &c.  R.  Co., 

1264.  244    Fed.    650    (relocation    of    road 

13  Chicago  &c.   R.   Co.  v.  Snyder,  not   a   taking  or   injuring   of   prop- 

120  Iowa  532,  95  N.  W.  183.  erty  near  old  location). 

1*  East  Tennessee   &c.   R.  Co.  v.  '^^  Donisthrope    v.    Fremont    &c. 

Telford.    89    Tenn.    293.    14    S.    W.  R.  Co.,  30  Nebr.  142.  46  N.  W.  240. 

776,  10  L.  R.  A.  855:   Pottsville  v.  27  Am.  St:  387. 

People's  R.  Co..  148  Pa.  St.  175,  23  ^'  Bangor  &c.  R.  Co.  v.  McComb, 

Atl.  900:  White  v.  Chicago  &c.  R.  60  Maine  290;  Virginia  &c.   R.  Co. 

Co..   122  Ind.  317,  23   N.   E.  782.  7  v.  Henry,  8  Nev.  165:  Dearborn  v. 

L.  R.  A.  257.     See  also  Hanselman  Boston   &c.  R.   Co..  24  N.   H.   179; 

V.    Grand    Trunk    &c.    R.    Co..    163  Petition  of  Mt.  Washington  R.  Co.. 

Mich.  496,  128  N.  W.  7M:  Cliicago  35  N.  H.  134:  Albany  &c.  R.  Co.  v. 

&c.    R.    Co.   V.    Rehnke.    113    Minn.  Dayton,  10  Abb.  Pr.  N.  S.  (N.  Y.) 

390.    129    N.    W.   771;    ante   §    1170.  182:  Baltimore  &c.  R.  Co.  v.  Pitts- 

But  compare  Stubblefield  v.  Hous-  Inirgh   &c.   R.   Co..   17  W.  Va.  812. 


j  12G1 


RAILROADS 


840 


uses  of  any  kind.'^  And  where  part  only  of  a  tract  of  land  is 
taken,  but  the  part  taken  bears  such  a  relation  to  the  residue  of 
the  tract,  or  is  to  be  devoted  to  such  a  use  (as  by  cuts,  embank- 
ments, switch-yards,  or  the  like)  that  the  value  of  such  residue 
is  dej^reciated.  the  land-owner  is  entitled  to  damaijes.  in  most 
jurisdictions,  not  onlv  for  the  value  of  the  land  actually  trd<en, 
l.'Ut  for  the  injury  to  the  part  not  taken.     Such  damages  must  be 


See  also  Alabama  Cent.  R.  Co.  v. 
^[usgTove.  169  Ala.  424.  53  So. 
1009;  Union  Trac.  Co.  v.  T'feil. 
39  Ind.  App.  51.  78  N.  E.  1052.  1054 
(citing  te.xt) ;  \^aulx  v.  Tennessee 
Cent.  R.  Co.,  120  Tenn.  316.  108 
S.  W.  1142.  But  in  determining 
what  the  market  value  is,  it  is 
proper  to  take  into  consideration 
matters  which  give  the  property 
appropriated  a  special  value.  Merc 
matters  of  fancy,  conjecture,  or 
the  like,  should,  however,  be  ex- 
cluded from  consideration.  Kerr  v. 
South  Park  Commissioners,  117  U. 
S.  379,  6  Sup.  Ct.  801,  29  L.  ed.  924; 
Shoemaker  v.  United  States,  147 
U.  S.  282,  13  Sup.  Ct.  361,  37  L.  ed. 
170. 

IS  Little  Rock  &c.  R.  Co.  v. 
Woodruff.  49  Ark.  38l",  5  S.  W.  792, 
4  -Am.  St.  51;  Haslam  v.  Galena  &c. 
R.  Co.,  64  111.  353;  Central  Branch 
&c.  R.  Co.  V.  Andrews,  26  Kans. 
702;  P.ailey  v.  Boston  &c.  Corp.. 
182  Mass.  537,  66  N.  E.  203;  Louis- 
ville &c.  R.  Co.  v.  Ryan,  64  Miss. 
399,  8  So.  173;  Low  v.  Railroad  Co., 
63  N.  H.  557;  Pittsburgh  &c.  R.  Co. 
V.  Vance.  115  Pa.  St.  325,  8  Atl. 
764;  Eastern  Texas  R.  Co.  v,  Edd- 
ings,  30  Tex.  Civ.  App.  170,  70  S. 
W.  98;  Weyer  v.  Chicago  &c.  R. 
Co..  68  Wis.  180,  31  N.  W.  710. 
Quality  and  productiveness  of  the 
land:  Ragan  v.  Kansas  City  &c.  R. 


Co.,  144  Mo.  623.  46  S.  W.  602; 
Weyer  v.  Chicago  &c.  R.  Co.,  68 
Wis.  180,  31  N.  W.  710.  Rental 
value:  Frement  &c.  R.  Co.  v.  Bates, 
40  Nebr.  381,  58  N.  W.  959.  See 
also  Mineral  Springs:  Kossler  -v. 
Pittsburg  &c.  R.  Co..  208  Pa.  50, 
57  Atl.  66.  Factory  buildings: 
White  V.  Cincinnati  &c.  R.  Co.,  34 
Ind.  App.  287.  71  N.  E.  276.  Im- 
provements on  farms:  Illinois  &c. 
R.  Co.  V.  Humiston.  208  111.  100,  69 
N.  E.  880.  Valuable  frontage  on 
another  railroad  destroyed:  Wray 
V.  Knoxville  &c.  R.  Co.,  113  Tenn. 
544,  82  S.  W.  471.  Suitableness  of 
land  for  raising  ducks:  Cox  v.  Phil- 
adelphia &c.  R.  Co.,  215  Pa.  506, 
64  Atl.  729.  As  to  rights  of  owners 
of  mines  under  the  English  Rail- 
way act  of  1845,  see  Lord  Gerard 
and  London  &o..  In  re.  L.  R.  (1894) 
2  Q.  B.  915,  and  Chamber  &c.  Co. 
V.  Rochdale  Canal,  L.  R.  (1894)  2 
Q.  B.  632.  It  has  been  held  that 
although  the  owner  had  testified 
that  a  certain  portion  of  his  farm 
crossed  by  the  railroad  was  adapt- 
ed for  pasture,  and  that  he  had  in- 
tended to  use  it  for  stock  purposes, 
it  was  error  to  limit  the  witnesses 
testifying  to  the  market  value  of 
the  farm  to  a  consideration  of  this 
particular  purpose.  Lough  v.  Min- 
neapolis &c.  R.  Co.,  116  Iowa  31, 
89  N.  W.  77. 


841 


C'OAII'KXSATION    AND    DAMAGES 


§1261 


given  in  most  jurisdictions  whether  the  statute  mentions  them 
or  not.'"  While  damases  for  such  incidental  injuries  may  be 
awarded,  the  g'eneral  rule,  accordiui,^  to  the  weiijht  of  authority, 
is  that  purely  conse(|uential  damages  can  not  be  awarded.  The 
rule  ^'[•enerally  enforced  is  that  the  owner  is  entitled  to  the  differ- 
ence between  the  market  value  of  the  wh(jle  lot  or  tract  before 
the  takinti:.  and  the  market  value  of  what  remains  to  him  after 
such  taking,  uninfluenced  by  any  general  rise  in  values  of  prop- 
erty due  to  the  improvement.-"     This  seems  to  us  to  be  the  sound 


''•  St.  Louis  &c.  R.  Co.  V.  Ander- 
son. 39  Ark.  167:  Selma  &c.  R.  Co. 
V.  Redwine,  51  Ga.  470;  Peoria  &c. 
R.  Co.  V.  Sawyer,  71  111.  361;  Illi- 
nois &c.  R.  Co.  V.  Humiston,  208 
111.  100.  69  N.  E.  880;  Baltimore 
&c.  R.  Co.  V.  Lansing,  52  Ind.  229; 
Kucheman  v.  Chicago  &c.  R.  Co., 
46  Iowa  366;  Atchison  &c.  R.  Co.  v. 
Gough,  29  Kans.  94;  Richmond  &c. 
Turnp.  R.  Co.  v.  Rogers,  1  Duv. 
(Ky.)  135;  Walker  v.  Old  Colony 
R.  Co.,  103  Mass.  10,  4  Am.  Rep. 
409;  Wilmes  v.  Minneapolis  &c.  R. 
Co.,  29  Minn.  242.  13  N.  W.  39: 
Wyandotte  &c.  R.  Co.  v.  Waldo,  70 
Mo.  629;  Fremont  .&c.  R.  Co.  v. 
Lamb,  11  Nebr.  592,  10  N.  W.  493; 
Virginia  &c.  R.  Co.  v.  Henry,  8 
Nev.  165;  Dearborn  v.  Boston  &c. 
R.  Co.,  4  Post.  (N.  H.)  179;  South 
Buffalo  &c.  R.  Co:  v.  Kirkover,  176 
N.  Y.  301.  68  N.  E.  366;  Raleigh 
&c.  R.  Co.  V.  Wicker,  74  N.  Car. 
220;  Cleveland  &c.  R.  Co.  v.  Ball, 
5  Ohio  St.  568;  Blincoe  v.  Choctaw 
&c.  R.  Co.,  16  Okla.  286,  83  Pac. 
903;  Watson  v.  Pittsburgli  &c.  R. 
Co..  37  Pa.  St.  469;  Baltimore  &c. 
R.  Co.  V.  Pittsburgh  &c.  R.  Co., 
17  W.  Va.  812;  Parks  v.  Wisconsin 
Central  &c.  Co..  33  Wis.  413;  Chap- 
man V.  Oshkosli  &c.  R.  Co..  33 
Wis.   629. 


2f'  Little  Rock  &c.  R.  Co.  V.  Al- 
len. 41  .\rk.  431;  Imlay  v.  Union 
Branch  R.  Co.,  26  Conn.  249.  68 
Am.  Dec.  392;  Wilson  v.  Rockford 
&c.  R.  Co.,  59  III.  273;  Chicago  &c. 
R.  Co.  V.  Hall,  90  111.  42;  Chicago 
&c.  R.  Co.  V.  Mawman,  206  111. 
182,  69  N.  E.  66;  White  Water  Val- 
ley R.  Co.  V.  McClure,  29  Ind.  536; 
Grand  Rapids  &c.  R.  Co.  v.  Horn, 
41  Ind.  479;  Baltimore  &c.  R.  Co. 
V.  Lansing,  52  Ind.  229;  Sater  v. 
Burlington  &c.  R.  Co..  1  Iowa  386; 
Fleming  v.  Chicago  &c.  R.  Co.,  34 
Iowa  353;  Brooks  v.  Davenport  &c. 
R.  Co.,  37  Iowa  99;  Atchison  &c. 
R.  Co.  V.  Blackshire,  10  Kans.  477; 
Henderson  &c.  R.  Co.  v.  Dicker- 
son,  17  B.  Mon.  (Ky.)  173.  66  Am. 
Dec.  148;  Robb  v.  Maysville  &c.  R. 
Co.,  3  Mete.  (Ky.)  117;  Bangor 
&c.  R.  Co.  v.  McComb.  60  Maine 
290;  Meacham  v.  Fitchburg  R.  Co., 
4  Cush.  (Mass.)  291,  299;  Presbrey 
V.  Old  Colony  &c.  R.  Co..  103 
^lass.  1;  Grand  Rapids  &c.  R.  Co. 
V.  Heisel.  47  Mich.  393.  11  N.  W. 
212:  Winona  &c.  R.  Co.  v.  Wal- 
dron.  11  Minn.  515.  88  Am.  Dec.  100 
and  note;  Lake  Superior  &c.  R. 
Co.  V.  Greve.  17  Minn.  322;  Scott 
V.  St.  Paul  &c.  R.  Co.,  21  Minn. 
322;  Quincy  &c.  R.  Co.  v.  Ridge. 
57    Mo.    599;     Petition     of     M<nmt 


12(il 


K  AlLKO.vnS 


842 


i^'cneral  doclrine.-'  B}  tlic  market  xaluc.  as  the  cases  i^enerally 
hold,  is  meant  the  jjrice  for  which  the  i)r()i)erty  could  be  sold,  not 
at  a  forced  sale,  l)nt  at  a  sale  conducted  bv  the  owner  with  due 


Washington  Road  Co.,  35  N.  H. 
134:  Troy  &c.  R.  Co.  v.  Lee,  13 
I'.arl).  (X.  V.)  169:  Ponghkeepsie 
\t.  R.  Co.,  In  re,  63  Barb.  (X.  Y.) 
151:  Prospect  &c.  R.  Co.,  In  re.  13 
Hun  345.  16  Hun  (N.  Y.)  261; 
Henderson  v.  Xcw  York  Central 
R.  Co.,  78  N.  Y.  423,  17  Hun  344; 
Cincinnati  &c.  R.  Co.  v.  Long- 
worth,  30  Ohio  St.  108;  Powers  v. 
Hazelton  &c.  R.  Co.,  33  Ohio  St. 
429;  Searlc  v.  Lackawanna  &c.  R. 
Co..  33  Pa.  St.  57:  Harvey  v. 
Lackawanna  &c.  R.  Co.,  47  Pa.  St. 
428:  llornstein  v.  Atlantic  &c.  R. 
Co.,  51  Pa.  St.  87;  East  Brandy- 
wine  &c.  R.  Co.  V.  Ranck,  78  Pa. 
St.  454;  Pennsylvania  &c.  R.  Co. 
V.  Bunnell,  81  Pa.  St.  414;  Pitts- 
burgh &c.  R.  Co.  V.  Bentley,  88  Pa. 
St.  178:  Greenville  &c.  R.  Co.  v. 
Partlow.  5  Rich.  L.  (S.  Car.)  428: 
Charleston  &c.  R.  Co.  v.  Blake.  12 
•Rich.  (S.  Car.)  634;  Woodfolk  v. 
Nashville  &c.  R.  Co.,  2  Swan 
(Tenn.)  422:  Eastern  Texas  R.  Co. 
V.  Eddings.  30  Tc.x.  Civ.  App.  170, 
70  S.  W.  98:  Pochila  v.  Calvert  &c. 
R.  Co.,  31  Tex.  Civ.  App.  398,  72 
S.  W.  255;  Seattle  &c.  R.  Co.  v. 
Roeder,  30  Wash.  244,  70  Pac.  498, 
94  Am.  St.  864;  Robbing  v.  Milwau- 
kee &c.  R.  Co.,  6  Wis.  636;  Driver 
v.  Western  Union  R.  Co.,  32  Wis. 
569,  14  Am.  Rep.  726.  "What  was 
the  fair  market  value  of  the  whole 
property,  and  then  what  would  be 
the  fair  marketable  value  of  the 
property  not  taken?  The  differ- 
ence would  be  the  true  amount  of 
compensation      to      be      awarded." 


Canandaigua  &c.  R.  Co.  v.  Payne, 
16  Barb.  (N.  Y.)  273;  Pittsburgh 
&c.  R.  Co.  V.  Rose,  74  Pa.  St.  362: 
Delaw'are  &c.  R.  Co.  v.  Burson,  61 
Pa.  St.  369;  Chicago  &c.  R.  Co.  v. 
iM-ancis,  70  111.  238.  But  in  Illinois 
and  some  other  states,  the  latest 
decisions  are  to  the  effect  that  if 
llic  improvement  actually  enhances 
the  \alue  of  the  property  this  bene- 
fit may  be  set  oft'»even  though  it  is 
common  to  all  the  propert}'  in  the 
neighborhood  or  along  the  route 
of  the  railroad.  Peoria  &c.  Trac. 
Co.  V.  Vance.  225  111.  270,  80  N.  E. 
134,  9  L.  R.  A.  (X.  S.)  781;  Brand 
V.  Union  Elev.  R.  Co.,  258  111.  133. 
101  N.  E.  247,  L.  R.  A.  1918A,  878. 
The  notes  to  these  tw'o  cases  as 
last  reported  cite  other  authorities 
on  both  sides.  The  fact  that  the 
land-owner  obtained  a  reversion  in 
the  property  taken  does  not  lessen 
the  amount  of  his  damages,  but 
they  must  be  assessed  by  reference 
to  the  full  market  value  of  the 
property.  Hollingsworth  v.  Des 
:\Ioines  &c.  R.  Co.,  63  Iowa  443, 
19  N.  W.  325.      . 

-1  See  New  Orleans  &c.  R.  Co. 
V.  Lagarde,  10  La.  .\nn.  150;  Safer 
V.  Burlington  &c.  i'lank  R.  Co.,  1 
Iowa  386:  Elizabethtown  &c.  R. 
Co.  V.  Helm.  8  Bush.  (Ky.)  681: 
Carli  V.  Stillwater  &c.  R.  Co.,  16 
]\Iinn.  260;  Mimieapolis  &c.  Trac. 
Co.  V.  Harkins,  108  Minn.  478,  122 
N.  \W.  450;  Carolina  &c.  R.  Co.  v. 
Armfield,  167  N.  Car.  464,  83  S.  E. 
809. 


843  coMpr-'.xsATiox  and  damages  §  1261 

regard  to  liis  (jwii  interest. -"-  The  estimate  which  the  owner  puts 
upon  his  property,  so  far  as  it  is  influenced  by  a  fondness  for  the 
particular  premises,  is  not  to  be  taken  as  the  true  measure  of 
(lama.s:es.'--'  Neither,  it  seems,  is  it  conchisive  what  some  par- 
ticular person,  even  thou.q'h  willing"  to  buy  the  land,  will  give  for 
the  land.'-'  The  inquiry  is  as  to  the  fair  market  value  at  a  sale 
niade  in  ordinary  course  of  business,  taking  into  consideration 
jidvantagcs  of  location  and  like  circumstances.  The  necessity 
of  the  company  is  not  to  be  considered  as  enhancing  the  value  of 
the  land.'-^  nor,  on  the  other  hand,  can  the  value  be  ascertained 

--  Little   Rock  &c.   R.   Co.  v.  Mc-  its    value    must    he    determined    by 

Gehee,  41  Ark.  202;  Dupuis  v.  Chi-  the    uses    to    wliich    it    is    applied, 

cage  &c.  R.  Co..  115  Hi.  97,  3  N.  E.  T-ake  Shore  &c.  R.  Co.  v.  Chicago 

720;    Everett    v.    Union    Pacific    R.  &c.  R.  Co.,  100  111.  21;  Chicago  &c. 

Co.,   59    Iowa  243.    13   N.   W.    109:  R.  Co.  v.  Jacobs,  110  111.  414;  Chi- 

Elizabethtown  &c.  R.  Co.  v.  Helm,  cago  &c.  R.  Co.  v.  Chicago  &c.  R. 

8  Bush.  (Ky.)  681:  Tufts  v.  Charles-  Co..  112  111.  589. 

town.  4  Gray  (Mass.)  537:  Virgin-  ^a  fufts  v.  Charlestown.  4  Gray 
ia  &c.  R.  Co.  V.  Elliott.  5  Nev.  358;  (Mass.)  537;  Furman  Street,  Mat- 
Low  V.  Concord  R.  Co..  63  N.  H.  ter  of.  17  Wend.  (N.  Y.)  649.  See 
557,  3  Atl.  739:  Somerville  &c.  R.  also  Harrison  v.  Iowa  Midland  R. 
Co.  v.  Doughty,  22  N.  J.  L.  495;  Co..  36  Iowa  323.  But  in  Robb  v. 
Giesy  v.  Cincinnati  &c.  R.  Co..  4  Maysville  &c..  3  Mete.  (Ky.)  117, 
Ohio  St.  308,  331;  Searle  v.  Lacka-  the  peculiar  value  of  the  land  to 
wanna  &c.  R.  Co.,  33  Pa.  St.  57;  the  owner  was  taken  as  the  meas- 
Woodfolk  V.  Nashville  &c.  R.  Co.,  ure  of  damages. 
2  Swan  (Tenn.)  422;  McKinney  v.  -*  Chicago  &c.  R.  Co.  v.  Kelly, 
Nashville.  102  Tenn.  131.  52  S.  W.  221  III.  498,  77  N.  E.  916. 
781.  73  Am.  St.  859.  See  also  Idaho  2.^  Henry  v.  Dubuque  &c.  R.  Co.. 
&c.  R.  Co.  V.  Columbia  Conference.  2  Towa  288:  Henderson  &c.'  R.  Co. 
20  Idaho  568.  119  Pac.  60:  Weiser  v.  Dickerson,  17  B.  Mon.  (Ky.) 
Val.  Land  &c.  Co.  v.  Ryan.  190  173.  66  Am.  Dec.  148;  Union  Depot 
Fed.  417.  The  price  which  the  St.  R.  &c.  Co.  v.  Brunswick.  31 
owner  gave  may  bo  put  in  evidence.  Minn.  2'^)7.  17  N.  W.  626,  47  .Am. 
and  the  owner  may  show  under  Rep.  789:  St.  Louis  &c.  R.  Co.  v. 
what  circumstances  he  purchased  Knapp.  Stout  &  Co.,  160  Mo.  396, 
it.  and  the  value  of  the  improve-  61  S.  W.  300;  Virginia  &c.  R.  Co. 
ments  he  put  upon  it.  Swan  v.  v.  l^lliott,  5  Nev.  358.  See  also 
Middlesex  Co..  101  Mass.  177.  Lambert  v.  Giffin,  257  111.  152,  100 
Where  the  land  lias  been  fitted  by  N.  E.  496:  Broadway  Coal  Min.  Co. 
tlie  owner  for  use  in  coiuiection  v.  Smith,  136  Ky.  725,  125  S.  W. 
with  ntlier  property,  ami  lias  no  157. 
market   value  apart  from  such  use. 


§  12G1 


KAlLltOADS 


844 


by  considering  what  the  property  would  bring  tit  a  forced  sale. 
In  arriving  at  the  probable  difference  between  the  market  value 
oi  the  property  before  and  after  the  construction  of  the  railroad 
oi  other  public  work,  the  inllucnce  upon  that  value  exercised  by 
different  causes  is  a  proper  subject  for  consideration  by  the  jury. 
But  neither  annoyances  of  a  kind  which  affect  the  whole  public,-*^ 
nor  benefits  that  are  shared  by  the  community  in  general,-'  can 
l;e  proven  as  affecting  the  question  of  damages.  So.  in  most 
jurisdictions,  a  mere  general  and  public  benefit  or  increase  of 
value  received  by  the  plaintiff's  land,  in  common  with  other 
lands  in  the  neighborhood,  is  not  to  be  taken  into  considera- 
tion.-^ Where  the  personal  ])roperty  is  destroyed  by  the  taking 
of  land  for  a  railroad  right  of  way.  its  value  is  a  proper  clement 
of  damage.  This  rule  is  applied  in  cases  where  growing  crops 
are  destrovcd  in  building  the  road,^^  and  where  the  rights  of  a 


26  St.  Louis  &c.  R.  Co.  V.  Haller, 
82  111.  208:  Ham  v.  Wisconsin  &c. 
R.  Co.,  61  Iowa  716,  17  N.  W.  157; 
First  Parish  v.  County  of  Middle- 
sex. 72>  Mass.  (7  Gray)  106:  Presby 
V.  Old  Colony  &c.  R.  Co.,  103 
Mass.  1;  Walker  v.  Old  Colony  &c. 
R.  Co.,  103  Mass.  10,  4  Am.  Rep. 
509:  Gulf  &c.  R.  Co.  v.  Fuller,  63 
Tex.  467;  Chicago  &c.  R.  Co.  v. 
Ritter  (Tex.),  10  Am.  &  Eng.  R. 
Cas.  202.  See  also  Lavelle  v.  Jules- 
burg,  49  Colo.  290,  112  Pac.  774; 
Illinois  "Cent.  R.  Co.  v.  Elliott,  2,2, 
Ky.  L.  537,  110  S.  W.  817;  Bangor 
R.  Co.  V.  McComb,  60  Maine  290; 
Idaho  &c.  R.  Co.  v.  Nagle,  184  Fed. 
598.  Compare  also  Hatch  v.  Ver- 
mont Central  R.  Co.,  28  Vt.  142; 
Lansing  v.  Smith,  8  Cow.  (N.  Y.) 
151. 

-'  Keithsburg  &c.  R.  Co.  v.  Hen- 
ry. 79  III.  290;  Chicago  &c.  R.  Co. 
V.  Hall,  90  III.  42;  Brand  v.  Union 
Kiev.  R.  Co.,  258  111.  133,  101  N.  E. 
247.  Ann.  Cas.  1914B.  473;  Tobie 
V.  Comrs.  of  Brown  Co.,  20  Kans. 
14;    Sexton    v.    North    Bridgewater, 


116  Mass.  200;  Winona  &c.  R.  Co. 
V.  Waldron,  11  Minn.  515,  88  Am. 
Dec.  100  and  note;  St.  Louis  &c. 
R.  Co.  V.  Richardson,  45  Mo.  466; 
Putnam  v.  Douglas  Co.,  6  Ore.  328, 
25  Am.  Rep.  527. 

28  Page  V.  Chicago  &c.  R.  Co.,  70 
HI.  324;  Mix  v.  Lafayette  &c.  R. 
Co.,  67  111.  319:  Bangor  &c.  R.  Co. 
V.  McComb,  60  Maine  290.  Adden 
X.  White  Mountains  R.  Co.,  55  N. 
H.  413,  20  Am.  R.  220:  ante  n.  23. 
See  also  Routh  v.  Texas  Trac.  Co. 
(Tex.  Civ.  App.).  148  S.  W.  1152; 
Fowler  v.  Norfolk  &c.  R.  Co.,  68 
W.  Va.  274,  69  S.  E.  811.  But  see 
contra  Brand  v.  Union  Elevated  R. 
Co..  258  111.  722,.  101  N.  E.  247, 
L.  R.  A.  1918A,  878.  affirmed  by  a 
divided  court  in  238  U.  S.  586.  35 
Sup.  Ct.  846,  59  L.  ed.  1471. 

-^  Lance  v.  Chicago  &c.  R.  Co., 
57  Iowa  636,  11  N.  W.  612;  Gilmore 
v.  Pittsburgh  &c.  R.  Co.,  104  Pa. 
St.  275:  Seattle  &c.  R.  Co.  v. 
Scheike.  3  Wash.  625.  29  Pac.  217, 
30  Pac.  503. 


845 


COMPENSATION    AND    DAMACJES 


§1261 


lessee  of  land  are  coiulemned.'"'  There  are  cases  iKjldinc,'-  thai 
\\'here  the  railroad  has  been  actually  constructed  at  the  time  the 
assessment  is  made,  the  jur}-  in  assessing  damages  may  take  into 
consideraticMi  the  manner  in  which  it  was  actually  built/''  and 
may,  where  such  right  exists,  consider  the  right  of  the  comjiany 
to  change  its  grade  and  manner  of  construction  without  making 
additional  compensation.'-'  Some  of  the  cases  hold  that  where 
no  pait  of  the  j^laintiff's  land  is  taken,  he  is  not  entitled  tcj  dam- 
ages for  annoyance  caused  by  throwing  smoke,  dust  and  soot 
upon  his  premises,  unless  some  peculiar  constitutional  or  stat- 
utory provision  gives  damages  for  such  injuries. ■*■'  But  it  is 
doubtful  whether  the  doctrine  of  these  cases  can  l)e  reconciled 
with  that  declared  by  other  decisions."* 


30  Booker  v.  Venice  &c.  R.  Co., 
101  111.  333.  See  also  Schreiber  v. 
Chicago  &c.  R.  Co.,  115  III.  340,  3 
N.  E.  427;  North  Coast  R.  Co.  v. 
Gentry,  58  Wash.  82,  107  Pac.  1060. 

31  Thompson  v.  Milwaukee  &c. 
R.  Co.,  27  Wis.  93;  Cummins  v. 
Des  Moines  &c.  R.  Co.,  63  Iowa 
397,  19  N.  W.  268;  Union  Railroad 
&c.  Co.  V.  IMoore,  80  Ind.  458.  See 
Hayes  v.  Ottawa  &c.  R.  Co.,  54  111. 
373.  And  compare  Cleveland  &c. 
R.  Co.  V.  Smith,  177  Ind.  524,  97 
N.  E.   164. 

32  Jilarch  V.  Portsmouth  &c.  R. 
Co.,  19  N.  H.  372.  But  it  seems 
to  us  that  some  of  the  cases  go  en- 
tirely too  far,  at  all  events  the 
doctrine  is  to  be  carefully  limited 
and  cautiously  applied.  It  is  doubt- 
less true  that  the  right  to  make 
ordinary  changes  should  be  taken 
into  consideration  as  v^ell  as  the 
ordinary  inconveniences  resulting 
from  the  operation  of  the  railroad 
in   a   reasonably  careful   mode. 

33  Hatch  V.  Vermont  Central  R. 
Co.,  25  Vt.  49;  Cogswell  v.  New 
York  &c.   R.   Co.,  48  N.  Y.   Super. 


Ct.  31,  reversed  103  N.  Y.  10,  8 
N.  E.  537,  57  Am.  Rep.  701;  Walker 
V.  Old  Colony  &c.  R.  Co.,  103  Mass. 
10,  57  .\m.  Rep.  701;  Dimmick  v. 
Council  Bluffs  &c.  R.  Co.,  62  Iowa 
409,  17  N.  W.  595.  See  also  Harri- 
son V.  Denver  &c.  Tramway  Co., 
54  Colo.  593,  131  Pac.  409,  44  L.  R. 
A.  (N.  S.)  1164;  Fink  v.  Cleveland 
&c.  Ry.  Co.,  181  Ind.  539,  105  N.  E. 
116;  .\tchison  &c.  R.  Co.  v.  Arm- 
strong. 71  Kans.  366,  80  Pac.  978, 
1  L.  R.  A.  (N.  S.)  113,  114  Am.  St. 
474. 

34  Lake  Erie  &c.  R.  Co.  v.  Scott, 
132  111.  429,  24  N.  E.  78,  8  L.  R.  A. 
330  and  note;  Springer  v.  Chicago. 
135  111.  552,  26  N.  E.  514,  12  L.  R. 
.■\.  609  and  note;  Chicago  &c.  R. 
Co.  V.  Leah,  152  111.  249,  38  N.  E. 
556:  Seaside  El.  R.  Co.,  Matter  of. 
S3  Hun  143,  31  N.  Y.  S.  630:  Ft. 
Worth  &c.  Co.  v.  Daniels  (Tex. 
Civ.  App.),  29  S.  W.  695;  ante.  § 
1235;  note  in  85  Am.  St.  309,  et  seq. 
See  generally  upon  the  subject 
notes  to  Tidewater  R.  Co.  v.  Shart- 
zer,  17  L.  R.  A.  (N.  S.)  1054;  Rasch 
V.   Xas.^ana   Elec.  R.   Co.,  36  L.   R. 


§  1262 


RAILROADS 


846 


§  1262  (996).  Matters  to  be  considered  in  estimating  damages 
— Illustrative  instances. — if  the  construction  of  private  or  farm 
crossings  is  made  necessary,  the  probable  cost  of  making  them 
must  be  considered  l)y  the  jury  in  assessing  damages,^''  unless 
the  road  is  bound  to  build  and  maintain  such  crossings,  in  •\vhich 
case  that  fact  must  be  considered. ^'^  Where  the  construction  of 
the  road  makes  necessary  the  removal  of  l)uildings,'''  or  the  erec- 


A.  (N.  S.)  673;  Hyde  v.  Minnesota 
&c.  R.  Co.,  40  L.  R.  A.  (N.  S.)  48; 
and  the  opinion  in  Choctaw  &c. 
R.  Co.  V.  Drew,  2,7  Okla.  396,  130 
Pac.  1149,  44  L.  R.  A.  (N.  S.)  38. 
See  also  these  cases  which  uphold 
a  recovery  for  this  species  of  in- 
jury. Missouri  &c.  R.  Co.  v.  Calk- 
ins (Tex.  Civ.  App.),  79  S.  W.  852: 
Mason  City  &c.  R.  Co.  v.  Wolf,  148 
Fed.  961:  Davenport  &  R.  Co.  v. 
Sinnet.  Ill  Til.  App.  75;  Illinois 
Central  R.  Co.  v.  Turner,  194  111. 
575,  62  N.  E.  798,  affirming  97  111. 
App.  219;  Baltimore  Bell  R.  Co.  v. 
Sattlcr,  100  Md.  306.  59  Atl.  654; 
Syracuse  &c.  Co.  v.  Rome  &c.  R. 
Co..  43  App.  Div.  203,  60  N.  Y.  S. 
40,  affirmed  in  168  N.  Y.  650,  61 
N.   E.   1135. 

■"■■•  Cedar  Rapids  &c.  R.  Co.  v. 
Raymond,  2>7  Minn.  204,  2,Z  N.  W. 
704;  Atchison  &c.  R.  Co.  v.  Gou.gh, 
29  Kans.  94;  Mason  v.  Kennebec 
&c.  R.  Co.,  31  Maine  215:  Kittell  v. 
Missisquoi  R.  Co.,  56  Vt.  96;  Silver 
Creek  &c.  Co.  v.  Mangum,  64  Miss. 
682,  2  So.  11,  note  in  85  Am.  St. 
305.  See  also  cases  cited  in  notes 
to  preceding  section. 

•■'6  Kansas  City  &c.  R.  Co.  v. 
Kregelo,  32  Kans.  608,  5  Pac.  15; 
March  v.  Portsmouth  &c.  R.  Co., 
19  N.  H.  372:  Lough  v.  Minneap- 
olis &c.  R.  Co.,  116  Iowa  31,  89 
N.   W.   77.     Under  the   Minnesota 


statute,  the  land-owner  has  no 
right  to  private  crossings  except 
as  reserved  and  defined  by  the 
condemnation  proceedings,  and  the 
assessment  should  be  made  ac- 
cordingly. Cedar  Rapids  &c.  R. 
Co.  v.  Raymond,  ?>7  Minn.  204,  7,:^ 
N.  W.  704.  A  Canadian  court 
holds  that  where  the  value  of  a 
piece  of  land  cut  off  from  the  rest 
of  a  farm  by  a  railroad  is  less  than 
the  cost  of  constructing  a  farm 
crossing,  the  court  may,  in  its  dis- 
cretion, authorize  the  payment  of 
the  value  of  the  land  to  the  owner, 
instead  of  requiring  the  construc- 
tion of  a  crossing.  Martin  v. 
Maine  Cent.  R.  Co.,  Rap.  Jud.  Que., 
19  C.  S.  561.  Dama.ges  awarded 
for  appropriation  of  an  additiona' 
strip  along  the  ri.glit  of  way  have 
been  held  to  cover  damages  inci- 
dent to  temporary  interference 
with  the  land-owner's  right  of 
rrossin.g,  but  not  to  cover  perma- 
nent loss  of  the  crossing.  Pitts- 
burg &c.  R.  Co.  V.  Kearns,  58  Ind. 
App.  694,   108   N.    R.  873. 

■■"  Oregon  &c.  R.  Co.  v.  Barlow, 
3  Ore.  311.  The  jury  may  take  the 
cf)st  of  removing  an  obstruction  to 
the  enjoyment  of  his  property  as 
the  basis  for  caluculating  his  dam- 
ages. Chicago  &c.  R.  Co.  v.  Carey, 
90  111.  514.  Interference  with  ac- 
cess to  rooms  through  a  hall  which 


847 


COMl'KXSATION    AND    DA.MACKS 


§  1262 


tion  of  structures  of  any  kind  in  order  that  the  property  not 
taken  may  be  restored  to  a  condition  for  use,  it  has  been  held 
that  the  cost  of  such  removals  or  erections  may  be  considered  by 
the  jury  in  assessing  damages.^*  But  there  are  well  considered 
("iccisions  to  the  contrary,""  and  in  any  event  a  reasonable  expense 
only  can  be  incurred  for  this  cause,  and  the  owner  will  not  be 
ptTniitU'd  to  C(jllect  as  damages  the  cost  of  improyements  by 
which  his  property  is  rendered  more  valuable  than  it  was  before 
any  part  of  it  was  taken.  So.  where  the  construction  of  the  road 
compels  the  land-owner  to  build  additional  fences,  their  cost  is 
a  proper  element  of  damages,  for  which  compensation  must  be 
made.^"  except  where  the  duty  of  building  fences  is  by  law  im- 


was  torn  down  in  the  construction 
of  the  road,  was  held  such  a  dam- 
age as  to  lessen  their  rental  value 
and  entitle  the  lessees  to  compen- 
sation. iHird  V.  Metropolitan  &c. 
R.  Co.,  L.  R.  17  Q.  B.  Div.  12,  25 
Am.  &  Eng.  R.  Cas.  182. 

38  St.  Louis  &c.  R.  Co.  v.  Mollet, 
59  111.  235;  Chicago  &c.  R.  Co.  v. 
Hock,  118  111.  587,  9  N.  E.  205; 
Commonwealth  v.  Boston  &c.  R. 
Co.,  3  Cush.  (Mass.)  25;  Presbey 
v.  Old  Colony  &c.  R.  Co.,  103 
^fass.  1:  Chase  v.  Worcester,  108 
Mass.  60:  Bemis  v.  Springfield,  122 
Mass.  110;  Forney  v.  Fremont  &c. 
R.  Co.,  23  Nebr.  465,  36  N.  W.  806; 
Easterbrook  v.  Erie  R.  Co.,  51 
Barb.  (N.  Y.)  95;  Price  v.  Milwau- 
kee &c.  R.  Co.,  27  Wis.  98.  In 
Terre  Haute  &c.  R.  Co.  v.  Craw- 
ford, 100  Tnd.  550,  the  court  ap- 
proved an  instruction  by  which  the 
jurj-  were  permitted  to  consider  the 
cost  of  filling  the  remaining  land 
from  two  to  five  feet,  the  entire 
length  of  the  line  appropriated,  as 
an  clement  of  his  damages. 

'»See  Central  Pac.  R.  Co.  v. 
Pearson,  35  Cal.  247;  White  v.  Cin- 


cinnati &c.  R.  Co.,  34  Ind.  App. 
287,  71  X.  E.  276;  Chicago  &c.  R. 
Co.  V.  Knufifke,  36  Kans.  367,  13 
Pac.  582;  ^lississippi  River  Bridge 
Co.  V.  Ring,  58  Mo.  495;  Kansas 
City  V.  Morse,  105  Mo.  510,  16  S. 
W.  893;  St.  Louis  &c.  Ry.  Co.  v. 
Mendensa,  193  Mo.  518,  91  S.  W. 
65;  Schuchardt  v.  Mayor,  53  N.  Y. 
202;  Finn  v.  Providence  Gas  &c. 
Co.,  99  Pa.  St.  631.  This  is  upon 
the  theory  that  he  is  compensated 
for  the  buildings  as  part  of  the 
realty.  In  some  jurisdictions, 
however,  the  owner  is  entitled  to 
remove  the  buildings  and  recover 
the  reasonable  cost  of  removal. 
Sec  as  to  damage  for  separating 
part  of  farm  with  the  building  sep- 
arated from  the  rest.  Prather  v. 
Chicago  &c.  R.  Co.,  221  111.  190.  11 
N.  E.  430. 

4"  St.  Louis  &c.  R.  Co.  V.  .\nder- 
son.  39  Ark.  167;  Sacramento  &c. 
R.  Co.  V.  Moflfatt,  6  Cal.  74;  Cali- 
fornia &c.  R.  Co.  V.  Southern  Pac. 
R.  Co.,  67  Cal.  59,  7  Pac.  123;  Van- 
degrift  v.  Delaware  &c.  R.  Co..  2 
Houst.  (Del.)  287;  St.  Louis  &c. 
R.  Co.  V.   Mitchell.  47  III.  165;  St. 


1262 


RAILROADS 


848 


posed  upon  the  railroad  company."*^     But  it  is  held  that  the  ex- 
pense of  fencing  should  only  be  considered  to  the  extent  that  it 


Louis  &c.  R.  Co.  V.  Kirby,  104  111. 
345;  Leavenworth  &c.  R.  .Co.  v. 
Paul,  28  Kans.  816;  Winona  &c. 
R.  Co.  V.  Waldron,  11  :Minn.  515, 
88  Am.  Dec.  100  and  note;  Crowell 
V.  New  Orleans  &c.  R.  Co.,  61 
Miss.  631;  New  York  &c.  R.  Co.  v. 
Stanley,  35  N.  J.  Eq.  283;  Rensse- 
laer &c.  R.  Co.,  In  re.  4  Paige  (N. 
Y.)  Ch.  553;  Raleigh  &c.  R.  Co.  v. 
Wicker.  74  N.  Car.  220;  Pennsyl- 
vania ttc.  R.  Co.  V.  Bunnell,  81 
Pa.  St.  414;  Greenville  &c.  R.  Co. 
V.  Partlow,  5  Rich.  L.  (S.  Car.) 
428:  note  in  85  Am.  St.  304.  Where 
damages  were  assessed  for  the  cost 
of  fencing  along  the  right  of  way, 
it  was  held  that  the  land-owner,  his 
heirs  and  assigns  became  legall}^ 
bound  to  maintain  fences.  St. 
Louis  &c.  R.  Co.  v.  Mitchell.  47 
111.  165.  In  Northeastern  R.  Co. 
V.  Sineath,  8  Rich.  L.  (S.  Car.)  185. 
it  was  held  that  where  the  road 
passed  through  uncleared  and  un- 
cultivated land,  for  which  no  fences 
would  be  required,  that  no  dam- 
ages for  the  increased  cost  of  fenc- 
ing could  be  awarded.  But  it  would 
seem  that  the  jury  should  have 
considered  the  increased  cost  of 
adapting  the  land  to  cultivation 
(including  the  construction  of 
fences)  as  an  element  of  damages. 
See  Raleigh  &c.  R.  Co.  v.  Wicker, 
74  N.  Car.  220;  Montgomery  &c. 
Co.  v.  Stockton,  43  Ind.  328.  And 
see  generally  Pacific  Coast  R.  Cn. 
V.  Porter,  74  Cal.  261,  15  Pac.  774; 
Newgass  v.  St.  Louis  &c.  R.  Co., 
54  Ark.  140,  15  S.  W.  188;  Jones  v. 
Western   North  Car.  R.  Co..  95  N. 


Car.  328;  Pittsburg  &c.  R.  Co.  v. 
McCloskcy,  110  Pa.  St.  436,  1  Atl. 
555;  Seattle  &c.  R.  Co.  v.  Gilchrist, 
4  Wash.  509,  30  Pac.  738. 

41  Winf)na  Sec.  R.  Co.  v.  Wal- 
dron. 11  Minn.  515,  88  Am.  Dec. 
100;  St.  Joseph  &c.  R.  Co.  v. 
Shambaugh,  106  Mo.  557,  17  S.  W. 
581.  See  also  Indianapolis  &c. 
R.  Co.  v.  Bronson,  172  Ind.  383, 
86  N.  E.  834.  88  N.  E.  594  (cit- 
ing text).  Where  t'.ie  co'npany 
was  held  bound  to  maintain  one- 
half  of  the  fence,  it  was  held 
that  the  cost  of  the  other  half, 
which  would  fall  on  the  land-owner, 
was  properly  included  in  the  as- 
sessment of  damages.  Rensselaer 
&c.  R.  Co.,  In  re,  4  Paige  (N.  Y.) 
553;  Henry  v.  Dubuque  &c.  R.  Co., 
2  Iowa  288,  305.  In  Baltimore  &c. 
R.  Co.  V.  Lansing.  52  Ind.  229,  the 
court  approved  the  following  in- 
struction given  by  the  court  be- 
low: "You  may  also  consider  as 
damages  any  additional  amount  of 
fencing  necessary  to  a  safe  and 
proper  use  of  the  defendant's  im- 
proved farm,  or  fields  already  in- 
closed, as  the  law  does  not  impose 
on  the  company  any  obligation  to 
fence  their  right  of  way,  except  so 
far  as  they  may  choose  to  do  so 
for  the  protection  of  their  own 
interests,  the  law  simply  imposing 
on  them  the  obligation  to  pay  for 
animals  killed  by  them  on  their 
track,  where  it  is  not,  but  might  be, 
securely  fenced."  The  decisions  on 
this  point  vary  greatly  with  the 
fence  laws  of  the  several  states. 
Wh.cre    the    company    is    only    re- 


849 


COMPENSATION    AND    Da:MAGES 


§  1262 


dcjjrt'ciates  the  market  \alue  of  the  reinainini(  laiifh^'-  Any  inter- 
ference with  the  flow  of  water  upon  or  across  the  land  is  an 
element  of  damages  where  the  farm  is  thereby  depreciated  in 
value.'"  Some  of  the  courts  hold  that  damages  to  adjoining 
property  from  the  vibrations  occasioned  by  passing  trains,"  and  ^ 
from  the  annoyance  due  to  the  noise  and  confusion-''  which  they 


quired  to  fence  within  six  montlis, 
the  jury  may  consider  the  conse- 
quences of  keeping-,  the  land  thrown 
open  that  long.  St.  Louis  &c.  R. 
Co.  V.  Kirby,  104  111.  345.  In  Ra- 
leigh ^\;c.  R.  Co.  V.  Wicker.  74  X. 
Car.  220,  the  court  held  that  the 
cost  of  fencing  uncleared  and  un- 
cultivated land,  which  the  law  did 
not  require  the  owner  to  fence, 
could  not  be  included  in  the  dam- 
ages awarded,  basing  its  opinion 
upon  the  fact  that  the  legislature 
had  not  deemed  it  necessary  to  re- 
quire railroads  to  fence  their  roads, 
and  that  the  assessment  of  damages 
for  fences  where  none  were  re- 
quired by  law,  and  none  would,  in 
all  probability,  be  built,  would  im- 
pose upon  them  the  burden  which 
the  legislature  had  failed  to  im- 
pose without  securing  the  benefits 
arising  from  requiring  the  road  to 
be  fenced.  To  the  effect  that  a 
city  in  condemning  for  a  street 
across  a  railroad  is  not  bound  to 
make  compensation  for  fencing, 
flanking  and  the  like  required  of 
the  companJ^  see  Chicago  &c.  R. 
Co.  V.  Chicago,  166  U.  S.  226,  17 
Sup.  Ct.  581.  501,  592,  41  L.  ed.  979, 
and  cases  cited. 

^-  Pennsjdvania  &c.  R.  Co.  v. 
Bunnell,  81  Ta.  St.  414:  Delaware 
&c.  R.  Co.  V.  Burson,  61  Pa.  St. 
369.  Where  the  law  requires  a 
railroad  to  erect  and  maintain  suit- 


able cattle  guards  and  wing  fences 
at  the  points  of  entrance  upon  land 
through  which  it  has  obtained  a 
right  of  way,  the  land-owner  may 
recover  the  value  of  crops  de- 
stroyed by  reason  of  its  neglect 
to  perform  this  duty.  Houston  &c. 
R.  Co.  V.  Adams,  63  Tex.  200. 

'*■■'  Pflegar  v.  Hastings  &c.  R.  Co., 
28  ^linn.  510,  11  ,N.  W.  72. 

*4  New  York  Central  &c.  R.  Co., 
In  re,  15  Hun  (N.  Y.)  63;  Hender- 
son V.  New  York  Central  R.  Co., 
17  Hun  (N.  Y.)  344;  Croft  v.  Lon- 
don &c.  R.  Co.,  113  Eng,  C.  L. 
(3  B,  &  S.)  435:  Penny,  In  re,  90 
Eng.  C.  L.  660:  Cohen  v.  Cleveland, 
4a_aLio~St.   190. 

■»•'•  Little  Rock  &c.  R.  Co.  v.  Allen, 
41  .-\rk.  431;  Mix  v.  Lafayette  &c. 
R.  Co.,  67  111.  319;  Chicago  &c.  R. 
Co.  V.  Nix,  137  111.  141,  27  N.  E. 
81;  Wilson  v.  Des  Moines  &c.  R. 
Co.,  61  Iowa  509,  25  N.  W.  754; 
Bangor  &c.  R.  Co.  v.  IMcComb,  60 
Maine  290:  Blue  Earth  Co.  v.  St. 
Paul  &c.  R.  Co.,  28  Minn.  503,  11 
N.  W.  12,;  Ode  v.  Manhattan  &c. 
R.  Co.,  56  Hun  199,  9  N.  Y.  S.  .338; 
Duyckinck  v.  New  York  El.  R.  Co., 
125  N,  Y.  710,  26  N.  E.  755:  White 
V.  Charlotte  &c.  R.  Co.,  6  Rich.  L. 
(S.  Car.)  47:  Gulf  &c.  R.  Co.  v. 
Eddins.  60  Tex.  656:  Gainesville  R. 
Co.  V.  Hall,  78  Tex.  169,  14  S.  W. 
2.59.  9  L.  R.  A.  298  and  note.  2? 
.\m.  St.  42  and  note.     Contra  New 


y 


S  1 2(52 


KAILROAOS 


850 


'occasion,  may  be  recovered  liv  the  property  holder. ■'•     The  in- 
creased danger  from  fire  emitted  from  the  h)Comotives.'"  the  in- 


Orlcans    &o.    R.    Co.   v.   Barton.   43 
I. a.  .'\nn.  171.  9  So.  19:  Republican 
\'allcy  &c.  R.  Co.  v.  Linn.  15  Nebr. 
234.    18    X.    W.    35:    Hammersmith 
&c.  R.  Co.  V.  P.rand.  T,.  R.  4  IT.  ].. 
Cas.    171;    Glasgow    U.    R.    Co.    v. 
Hunter.  L.  R.  2  H.  L.  Sc.  78.     See 
St.   Louis   &c.   R.   Co.  V.   TTaller.  82 
111.    208:    :\!etropo!itan    &c.    El.    R. 
Co.  V.   Gall.  100  111.  App.  323;  Illi- 
nois Central  R.  Co.  v.  School  Trus- 
tees. 212  111.  406.  72  N.  E.  39.    The 
lawful    construction    and    operation 
ot'   a    horse    railway   in    the    streets 
of  a  city  does  not  entitle  the  owner 
of     property     which     is     damai?ed 
thereby     to     compensation     unless 
special      damage      is      alleged     and 
shown;    and    for    this   purpose    evi- 
dence  is   admissible  to   prove    that 
the   damage  was   caused   by  noise, 
smoke,  dust  and  the  like,  but  these 
must  have  resulted  in   actual  dam- 
age,  and   not   merely   in   annoyance 
or      inconvenience.        Campbell     v. 
Metropolitan  St.  R.  Co..  82  Ga.  .320. 
9  S.   E.    1078.     Inconvenience   of  a 
permanent    nature,    such    as    rattle 
of   train,    noise    of   whistle,    smoke, 
etc..  are  elements  of  damage.  Bow- 
en    V.    Atlantic    &c.    R.    Co..    17    S. 
Car.  574.     See  also  Logan  v.  Bos- 
ton  El.  R.   Co.,   188  Mass.  414,  74 
N.  E.  663.     See  ante.  §  1261. 

■*•'  But  while  injuries  of  this  class 
are  admitted  as  an  element  for  con- 
sideration in  estimating  the  depre- 
ciation in  value  of  the  residue  of 
jiropcrtj-.  part  of  which  has  been 
taken,  many  authorities  refuse  to 
rIIow  compensation  therefor,  when 
unaccompanied  by  any  physical  in- 


jury   or    taking.      Bordentown    &c. 
Turiip.  Co.  v.  Camden  &c.  R.  Co.. 
17  X.  J.   L.  314:    1  lamnicrsmith   &c. 
R.  Co.  V.  Brand,  L.  R.  4  II.  L.  171. 
1..   R.  2  Q.   R.  22.3,   L.   R.  1   Q.   B. 
130;  Duke  of  Buccleuch  v.   ?\Ietro- 
noiitan    Board    of   Works.    L.    R.    5 
Exch.  221.      Under  the  Texas  con- 
stitutional  provision   that   "no   per- 
son's property  shall  be  taken,  dam- 
aged,  or   destroyed   for   or   applied 
to     public     use     without     adequate 
compensation  being  made,"  one  can 
recover  for  diminution  in  the  value 
of    his    property    arising    from    the 
noise,    smoke,    and    vibration    pro- 
duced  by   the   operation    of   a   rail- 
road near  the  property,  though  not 
along   a    public    highway.      Gaines- 
ville   &c.    R.    Co.    V.    Hall.    7^    Tex. 
169.   14  S.  W.  259.  9   L.    R.  A.  298 
and   note.  22  Am.   St.  42  and   note. 
*"  St.  Louis  &c.  R.  Co.  V.  Spring- 
field &c.  R.  Co..  96  III.  274:  Swin- 
ney  v.  Eort  Wajme  &c.  R.  Co..  59 
Tnd.   205:   Lafayette   &c.   R.    Co.   v. 
Murdnck.  68  Ind.  137;  Kansas  City 
&c.  R.  Co.  V.  Kregelo.  32  Kans.  608, 
5  Pac.  IS;  Pierce  v.  Worcester  &c. 
R.    Co..    105    Mass.    199;    Colvill   v. 
St.  Paul  &c.  R.  Co..  19  Minn.  283; 
Adden  v.  White  Mountains  &c.  R. 
Co..  55  N.  LI.  413,  20  Am.  Rep.  220; 
Utica  &c.   R.    Co..   In   re,   56   Barb. 
(N.  Y.)  456;  Oregon  &c.  R.  Co.  v. 
Barlow.    3    Ore.    311;    Wilmington 
&c.   R.    Co.   V.   Staufifer.   60  Pa.   St. 
374.    100    Am.    Dec.   574.      See   also 
Cleveland  &c.  R.  Co.  v.  Smith.  177 
Ind.  524.  97  N.  E.  164;  Beckman  v. 
Lincoln   &c.   R.   Co.',  85  Nebr.  228, 
122   N.   W.   994,   133   Am.   St.   655; 


851 


COMPENSATION    AND    DA.MAliES 


§1262 


Idaho  &c.  R.  Co.  v.  Coey,  IZ  Wash. 
291,  131  Pac.  810.  St.  Louis  Belt 
&c.  R.  Co.  V.  Mendonsa,  193  Mo. 
518,  91  S.  W.  65  (the  depreciation 
in  value  of  the  part  not  taken  be- 
cause of  the  danger  from  fire  but 
not  the  mere  possibility  of  the  de- 
struction of  buildings);  note  in  85 
Am.  St.  308.  Tn  Ontario  &c.  R.  Co.. 
Tn  re.  and  Taylor.  6  Out.  338.  17 
km.  &  Eng.  R.  Cas.  100,  it  was 
held  that  the  greater  liability  to 
injury  bj^  fire  by  reason  of  the 
working  of  the  railway,  are  too 
remote  contingencies  to  be  taken 
into  consideration  in  estimating  the 
value  of  the  land  taken  where  there 
are  no  buildings  to  be  endangered. 
In  Lance  v.  Chicago  &c.  R.  Co.,  57 
Iowa  636,  11  N.  W.  612,  the  court 
held  that  it  was  error  to  admit 
evidence  of  the  value  of  a  grove 
tlirough  which  the  road  was  laid 
out,  and  of  a  dwelling-house  stand- 
ing on  the  opposite  side  of  the 
grove,  to  which  it  was  claimed  that 
fire  could  run  upon  the  dry  leaves 
of  the  grove.  The  court  "said: 
"The  compensation  allowed  for 
right  of  way  should  be  direct  and 
proximate,  and  not  remote  and 
contingent  .upon  circumstances 
which    may   or   may   not   transpire. 

It  is  plain  that  no  estimate 

can  be  made  in  the  way  of  compen- 
sation for  the  value  of  the  proper- 
ty which  may  be  destroyed  by  fire 
and  without  the  fault  of  the  rail- 
road companJ^  The  most  that  can 
be  claimed  is  that  it  is  competent 
to  take  into  consideration  the  risk 
of  fire  set  out  by  the  defendant 
without  its  fault,  and  by  reason  of 
the  operation  of  the  road  through 
the    premises.      But    this    risk    or 


hazard  or  exposure  of  the  property 
is  an  entirely  different  question 
from  that  involved  in  its  destruc- 
tion by  fire  without  fault  of  the 
company.  In  the  one  case,  while 
the  risk  may  somewhat  decrease 
the  value  of  the  property,  and  is  a 
legitimate  consideration  for  what 
it  may  be  worth,  in  fixing  the  com- 
pensation to  the  owner,  in  the 
other  case  the  destruction  of  build- 
ings, groves,  or  the  like,  by  fires, 
is  a  field  of  inquiry  so  remote  and 
contingent  as  to  be  without  and 
beyond  any  range  of  damages 
known  to  the  law.  Of  course,  it 
will  be  understood  that  we  are 
treating  of  such  risks  and  hazard 
from  fire  as  result  from  the  opera- 
tion of  the  road  in  such  a  manner 
that  if  fire  should  escape  there 
would  be  no  liability  against  the 
railroad  company.  For  its  negli- 
gence it  would  be  liable  to  the 
owner,  and  this  element  should 
not  be  taken  into  account  in  esti- 
mating the  compensation."  For 
other  cases  in  which  prospective 
damages  from  fires  were  held  not 
a  proper  element  for  consideration 
by  the  jury  see  Wilmington  &c.  R. 
Co.  V.  StaufTer,  60  Pa.  St.  374.  100 
.\m.  Dec.  574;  Patten  v.  Northern 
Central  R.  Co.,  ZZ  Pa.  St.  426,  75 
Am.  Dec.  612;  Lehigh  Valley  R. 
Co.  V.  Lazarus,  28  Pa.  St.  203;  Un- 
ion Village  &c.  R.  Qo.,  In  re,  53 
P.:n-b.  (X.  Y.)  457;  Rodemacher  v. 
Milwaukee  &c.  R.  Co.,  41  Iowa 
297,  20  Am.  Rep.  592.  Where  the 
buildings  on  a  tract  of  land  are 
at  such  a  distance  that  there  is  no 
real  imminent  danger  from  fire 
such  danger  can  not  be  considered. 
Jones  V.  Chicago  &c.  R.  Co.,  68  111. 


S1262 


RAILROADS 


852 


creased  cost  of  insuring"  Imildiii^s  and  their  contents,''*  injn-'ies 
to  lousiness  carried  on  in  the  i)ro])ert_\'  taken/''  the  destruction  of 
valuable  accessories — as  for  examj^le  a  frontage  on  another  rail- 
road ;■''"  the  obstruction  of  ingress  to  and  egress  from  the  prem- 


/380;  Hatch  v.  Cincinnati  &c.  R. 
''  Co.,  18  Ohio  St.  92;  Proprietors  of 
Locks  and  Canals  v.  Nashua  &c. 
R.  Co.,  10  Cush.  (Mass.)  385.  The 
fact  that  the  railroad  is  responsible 
for  all  damages,  whether  resulting 
from  negligence  or  not.  may  prop- 
erly be  taken  into  consideration  by 
the  jury  in  estimating  the  amount 
of  compensation.  Bangor  &c.  R. 
Co.  V.  McComb,  60  Maine  290.  Rut 
even  where  the  railroad  is  so  lia- 
ble, depreciation  in  the  value  of 
property  resulting  from  apprehen- 
sion of  fire  has  been  held  a  proper 
element  of  damages.  Keithsburg 
R.  Co.  V.  Henry,  79  111.  290;  Adden 
V.  White  Mountains  R.  Co.,  55  N. 
H.  413,  20  Am.  Rep.  220;  Pierce  v. 
Worcester  R.  Co.,  105  Mass.  199; 
Sommerville  R.  Co.  v.  Doughty,  22 
N.  J.  L.  495;  Bangor  R.  Co.  v.  Mc- 
Comb,  60  J\laine  290.  But  see  Illi- 
nois &c.  R.  Co.  v.  Freeman,  210  111. 
270,  71  N.  E.  444,  with  which  com- 
pare Chicago  Southern  R.  Co.  v. 
Xolin,  221  111.  367.  11  N.  E.  435. 

48  Wooster  v.  Sugar  Run  V.  R. 
Co..  57  Wis.  311.  15  N.  W.  401;  La- 
fayette &c.  R.  Co.  v.  Murdock.  68 
Tnd.  137;  Webber  v.  Eastern  R. 
Co..  2  ^letc.  (Mass.)    147. 

*^  South  Carolina  R.  Co.  v.  Stein - 
er,  44  Ga.  546;  St.  Louis  &c.  R.  Co. 
V.  Capps,  67  111.  607,  72  111.  188; 
Lafayette  &c.  R.  Co.  v.  Murdock, 
68  Ind.  137;  Boston  &c.  R.  Co.  v. 
Old  Colony  R.  Co.,  12  Cush. 
''Mass.)  605.  3  Allen  142;  Grand 
Papids  &c.  R.  Co.  v.  Weiden,  70 
Mich.  390,  38  N.  W.  294;  Western 


Pennsylvania  R.  Co.  v.  Hill,  56  Pa. 
St.  460;  Driver  v.  Western  Union 
R.  Co.,  32  Wis.  569,  14  Am.  Rep. 
726;  Cameron  v.  Charing  Cross  R. 
Co.,  16  C.  B.  N.  S.  430;  Wood  v. 
Stourbridge  R.  Co.,  16  C.  B.  N.  S. 
222.  In  Jacksonville  &c.  R.  Co.  v. 
Walsh,  106  111.  253,  the  court  said: 
"The  purposes  for  which  (the 
property)  was  used  and  designed, 
its  location  and  advantages  as  to 
situation  were  proper  matters  of 
consideration  by  the  jury;  but  the 
profits  of  the  business  of  the  past 
and  conjectural  profits  for  the  fu- 
ture were  too  speculative  and  un- 
certain upon  which  to  ascertain  the 
market  or  cash  value  of  the  prop- 
erty." See  also  Becker  v.  Phila- 
del])hia  &c.  R.  Co.,  177  Pa.  St.  252, 
35  Atl.  617,  35  L.  R.  A.  583;  Ed- 
mands  v.  Boston.  108  Mass.  535; 
Lake  Shore  &c.  R.  Co.  v.  Cincin- 
nati &c.  R.  Co.,  30  Ohio  St.  604; 
Richmond  &c.  R.  Co.  v.  Chamblin, 
100  Va.  401,  41  S.  E.  750.  But  see 
Bailey  v.  Boston  &c.  Corp..  182 
Mass.  537,  (yd  N.  E.  203,  where  it  is 
held  that  in  the  absence  of  special 
statutory  provisions,  the  loss  of 
business  as  such,  arising  from  the 
taking  of  property  adjoining  that 
on  which  the  business  was  con- 
ducted for  a  right  of  way  can  not 
be  considered.  For  the  extent  and 
limits  of  the  general  doctrine  see 
1  Elliott  Roads  &  Sts.  (3rd  ed.), 
§  287. 

•-■"Wray  v.   Knoxville  &c.  R.  Co., 
113  Tcnn.  544,  82  S.  W.  471. 


853 


COMPENSATION    AND    DAMAGES 


§1262 


ises;''^  the  destruction  of  mineral  wells  or  springs  j'^^  inconven- 
ience and  increase  of  ex])ensc  of  usins^  premises  not  taken  ;""''  and 


51  Cincinnati  &c.  R.  Co.  v.  Miller, 
36  Ind.  App.  26,  72  N.  E.  827.  See 
also  Puget  Sound  &c.  Ry.  Co.  v. 
Foster  (Wash.),  146  Pac.  154 
(where  tlic  right  of  way  con- 
demned cut  a  county  road  at  such 
an  acute  angle  that  access  to  the 
road  was  cut  off  for  about  three 
hundred   feet). 

52  Kossler  v.  Pittsburg  &c.  R.  Co., 
208  Pa.  St.  50,  57  Atl.  66.  The 
value  of  a  salt  water  well  on  the 
premises  is  to  be  determined  not 
by  the  profits  in  operating  the 
same,  but  from  its  selling  value. 
Ibid.  See  also  Smith  v.  Common- 
wealth, 210  Mass.  259,  96  N.  E.  666. 
Aim.  Cas.  1912C.  1236  and  note: 
And  for  distinction  see  ante,  § 
1234.  Compare  also  Cleveland 
&c.  R.  Co.  V.  Hadley,  179  Ind.  429, 
101   N.  E.  473. 

53  Richmond  &c.  R.  Co.  v.  Cham- 
blin,  100  Va.  401,  41  S.  E.  750;  Illi- 
nois Cent.  R.  Co.  v.  Turner,  194 
111.  575,  62  N.  E.  793;  Prather  v. 
Chicago  Southern  R.  Co.,  221  111. 
190,  77  N.  E.  430;  Chicago  &c.  R. 
Co.  V.  Curless,  27  Ind.  App.  306, 
60  N.  E.  467.  Speculative  opin- 
ions as  to  the  amount  of  business 
that  might  be  carried  on  in  the 
property,  and  the  probable  profits 
therefrom  have  been  held,  in  many 
cases,  incompetent  as  evidence 
from  which  the  jury  could  assess 
damages.  Mount  Washington 
Road  Co.,  In  re,  35  N.  H.  134: 
Cobb  V.  Boston,  109  Mass.  438: 
Eddings  v.  Seabrook.  12  Rich,  L. 
(S.  Car.)  504:  Ricket  v.  Metropoli- 
tan   R.    Co..   5    Best    &   S.    149,    117 


Kng.  C.  L.  149;  Union  Village  &c. 
K.  Co..  Matter  of,  53  Barb.  (N.  Y.) 
457.  The  rule  is  laid  down  by  the 
T.ord  Chancellor  in  Metropolitan 
Board  of  Works  v.  McCarthy,  L. 
R.  7  Eng.  &  I.  App.  Cas.  243,  253, 
as  follows:  "That  where  by  the 
cf)nstruction  of  works  there  is  a 
physical  interference  with  any 
right,  public  or  private,  which  the 
owners  or  occupiers  of  property 
are  by  law  entitled  to  make  use  of, 
in  connection  with  such  property, 
and  which  right  gives  an  addi- 
tional market  value  to  such  prop- 
erty, apart  from  the  uses  to  which 
any  particular  owner  or  occupier 
might  put  it,  there  is  a  title  to  com- 
pensation, if.  by  reason  of  such 
interference,  the  property,  as  a 
property,  is  lessened  in  value." 
Evidence  as  to  the  amount  of  busi- 
ness that  was  or  could  be  done  up- 
on the  property  taken,  or  of  the 
profits  gained  from  past  business, 
rr  that  could  probably  be  made  in 
the  future  is  inadmissible.  Jack- 
sonville &c.  R.  Co.  v.  Walsh.  106 
111.  253.  Under  the  constitution 
and  laws  of  Kentucky,  the  jury 
may  consider  as  an  element  of 
damage,  the  inconvenience  and  loss 
resulting  to  the  owner  of  property 
condemned  from  being  deprived  of 
his  home  and  established  place  of 
business.  Covington  &c.  R.  Co.  v. 
Piel.  87  Ky.  267,  8  S.  W.  449.  The 
increased  cost  of  working  a  mine 
i)y  tunnelling  under  the  track  is  a 
proper  element  of  damages.  Mid- 
land R.  Co.  V.  Miles.  L.  R.  30  Chan. 
Div.   634. 


^-  1262 


RAILROADS 


854 


tlu'  decreased  rental  \aluc  of  buildings.'''''  occasioned  l)y  the  con- 
struction of  a  railroad,  have  all  been  held  proper  subjects  for 
compensation  in  damages. ■"'''  The  use  to  which  the  land  taken  is 
to  be  put,  as  for  the  running  of  railway  trains,  with  its  prol^able 
effect  upon  the  plaintiff's  i)roperty,  is  also  to  be  considered  in 
many  jurisdictions  by  the  jury  in  assessing  his  damages. ^^ 
Buildings  on  the  right  of  Avay  are  regarded,  by  some  courts,  as  a 
])art  of  the  freehold  and  to  be  ])aid  for  as  such,  and  where  this  is 
the  case  there  is  a  presumption  that  such  damages  are  included 
in  the  award."     One  purchasing  land  over  which  a  right  of  way 


^'*  Lafayette  &c.  R.  Co.  v.  IMur- 
dock,  68  Ind.  137.  So  also  the  loss 
of  rents  occasioned  by  the  con- 
struction of  the  work.  Henderson 
V.  New  York  &c.  R.  Co.,  17  Hun 
(N.  Y.)  344,  78  N.  Y.  423;  Pitts- 
burgh &c.  R.  Co.  V.  Rose,  74  Pa. 
St.  362.  The  fact  that  the  plaintiff 
continues  to  occupy  the  property 
is  no  defense  to  a  claim  for  a  de- 
crease in  its  rental  value  due  to  the 
railroad.  Scott  v.  Indianapolis  &c. 
R.  Co.  (Marion  Sup.  Ct.  Ind.).  10 
Am.  &  Eng.  R.  Cas.  189. 

•''5  In  Chicago  &c.  R.  Co.  v.  Sta- 
ley,  221  111.  405,  77  N.  E.  437,  an 
instruction  authorizing  the  jury,  in 
assessing  damages,  to  consider 
danger  of  stock  being  killed  or  in- 
jured in  the  future,  damage  from 
fire  by  passing  engines,  and  all 
other  damages  that  the  jury  might 
believe  were  reasonably  to  be  ex- 
pected to  ensue,  was  held  erro- 
neous for  failure  to  confine  the 
jury's  consideration  of  such  mat- 
ters to  their  effect  on  the  market 
value  of  the  land  not  taken,  .ind 
■an  instruction  that,  in  estimating 
the  damages  to  adjacent  land  not 
taken,  the  jury  should  consider  the 
depreciation  in  value  of  such  land 
not  taken  for  any  present  or  future 


use  to  which  the  land  might  con- 
veniently and  lawfully  be  put  on 
account  of  such  proposed  railroad, 
and  should  allow  such  sum  as  the 
property  taken  was  reasonably 
worth,  considering  its  present  use 
and  any  use  to  which  it  may  rea- 
sonably be  put  in  the  future,  was 
held  erroneous;  and  the  court  said 
that  the  only  future  use  that  could 
properly  be  considered  was  that  to 
which  the  land  was  at  present 
adapted  and  which  affected  its  pres- 
ent  market  value. 

^'^  Kucheman  v.  Chicago,  C.  &  D. 
R.  Co.,  46  Iowa  366;  Atchison  &c. 
R.  Co.  V.  Blackshire,  10  Kans.  477; 
Bangor  &c.  R.  Co.  v.  McComb,  60 
?.[aine  290;  Pacific  R.  Co.  v.  Chrys- 
lal,  25  Mo.  544;  Utica  &c.  R.  Co., 
.Matter  f)f,  56  Barb.  (N.  Y.)  456. 
Cleveland  &c.  R.  Co.  v.  Ball,  5 
Ohio  St.  568.  Contra,  Prospect 
Park  &c.  R.  Co.,  Matter  of.  13  Hun 
(N.  Y.)  345;  Black  River  &c.  R.  Co. 
v.  Barnard,  9  Ilun  (N.  Y.)  104; 
.'Mbany  Northern  R.  Co.  v.  Lans- 
ing, 16  Barb.  (N.  Y.)  68.  See  gen- 
erally Hamilton  v.  Pittsburg  &c.  R. 
Co.,  190  Pa.  St.  51.  42  Atl.  369,  51 
L.   R.  A.  319  and  note. 

■'^'' White  V.  Cincinnati  &c.  R.  Co., 
34  Ind.  App.  287.  71  N.  E.  276. 


8o5  COMPENSATION    AND    DA-AFAGES  §  1263 

lias  alrcad}'  ht'cn  taken  by  a  railroad  C(»ni])any  is  clearly  enlilled 
to  nothiiii*"  for  the  incidental  injury  to  the  land  by  reason  of  the 
right  of  way.  His  measure  of  damages,  when  he  is  entitled  t(j 
recover  at  all.  is  simply  the  value  of  the  grotmd  taken. "''^ 

§  1263  (996a).  Measure  of  damages  for  property  of  railroad 
company  taken  for  other  public  use — Railroad  and  street  rail- 
road crossings. — .A  railroad,'"  or,  according  to  some  decisions; 
street  railroad  coui|)any,""  intending  to  cross  railroad  tracks 
rightfully  maintained  in  a  pu])lic  street  can  not  effect  the  cross- 
ing until  it  has  first  compensated  the  railroad  company  for  the 
resulting  damages.  In  the  case  of  a  street  railroad  crossing  it 
has  been  held  that  these  damages  will  include  ])ay  lor  the  con- 
struction of  the  crossing,  and  any  change  in  the  tracks  necessitat- 
ed b}-  the  crossing,  but  not  damages  for  the  impairment  of  the 
easement  in  the  street.''^  In  most  jurisdictions  it  is  held  that  a 
street  railway  is  not  an  additional  burden.  The  subject  of  com- 
pensation for  railroad  crossings  is  discussed  in  a  later  volume  to 
which  the  reader  is  referred. "- 

§  1264  (996b).  Measure  of  damages  for  property  of  railroad 
company  taken  for  other  public  use — Telegraph  lines. — A  tele- 
graph company  can  not  enter  upon  a  railroad  right  of  way  and 
construct  its  lines  until  it  has  paid  a  just  compensation  therefor 
which,  it  is  held,  is  to  be  ascertained  by  resorting  to  the  state 
laws  relative   to  eminent  domain  even   though   the   companv   is 

5s  Whitecotton    v.    St.    Louis    &c.  liability   to   accident,   and    the   flag- 

R.  Co.,  104  Mo.  App.  65,  78  S.  W.  ying  of  trains  at  crossings   as   re- 

318.     See  post,  §  1272;  also  Bridges  (juired   by   law,    did   not   constitute 

v.  Southern  Ry.,  86  S.  Car.  267,  68  elements    of  damage.    Kansas    City 

S.    E.    551,   Ann.    Cas.    1912A,    1066  &c.  R.  Co.  v.  Louisiana  &c.  R.  Co., 

and    note.  116  La.  178.  40  So.  627. 

■"'0  Atlantic  &c.  R.  Co.  v.  Seaboard  «'^  Central.   Passenger    R.    Co.    v. 

&c.   R.   Co.,   116   Ga.  412,  42  S.  E.  Philadelphia    &c.    R.    Co.,    95    Md. 

761.     Where   a    railroad    company,  428,  52  .A.tl.  752. 

in    condemning   the   right   to   cross  "i  Central    Passenger    R.    Co.    v. 

witli    its    track    spur   tracks    of    an-  I'liiladelphia    &c.    R.    Co.,    95    j\[d. 

•  nlicr    railroad,    takes    nothing    l)ut  428.  52  Atl.  752. 

the    easement   of   crossing,    the    in-  '•-  F^ost,    §    1607.      See    also    ante, 

torruption     in     business,     increased  §   1234. 


H264 


RAILROADS 


856 


authorized  by  federal  laws  to  construct  the  line  upon  post 
roads. ''^  Speaking  generally  the  measure  of  damages  is  the  de- 
crease in  the  value  of  the  right  of  way  for  railroad  purposes,^* 
and  these  damages  are  generally  regarded  as  merely  nominal,  or 
practically  so,  since  the  telegraph  company  does  not  necessarily 
and  appreciably  interfere  with  the  right  of  way  or  the  operation 
of  the  railroad*^^  but,  on  the  contrary,  is  usually  a  convenience 
rather  than  a  detriment.  But  there  may  be  cases  in  which  there 
is  such  interference  of  diminution  in  the  value  of  the  use  of  the 
remainder  of  the  right  of  way.  or  of  the  railroad  company's  own 
telegraph  or  telephone  system,  or  the  like,  and  in  such  cases  the 
damages  are  not  merely  nominal.  Indeed,  some  courts  have  held 
that  something  more  than  nominal  damages  should  usually  be 
awarded.®*^  The  annoyance  and  inconvenience  of  a  railroad  from 
the  construction  and  operation  of  the  telegraph  lines  upon   its 


63  Postal  Tel.  Cable  Co.  v.  Ore- 
gon &c.  R.  Co.,  23  Utah  474,  65 
Pac.  735,  90  Am.  St.  705;  Atlantic 
&c.  Tel.  Co.  V.  Chicago  &c.  R.  Co., 
6  Bis.  158.  See  also  Kester  v. 
Western  Union  Tel.  Co.,  108  Fed. 
926;  Western  Union  Tel.  Co.  v. 
Pennsylvania  R.  Co.,  120  Fed.  362, 
123  Fed.  33;  Canadian  Pac.  R.  Co. 
V.  Moosehead  Tel.  Co.,  106  Maine 
363,  76  Atl.  885,  29  L.  R.  A.  (N.  S.) 
703  and  note. 

6*  Postal  &c.  Co.  V.  Oregon  &c. 
R.  Co.,  23  Utah  474,  65  Pac.  735, 
90  Am.  St.  705;  Cleveland  &c.  R. 
Co.  V.  Ohio  &c.  Cable  Co.,  68  Ohio 
St.  306,  67  N.  E.  890,  62  L.  R.  A. 
941;  Atlantic  &c.  R.  Co.  v.  Postal 
&c.  Co.,  120  Ga.  268,  48  S.  F.  15. 
See  also  Mobile  &c.  R.  Co.  v. 
Postal  Tel.  Co.,  120  Ala.  21.  24  So. 
408;  Western  &c.  R.  Co.  v.  West- 
ern Union  Tel.  Co.,  138  Ga.  420, 
75  S.  E.  471.  42  L.  R.  A.  (N.  S.) 
225:  Illinois  Tel.  &c.  Co.  v.  Meine, 
242  111.  568,  90  N.  F.  230.  26  T,.  R. 
A.  (K.  S.)   189. 


^'s  Postal  &c.  Co.  V.  Oregon  &c. 
R.  Co.,  23  Utah  474,  65  Pac.  735,  90 
Am.  St.  705;  Ohio  Postal  Tel.  Co. 
V.  Cleveland  &c.  R.  Co.,  8  Ohio  N. 
P.  121,  11  Ohio  S.  &  C.  P.  Dec.  52. 
See  also  IMobile  &c.  R.  Co.  v. 
Postal  Tel.  Co.,  101  Tenn.  62.  46 
S.  W.  571.  41  L.  R.  A.  403;  Chi- 
cago &c.  R.  Co.  V.  Chicago,  166  U. 
S.  248,  17  Sup.  Ct.  992,  41  L.  ed. 
989;  Postal  Tel.  &c.  Co.  v.  Oregon 
Short  Line  R.  Co.,  114  Fed.  787: 
Postal  Tel.  Cable  Co.  v.  Oregon 
Short  Line  R.  Co.,  104  Fed.  623, 
111  Fed.  842;  St.  Louis  &c.  R.  Co. 
V.  Postal  Tel.  Co.,  173  111.  508.  51 
N.  E.  382:  Gulf  &c.  R.  Co.  v.  South- 
western Tel.  &c.  Co.  (Tex.  Civ. 
App.),  52  S.  W.  87. 

66  Mobile  &c.  R.  Co.  v.  Postal 
&c.  Co.,  76  Miss.  731,  26  So.  370, 
45  L.  R.  A.  223:  American  Tel.  &c. 
Co.  v.  St.  Louis  &c.  R.  Co.,  202 
Mo.  656,  101  S.  W.  576:  Louisville 
&c.  R.  Co.  V.  Western  L^nion  Tel. 
Co.,  249  Fed.  385. 


857  COMTENSATIUN    AND    DAMAGKS  §  1265 

ris^ln  i)f  way,  to  warrant  the  allowance  of  damages  therefor,  must 
he  real  and  such  as  will  interfere  with  the  operation  of  the  rail- 
road."' Thus,  on  the  ground  of  remoteness,  it  has  been  held  that 
the  jury  could  not  consider  as  elements  of  damage  such  items,  as 
the  danger  of  poles  falling  across  the  tracks,****  the  added  expense 
of  burning  grass  on  the  right  of  way  on  account  of  the  position 
oi  the  poles,"^  the  vague  suggestion  that  at  some  future  date  the 
railroad  company  might  lay  additional  tracks  or  build  structures 
f(-r  railroad  purposes  on  the  right  of  way.'"  the  benefit  the  rail- 
road company  might  derive  from  a  contract  witii  another  tele- 
graph company  already  occupying  its  right  of  way.'' 

§  1265  (996c).  Measure  of  damages  for  property  of  railroad 
company  taken  for  public  use — Streets  and  highways. — Where 
land  is  taken  from  the  right  of  way  for  a  street  or  road  the  rail- 
road company  is  entitled  to  compensatory  damages  properly 
shown  and  not  mere  nominal  damages.'-  And  it  is  said  to  matter 
not  whether  the  right  of  the  railroad  company  in  the  land  was  a 
mere  easement  or  a  fee-simple  title.  "It  had  acquired  its  right  by 
its  own  condemnation  proceedings  and  was  entitled  to  the  un- 
interrupted use  and  enjoyment  of  the  right  of  way,  subject  only, 
as  all  property  is,  to  the  right  of  eminent  domain  ;  and,  when  even 
a  small  portion  of  the  land  composing  its  right  of  way  is  taken 
from  it  and  dedicated  to  another  and  different  public  use,  actual 
and  not  nominal  damages  should  be  allowed."'''     On  the  question 

67  Atlantic    &c.   R.   Co.  v.    Postal  highway  crossings  where  the  stat- 

&c.   Co.,   120  Ga.  268,  48  S.   E.   15.  ute   requires  the  company  to  keep 

6s  Atlantic   &c.    R.    Co.  v.    Postal  and    maintain    such    crossings    and 

&c.   Co.,   120  Ga.  268,  48  S.   E.   15.  dispenses  with  compensation.     See 

69  Postal   &c.  Co.  V.  Oregon  &c.  New  York   &c.   R.   Co.  v.  Rhodes, 

R.   Co.,  23  Utah  474,  65  Pac.   735,  171  Ind.  521,  86  N.  E.  840,  24  L.  R. 

90  Am.  St.  705.  A.  (N.  S.)  1225.     The  general  rule 

"0  Atlantic    &c.   R.   Co.   v.    Postal  in  such  cases,  as  shown  in  the  note 

&c.  Co.,  120  Ga.  268,  48  S.  E.  15.  referred  to,  is  that  compensation  is 

71  .\tlantic    &c.   R.   Co.   v.   Postal  required  in  the  absence  of  such  a 

&c.  R.  Co.,  120  Ga.  268,  48  S.  E.  15.  statute   but   that    such    a   statute   is 

'-  }klissouri   Pac.    R.   Co.  v.    Cass  constitutional     and     may    dispense 

Co..  76  Nebr.  396,   107  N.  W.  773.  with  compensation. 

See  also   p.)st.   §§   1571.    1572.     We  "  ^ilissouri   Pac.    R.   Co.    v.    Cass 

are     not    here    referring    to    mere  Co.,  76  Nebr.  396,  107   N.  W.  773. 


^  12(r) 


K'AILKOADS 


858 


ol"  the  measure  vi  daniai^es  the  Supreme  Court  of  the  United 
States  has  said:  "The  \ahie  to  the  raih-oad  company  of  that 
which  was  taken  from  it  is,  as  we  have  said,  the  difference 
l)etween  the  value  of  the  right  to  the  exchisive  use  of  the  kind  in 
question  for  the  ])urposes  for  which  it  was  being  used,  and  for 
\^  hich  it  was  always  likely  to  be  used,  and  that  value  after  the 
city  acquired  the  privilege  of  participating  in  such  use  by  the 
opening  of  a  street  across  it,  leaving  the  railroad  tracks  un- 
touched."'^ i'lu-  railroad  company  has  also  been  held  entitled 
to  damages  for  improvements  it  has  placed  in  the  streets  which 
must  be  removed  to  permit  the  public  to  use  the  street,"^  and  for 
the  expense  of  changes  in  the  tracks  made  necessary  l)y  the  con- 
demnation.'*' Where  it  was  sought  to  condemn  a  way  under  the 
tracks  the  railroad  company  was  held  entitled  to  compensation 
lor  the  cost  of  a  bridge  to  carry  its  trains  over  the  tracks.''  And 
where  in  making  proper  approaches  to  a  railroad  track  at  a  high- 
way crossing  it  is  necessary  to  grade  through  all  the  right  of  way 


See  also  Terre  Haute  v.  Evans- 
ville  &c.  R.  Co.,  149  Tnd.  174.  46 
N.  E.  77.  37  L.  R.  A.  189:  Boston 
&c.  R.  Co.  V.  Cambridge,  159 
Mass.  283,  34  N.  E.  382;  Southern 
Kans.  R.  Co.  v.  Oklahoma  City, 
12  Okla.  82,  69  Pac.  1050.  But,  as 
shown  in  the  next  note  where  the 
two  uses  coexist  without  material 
interference  the  daniajfcs  may  be 
merely  nominal. 

"■*  Chicago  &c.  R.  Co.  v.  Chicago, 
166  U.  S.  226,  17  Sup.  Ct.  581,  41 
L.  ed.  979.  See  also  Illinois  Cent. 
R.  Co.  V.  Chicago.  169  111.  329,  48 
N.  E.  492.  Under  this  rule,  as  held 
in  the  cases  cited  and  others,  tlie 
damages  in  case  of  an  ordinary 
crossing  are  usually  only  nominal. 
See  Illinois  Cent.  R.  Co.  v.  Normal, 
175  111.  562,  51  N.  E.  781;  Grand 
Rapids  V.  Grand  Rapids  &c.  R. 
Co..  58  Mich.  641,  26  N.  W.  159: 
Morris    &c.    R.    Co.    v.    Orange,   63 


N.  J.  L.  252,  43  Atl.  730.  47  Atl.  363. 

-''  New  York  &c.  R.  Co.  v.  Black- 
stone,  184  Mass.  491,  69  N.  E.  315; 
Southern  Kansas  R.  Co.  v.  Okla- 
homa City,  12  Okla.  82,  69  Pac. 
1050. 

'"  Southern  Kansas  R.  Co.  v. 
Oklahoma  City,  12  Okla.  82,  69 
Pac.  1050.  In  Missouri  a  railroad 
company  is  entitled,  as  a  general 
rule,  to  compensation  for  all  dam- 
ages that  may  be  reasonably  an- 
ticipated and  ascertained  where 
there  is  a  condemnation  for  a  high- 
way over  its  right  of  way,  but  it  is 
not  entitled  to  damages  for  the  ex- 
pense of  installing  and  maintaining 
an  electric  bell  at  the  crossing  as 
a  safeguard  against  accidents. 
I'ranklin  County  v.  Missouri  Pac. 
R.  Co.  (Mo.),  210  S.  W.  874.  and 
cases  there  cited  on  p.  876. 

""  Cincinnati  &c.  R.  Co.  v.  Troy, 
68  Ohio  St.  510,  67  N.  E.  1.051. 


8159  COMPENSATION    AND   ii\.M\(a:s  §1260 

on  c'itluT  side  of  the  track  it  has  hern  held  that  the  railroad  com- 
]jany  should  hi'  allowed  such  sum  for  damages  as  the  county 
would  have  been  ci)mpelled  to  expend  in  makinj^-  the  public  road 
had  the  railroad  never  been  built.'''  But  the  railroad  company, 
under  the  \veit,dit  of  authority,  is  not  entitled  to  anythinjif  for  the 
extra  expense  necessary  for  the  maintenance  of  the  crossing 
under  mere  police  regulations  such,  for  example,  as  the  cost  of 
putting  in  cattle  guards,  building  wing  fences,  erecting  gates, 
maintaining  flagmen,  and  the  like."''  As  said  by  the  supreme 
court  of  the  United  States :  "The  expenses  that  will  be  incurred 
h\  the  railroad  com])any  in  erecting  gates,  planking  the  crossing 
and  maintaining  flagmen,  in  order  that  its  road  may  be  safely 
operated — if  all  that  should  be  required — necessarily  result  from 
the  maintenance  of  a  public  highway,  under  legislative  sanction, 
and  must  be  deemed  to  have  been  taken  by  the  company  into  ac- 
count when  it  accepted  the  privileges  and  franchises  granted  by 
the  state.  Such  expenses  must  be  regarded  as  incidental  to  the 
exercise  of  the  police  powers  of  the  state.  What  was  obtained 
and  all  that  was  obtained,  by  the  condemnation  proceedings  for 
the  public  was  the  right  to  open  a  street  across  the  land  within 
the  crossing  that  was  used,  and  was  always  likely  to  be  used,  for 
railroad  tracks.  While  the  city  was  bound  to  make  compensa- 
tion for  that  which  was  actually  taken  it  can  not  be  required  to 
compensate  the  defendant  for  obeying  lawful  regulations  enacted 
for  the  safety  of  the  lives  and  i)roperty  of  the  people."^" 

§1266  (996d).  Railroads  and  street  railroads  in  streets — 
Compensation  to  abutters. — The  question  whether  railroads'''  antl 

78  Missouri  Pac.  R.  Co.  v.  Cass  166  U.  S.  226.  17  Sup.  Ct.  581.  41 
Co..  76  Nebr.  396,  107  N.  W.  773.  L.  ed.  979. 

79  Missouri  Pac.  R.  Co.  v.  Cass  ■'^i  Post,  §  1435.  et  seq.  See  also 
Co.,  76  Nebr.  396,  107  N.  W.  773:  .\tlanta  &c.  R.  Co.  v.  Atlanta  &c. 
Chicago  &c.  R.  Co.  v.  Chicago.  166  R.  Co.,  125  Ga.  529,  54  S.  E.  736; 
U.  S.  226.  17  Sup.  Ct.  581.  41  L.  ed.  notes  in  9  L.  R.  A.  (N.  S.)  496.  26 
979;  Chicago  &c.  R.  Co.  v.  Chi-  L.  R.  A.  (N.  S.)  226,  36  L.  R.  A. 
cago,  149  111.  457,  37  N.  E.  78.  S-e  (N.  S.)  698;  Henry  v.  Mason  City 
also  post,  §  1571;  and  notes  in  22  &c.  R.  Co..  140  Iowa  201,  118  N.  W. 
L.  R.  A.  (N.  S.)  1  and  24  L.  R.  A.  310;  Keil  v.  Grays  Harbor  &c.  R. 
(X.   S.)    1231-1236.  Cm..  71  Wash.  163,  127  Pac.  1113. 

so  Chicago  &c.  R.  Co.  v.  Chicago, 


§  1266 


KAILKOADS 


860 


street  railroads®-  impose  an  additional  servitude  on  the  street  or 
highway  over  which  they  are  operated  is  reserved  for  discussion 
in  later  chapters.  At  this  point  it  is  only  intended  to  refer  U)  the 
matter  of  measure  of  damages,  where  there  is  a  liability,  against 
railroads.  Street  railroads  operating  strictly  as  such  are  gener- 
ally not  regarded  as  imposing  any  e.xlra  burden  on  the  street. 
The  measure  of  these  damages  in  the  case  of  railroads  is  usually 
held  to  be  the  substantial  depreciation  of  the  value  of  the  abut- 
ting property  consequent  upon  the  use  of  the  street  by  the  rail- 
road. But  the  difference  in  \alue  must  be  sul)stantial  and  not 
fanciful  or  conjectural.**"  In  determining  this  question  it  has 
been  held  that  the  jury  may  consider  the  decline  in  the  value  of 
the  property  because  of  the  noise,  smoke,  loss  of  light  and  air, 
increased  risk  of  fire,  and  material  interference  with  ingress  and 
egress  so  far  as  they  depreciate  the  value  of  the  abutting  prop- 
erty.®* Where  a  railroad  condemns  the  whole  of  a  dedicated 
street  it  has  been  held  that  the  abutting  owner  is  entitled  to  com- 
pensation for  the  full  value  of  the  land  taken. ®^  In  a  case  where 
residence  property  was  situated  on  the  corner  of  two  streets, 
and  after  the  construction  of  a  railroad  in  one  of  the  streets  an- 
other road  sought  to  condemn  the  owner's  rights  as  abutting 
owner  in  the  other  street,  it  was  held  that  such  owner  was  not 
entitled  to  compensation  from  the  condemning  road  because  of 
an  additional  nuisance  from  the  other  road,  owing  to  its  being 
compelled  to  stop  its  trains  in  front  of  the  residence  and  to  give 
signals,  as  required  by  the  statutes  in  relation  to  the  intersec- 


82  Post,  §  1447,  et  seq.  See  also 
Galveston  &c.  R.  Co.  v.  Houston 
Elec.  Co.,  57  Tex.  Civ.  App.  170, 
122  S.  W.  287;  Wagner  v.  Belt  Line 
R.  Co.,  108  Va.  594,  62  S.  E.  391. 

83  Harrington  v.  Iowa  Cent.  R. 
Co.,  126  Iowa  388,  102  N.  W.  139; 
Camden  &c.  R.  Co.  v.  Smiley,  27 
Ky.  L.  134,  84  S.  W.  523;  Gross- 
man v.  Houston  &c.  R.  Co.,  99  Tex. 
641,  92  S.  W.  836;  South  Bound  R. 
Co.  V.  Burton,  67  S.  Car.  515,  46 
S.  E.  340. 


^•t  South  Bound  R.  Co.  v.  Burton, 
67  S.  Car.  515,  46  S.  E.  340.  But, 
as  elsewhere  shown,  all  authorities 
do  not  agree  as  to  all  of  these  mat- 
ters. See  generally  ante,  §  1235, 
and  post,  §  1435,  et  seq:  Smith  v. 
St.  Paul  &c.  Ry.  Co.,  39  Wash. 
355,  109  Am.  St.  889,  and  elaborate 
note. 

^■'  Suffolk  &c.  R.  Co.  V.  West  &c. 
Imp.  Co.,  137  N.  Car.  330,  49  S.  E. 
350. 


S61  COMPENSATION    AND   DAMAGES  §  1267 

tions  of  railroads.^*'  In  the  course  of  the  decision  announcini,^ 
this  principle  the  court  said  that  when  the  first  railroad's  right  of 
^vay  "was  acquired  in  front  of  this  house,  then  compensation  was 
made,  or  an  opportunity  had  for  compensation  to  be  made,  for 
all  ])rescnt  and  future  damages  to  flow  from  the  operation  of 
the  road  in  the  due  course  of  its  business.  It  is  part  of  the  due 
course  of  the  road's  operation  to  make  such  stops  and  give  such 
signals  as  the  law  or  good  railroading  may  require,  and  all  annoy- 
ance, inconvenience,  and  injury  from  such  an  incident  of  railroad 
operation  can  be,  and  should  be,  compensated  at  the  time  of  the 
a.eciuisition  o[  the  right  of  way.  When  once  acquired,  then  the 
railroad  may  lawfully  use  it  in  any  way  which  good  service  and 
proper  conduct  of  its  affairs  require,  and  for  such  conduct  there 
is  no  resulting  damage  to  the  abutting  property  owner.""' 

§  1267  (996e).  Elevated  railroads. — While  the  courts  do  not 
all  agree  that  an  elevated  railroad  constructed  on  permanent 
structures  in  the  street  by  the  consent  of  the  municipal  author- 
ities does  impose  an  added  servitude  on  the  street,^^  there  is 
a  general  concurrence  of  opinion  that  the  abutting  property 
owner  whose  property  is  depreciated  by  the  road,  is  to  that  ex- 
tent deprived  of  his  property  under  the  eminent  domain  and  is 
entitled  to  the  damage  suffered  by  him.*'-'     A  court  holding  the 

86  Bracey  v.  St.  Louis  &c.  R.  Co.,  §  1435;  note  in  36  L.  R.  A.  (N.  S.) 

79  Ark.  124,  95  S.  W.  151.  ^2.^^    T^^^^-     See    as    to    viaduct,    De- 

8'  Hill,    C.    J.,    in    Bracey    v.    St.  Lucca    v.    North    Little    Rock,    142 

Louis   &c.   R.   Co.,  79  Ark.   124,  95  Fed.  597,  and  cases  there  cited. 
S.  W.  151.  89  Caldwell   v.  New  York  &c.  R. 

88  In  ?^Iissonri  these  railroads  are  Co..  Ill  App.  Div.  164,  97  N.  Y.  S. 

held  to  add  a  burden.     De  Geofroy  588;    Aldis    v.    Union    Elevated    R. 

V.  Merchants'  &c.  R.  Co.,  179  Mo.  Co.,  203  111.  567,  68  N.  E.  95;  Baker 

698,  79  S.  W.  386,  64  L.  R.  A.  959,  v.    Boston    Elevated     R.     Co..     183 

101    Am.    St.    524.     In    Illinois    the  Mass.    178,  dd   N.   E.   711;   Auchin- 

opposite      conclusion      i?      reached.  closs  v.  Metropolitan  &c.  R.  Co..  69 

Doane  v.  Lake  St.  &c.  R.  Co.,  165  App.   Div.   (sZ.   74    N.    Y.     S.    534; 

111.  510,  46  N.  E.  520,  36  L.  R.  A.  I^Iuhlker  v.  New  York  &c.  R.  Co.. 

97,  56  Am.  St.  265.     For  a  further  197  U.   S.  544.  25  Sup.   Ct.  522.  49 

consideration  and  statement  of  the  L.  ed.  872.     And  see  note  in  36  L. 

rule    iu    various    jurisdictions     see  R.  A.  (N.  S.)  673. 
ante,   §§    9.    1231.     1235.     and     post 


>^  126S  KAILUOADS  862 

view  that  an  elevated  railroad  is  not  necessarily  an  added 
servitude  has  said  :  "At  the  time  said  streets  were  dedicated  or 
condemned,  appellants  or  their  grantors  did  not  part  with,  l)ut 
retained  as  appurtenant  to  said  property,  the  right  of  access  to 
said  streets,  the  view,  and  the  comfortable  and  safe  enjoyment 
ol  their  property  ;  and  if  the  appellee  has  constructed  and  is  en- 
i4ay:ed  in  operating  an  elevated  railroad  in  said  streets  in  front  of 
;ipi)ellant's  property,  the  efifect  of  which  is  to  destroy  these  rights 
and  thereby  de])reciate  the  value  of  appellant's  properly,  it  would 
seem  too  clear  for  argument  that  the  ])roperty  of  the  ajjpellants 
had  been  damaged,  and  if  damaged,  that  the  appellants  have  not 
v/aived  or  l^een  ]iaid  such  damages."'"'  A  New  York  court  stat- 
ing the  rule  of  damages  has  held  that  it  was  pro})er  to  award  to 
abutting  owners,  not  owners  of  the  street,  an  amount  equal  to 
the  difference  l)etween  the  value  of  the  property  before  and  after 
the  taking,  less  the  consequential  damages  due  to  the  annoyance 
c.'iused  by  noise,  vibration,  unsightliness  of  structiu'e.  and  all 
elements  other  than  the  value  of  easements  of  light,  air  and 
access."^  In  a  case  where  an  elevated  railroad  company,  having 
the  right  to  construct  its  road  on  a  strip  of  land  in  the  center  of 
the  street,  erected  such  structure  so  as  to  extend  it  beyond  such 
stri])  on  either  side,  it  was  held  that  the  entire  structure  was  un- 
lawful, and  abutting  property  owners  were  entitled  to  rental  and 
fee  damages  for  the  trespass,  without  a  deduction  for  the  portion 
v.-hich  c(nild  have  been  lawfully  erected. '•'- 

§  1268  (996f).  Damages  where  land  taken  is  abandoned  be- 
fore conclusion  of  condemnation  proceedings. — Where  a  railroad 
company  takes  possession  on  instituting  proceedings  to  condemn 
land  for  a  right  of  way  and  after  a  short  use  of  the  same  aban- 
dons it,  before  the  conclusion  of  the  condemnation  proceedings 
the  measure  of  damages  has  been  held  to  be  the  rental  \  alue  of 
the  land  for  the  time  it  was  occupied  and  the  depreciation  in  the 
value  thereof  by  reason  of  the  acts  done  thereon  by  the  railroad 
company,  together  with  the  damage  resulting  to  the  other  land 

»0Aldis  V.  Union  Elevated  R.  re.  11.^  App.  Hiv.  817.  99  N.  Y.  S. 
Co..  203  111.  567,  68  N.  E.  95.  222. 

»i  Brooklyn    Elevated   R.   Co.,   In  »-' siegel  v.  New  York  &c.  R.  Co., 


,S(;:5  COMI'KNSATION     WD    DAMAGES  §  11^6!) 

t 

from  tin-  construction  of  tlic  road  bed  and  from  tlic  lloodinj^'  of 
the  land  caused  Uy  the  embankment,  and  this  is  t(j  be  computed 
from  the  time  of  the  entry  by  the  railroad  company.  All  other 
damages,  it  is  said,  are  to  be  recovered  in  a  separate  action  spec- 
ially brought  for  that  purpose."^  Much  may  depend,  however. 
upon  the  statute  and  i)ractice  in  the  particular  jurisdiction.''* 

§  1269  (997).  Improvements  made  by  company  under  un- 
authorized entry — Views  of  the  authors. — Some  of  the  ct)urts 
carry  the  rule  against  railro.-id  coni])anies  which  enter  on  land 
without  authority  very  far  and  vest  in  the  land-owner  all  right 
and  title  to  iniproveiuents  made  by  the  company.  Some  of  the 
cases,  as  we  believe,  go  entirely  too  far,  for  they  lose  sight  al- 
together of  the  doctrine  of  estoppel,  as  well  as  the  doctrine  of 
leave  and  license.  Where  a  company  enters  and  makes  improve- 
ments under  claim  and  ct)lor  of  right,  even  though  the  claim  be 
not  well  founded  we  think  that  the  land-owner  ought  not  to  be 
allowed  to  recover  the  value  ui  such  improvements,  but  it  may 
perhaps  be  otherwise  where  the  entry  is  over  the  objection  of 
the  owner  and  is  a  mere  naked  trespass.  In  our  judgment  the 
\alue  of  such  improvements  should  not  l)e  included  in  the  com- 
putation of  damages  where  the  statute  permits  appropriation  pro- 
ceedings after  entry  and  such  proceedings  are  taken  pursuant  to 
the  statute.^'' 

§  1270  (998).  Improvements  made  by  company  under  un- 
authorized entry — Illustrative  cases. — Where  the  company  has 
entered  upc)n  land  with  the  consent  of  the  owner  and  constructed 

62  App.  Div.  290,  70  N.  Y.  S.  1088.  1-.    R.    A.    (N.    S.)    417.     See    also 

93  Pine  Bluff  &c.  R.  Co.  v.  Kelly,  Seattle    &c.    R.    Co.   v.    Corbett,  22 

78  Ark.  83,  93  S.  W.  562.  Wash.  189,  60  Pac.  127,  and  author- 

9*  See,    generally,    post,    §§    1324,  ities  cited  in  notes  to  next  follow- 

1325,  1326,  and  note  in  28  L.'R.  A.  ing    section.     As    to    whether    the 

(N.  S.)  91.  owner      can      maintain      ejectment 

95  This   section  is  cited  with   ap-  where  he  acquiesces,  see  Southern 

proval  in  Charleston  &c.  R.  Co.  v.  R.    Co.   v.    Hood,    126   .\la.  312.   28 

Hughes,    105    Ga.   1.   30   S.    E.   972,  So.   662.   85   Am.    St.   32,   and   note 

982;  McClarien  v.  Jefferson  School  in  92  Am.  615. 

Twp..  169  Tnd.  140.  82  N.  E.  73.  13 


i;  1270 


R\IF,K(»AI>S 


864 


its  road,'"'  llu-  \alue  of  rails,  tics  and  the  like-  can  not  he  con- 
sidered in  estimating  compensation  in  sul)sequent  appropriation 
proceedings.  And  even  where  the  entry  of  the  company  amount- 
ed to  a  technical  trespass  because  of  its  failure  to  pursue  with 
strictness  the  appropriate  proceedings  to  condemn,  if  it  has  aclc(l 
in  good  faith  it  can  afterward  proceed  to  condemn  the  land  upon 
payment  of  its  value,  not  including  the  value  of  improvements 
which  it  has  made."'  Where  the  railroad  company  entered  un- 
der a  void  charter,  so  that  it  had  no  authority  at  all  for  the  entry, 
it  w\as  held  in  a  subsequent  proceeding  to  condemn  brought  by 
the  same  company  operating  under  a  new  charter,  that  the  land- 
owner could  only  claim  a  fair,  just,  and  equitable  compensation 
for  his  land,  and  that  justice  and  equity  did  not  require  that  the 
value  added  to  the  land  l)y  the  roatlbed,  ties,  rails,  and  the  like 
placed  ujxin  it  bv  the  company,  should  be  included  in  the  assess- 


"'■■  California  &c.  R.  Co.  v.  South- 
ern Pac.  R.  Co.,  67  Cal.  59,  7  Pac. 
123,  20  Am.  &  Eng.  R.  Cas.  309; 
California  &c.  R.  Co.  v.  Armstrong, 
46  Cal.  85.  See  North  Hudson  Co. 
R.  Co.  V.  Booraem,  28  N.  J.  Eq. 
450;  Mitchell  v.  Illinois  &c.  R.  Co., 
85  111.  566;  Emerson  v.  Western 
Union  R.  Co.,  75  111.  176;  Chicago 
&c.  R.  Co.  V.  Goodwin,  111  111.  273. 
53  Am.  Rep.  622.  See  also  In- 
diana &c.  R.  Co.  V.  Allen,  100  Ind. 
409;  Baltimore  &c.  R.  Co.  v.  Bou- 
vier,  70  N.  J.  Eq.  158,  62  Atl.  868. 
The  consent  of  one  in  possession 
of  the  land  under  voidable  tax 
deeds  is  sufficient  to  relieve  the 
railroad  company  of  the  character 
of  a  trespasser.  Cohen  v.  St. 
Louis  &c.  R.  Co.,  34  Kans.  158,  8 
Pac.  138,  55  Am.  Rep.  242.  See 
also  Ellis  V.  Rock  Island  &c.  R. 
Co.,  125  111.  82,  17  N.  E.  62;  St. 
Louis  &c.  R.  Co.  V.  Nyce,  61  Kans. 
394.  59  Pac.  1040.  48  L.  R.  A.  241: 
St.  Johnsbury  &c.  R.  Co.  v.  Wil- 
lard.  61   Vt.    134,   17  Atl.   38,  21    L. 


R.  A.  528,  15  Am.  St.  886.  The 
railroad  company  can  enter  and  re- 
move rails  laid  by  it  upon  the  land 
of  another  under  a  parol  license. 
Northern  Central  R.  Co.  v.  Canton 
Co.,  30  Md.  347;  Dietrich  v.  Mur- 
dock,  42  Mo.  279.  See  also  the 
well  considered  case  of  Charleston 
&c.  R.  Co.  V.  Hughes,  105  Ga.  1, 
30  S.  E.  972,  982  (citing  text). 

•'"  Jones  V.  New  Orleans  &c.  R. 
Co.,  70  Ala.  221  \  Daniels  v.  Chi- 
cago &c.  R.  Co.,  41  Iowa  52; 
Cohen  v.  St.  Louis  &c.  R.  Co.,  34 
Kans.  158,  8  Pac.  138,  55  Am.  Rep. 
242:  Morgan  v.  Chicago  &c.  R.  Co., 
39  Mich.  675;  Toledo  &c.  R.  Co.  v. 
Dunlap.  47  Mich.  456,  11  N.  W.  271; 
Hays  v.  Texas  &c.  R.  Co.,  62  Tex. 
397;  Lyon  v.  Green  Bay  &c.  R. 
Co.,  42  Wis.  538.  See  also  New- 
gass  V.  St.  Louis  &c.  R.  Co.,  54 
Ark.  140,  15  S.  W.  188;  Jacksonville 
("tc.  R.  Co.  V.  Adams,  28  Fla.  631, 
10  So.  465.  14  L.  R.  A.  533:  Louis- 
ville &c.  R.  Co.  v.  Dickson,  63 
Miss.  380,  56  Am.  Rop.  809;  Oregon 


865 


COMPENSATION     AND    DAMAGKS 


§1270 


ment."^  'Ihis  wc  think  is  ihc  Iruc  doctrine.""  It  is  thus  stated 
in  general  terms  in  a  recent  case:  "When  a  person,  corporation, 
or  l)ody.  invested  with  the  power  of  eminent  domain,  enters  upon 
kind  Avith  or  without  the  consent  of  the  owner,  express  or  im- 
])lie(l,  and  places  improvements  thereon,  and  subsequently  in- 
stitutes proceedings  to  condemn  the  same  land,  the  common-law 
rule  that  a  structure  erected  by  a  tort  feasor  becomes  a  part  of 
the  land  does  not  apply,  and  the  owner  is  not  entitled   to  the 


&c,  R.  Co.  V.  Hosier,  14  Ore.  519, 
13  Pac.  300,  58  Am.  Rep.  321;  Chi- 
cago &c.  R.  Co.  V.  Vaughn,  206 
111.  234,  69  N.  E.  113.  This  gen- 
eral rule  is  conceded,  but  its  ap- 
plication is  denied  under  the  par- 
ticular circumstances  in  Omaha 
Bridge  &c.  R.  Co.  v.  Whitney,  68 
Nebr.  389,  99  N.  W.  525,  and  Van 
Husen  v.  Omaha  Bridge  &c.  Co., 
118  Iowa  366,  92  N.  W.  47.  In 
Baltimore  &c.  R.  Co.  v.  Bouvier, 
70  N.  J.  Eq.  158,  62  Atl.  868,  where 
a  railroad  company  had  entered 
upon  land  under  a  right  of  way 
deed  binding  it  to  double-track  its 
road  and  to  erect  a  passenger  sta- 
tion on  the  vendor's  property, 
which  grant  it  thereafter  forfeited 
by  failure  to  comply  M-ith  the 
terms  thereof,  and  a  judgment  in 
ejectment  was  recovered  against 
it,  it  was  held  that  this  did  not 
give  the  vendor  such  a  new  and 
independent  title  as  to  prevent  the 
application  of  equitable  principles 
in  condemnation  proceedings  there- 
inafter instituted,  in  determining 
whether  or  not  the  vendor  was  en- 
titled to  compensation  for  im- 
provements made  by  the  railroad 
company  before  the  forfeiture.  It 
has  been  held  that  a  land-owner 
can  recover  damages,  but  such  as 
were   agreed    upon    when    the    rail- 


road was  built,  although  the  license 
under  which  the  road  was  con- 
structed w^as  given  by  parol.  Bu- 
chanan v.  Logansport  &c.  R.  Co., 
71  Ind.  265.  But  on  this  point 
there  is  conflict  of  authority. 

osGreve  v.  First  Div.  St.  Paul 
&c.  R.  Co.,  26  Minn.  66,  1  N.  W. 
816. 

f'"  Toledo  &c.  R.  Co.  v.  Dunlap, 
47  Mich.  456,  11  N.  W.  271,  5  Am. 
&  Eng.  R.  Cas.  378;  ^Morgan's  Ap- 
peal, 39  Mich.  675;  Aldridge  v. 
Board  of  Education,  15  Okla.  354. 
82  Pac.  827.  In  Toledo  &c.  Co.  v. 
Dunlap.  supra,  Campbell,  J.,  in 
delivering  the  opinion  of  the  court, 
said:  "The  railroad  company, 
whether  rightfully  or  wrongfully, 
laid  this  track  while  in  possession 
and  for  purposes  entirely  distinct 
from  anj'  use  of  the  land  as  an 
isolated  parcel.  It  w^ould  be  ab- 
surd to  apply  to  land  so  used,  and 
to  a  railway  track  laid  on  it,  the 
technical  rules  which  apply  in  some 
other  cases  to  structures  insepar- 
ably attached  to  the  freehold. 
Whatever  rule  might  applj'  in  case 
of  abandonment,  it  is  clear  that 
this  superstructure  was  never 
designed  to  be  incorporated  with 
the  soil  except  for  purposes  at- 
tending the  possession:  and  in  a 
proceeding   to    obtain    a    legal   and 


5?  1270 


RAILR(JADS 


SQ6 


Milue  of  such  improvements.''^  It  has  been  held,  however,  that 
if  a  railroad  company  enters  upon  the  land  of  another  without 
any  color  or  claim  of  right  or  privilege  whatever,  and  constructs 
a  railroad  track  on  such  land,  such  railroad  track  becomes  the 
];roperty  of  the  land-owner,-  but  some  of  the  broad  statements 
in  the  opinions  in  the  cases  cited  we  regard  as  clearly  wrong.  It 
has  also  been  held  that  where  the  state  constitution  requires  that 
compensation  shall  precede  the  taking  of  private  property,  the 
entry  upon  lands  by  a  railroad  company  without  consent  of  the 
land-owner,  and  without  an  assessment  and  tender  of  the  dam- 
ages, confers  upon  it  no  right  whatever  of  which  it  may  take  ad- 
vantage in  a  subsc(|ucnt  proceeding  to  condemn  the  land.^     Of 


permanent  right  to  occupy  the  land 
for  this  very  purpose  there  would 
be  no  sense  in  compelling  them  to 
buy  their  own  property.  Whatever 
right  of  redress,  if  any,  Dunlap  may 
have  for  the  tortious  occupancy 
previous  to  these  proceedings,  or 
whatever  right  of  property  he 
might  have  in  case  the  company 
abandoned  the  road  entirely  and 
left  the  track  entrenched,  we  think 
that  so  long  as  it  is  in  possession 
and  legal  measures  are  proceeding 
to  secure  a  right  to  retain  it  there, 
this  structure  belongs  to  the  com- 
panj%  whether  intruders  or  not." 
See  also  Illinois  Cent.  R.  Co.  v. 
Hoskins.  80  Miss.  730,  32  So.  150, 
92  Am.  St.  612;  Justice  v.  Nesque- 
honing  Valley  R.  Co.,  87  Pa.  St.  28. 
But  see  where  the  subsequent  con- 
demnation proceedings  are  by  a 
different  company.  De  Buol  v. 
Freeport  &c.  R.  Co.,  Ill  111.  499; 
Trimmer  v.  Pennsylvania  &c.  R. 
Co..  55  N.  J.  L.  46.  25  Atl.  932. 
Compare  however  San  Francisco 
&c.  R.  Co.  V.  Taylor,  86  Cal.  246. 
24  Pac.  1027;  Cochran  v.  Missouri 
&c.   R.    Co.,   94   Mo.    App.   469.   68 


S.  W.  367  (new  company  succeed- 
ing to  rights  of  old);  Seattle  &c. 
R.  Co.  V.  Corbett,  22  Wash.  189,  60 
Pac.  127. 

^  IMcClarrcn  v.  Jefferson  School 
Twp.,  169  Ind.  140,  82  N.  E.  73,  13 
L.  R.  A.  (N.  S.)  417,  419  (citing 
text  and   many  other   authorities). 

-  United  States  v.  Land  in  Mont- 
erey County,  47  Cal.  515;  Graham 
V.  Connersville  &c.  R.  Co.,  36  Ind. 
463.  10  Am.  Rep.  56;  Blue  Earth 
Co.  v.  St.  Paul  &c.  R.  Co.,  28  Minn. 
503,  11  N.  W.  73;  Morin  v.  St.  Paul 
&c.  R.  Co.,  30  Minn.  100,  14  N.  W. 
460;  Hunt  v.  Missouri  Pac.  R.  Co., 
75  Mo.  252;  Price  v.  Weehawken 
Ferry  Co.,  31  N.  J.  Eq.  31;  Long 
Island  R.  Co.,  In  re,  6  T.  &  C.  (N. 
Y.)  298;  Kimball  v.  Adams,  52  Wis. 
554.  9  N.  W.  170.  It  has  been  held 
that  the  railroad  company  can  not 
enter  to  remove  rails  laid  upon  the 
land  of  another  when  it  has  failed 
to  file  a  location  and  to  make  com- 
pensation as  required  by  law.  Mer- 
iam  V.  Brown,  128  Mass.  391. 

3  Graham  v.  Connersville  &c.  R. 
Co..  36  Ind.  463,  468,  10  Am.  Rep. 
56.     This  decision  is  approved  and 


867  coMrKNSATiox  AND  i)A>rA(;i:s  §  1270 

the  opinion  in  the  case  cited  we  feel  bound  to  say  that  in  much  of 
the  reasoning  there  is  manifest  error.  Other  cases  hold  that 
V  here  there  is  color  or  claim  of  right,  the  owner  can  recover 
damages  only  as  of  the  date  of  the  original  taking  or  entry.* 
The  presumption  is  that  rails  and  similar  structures  placed  by  a 
railroad  company  upon  land  taken  by  it  for  a  right  of  way  are 
affixed  to  the  land  with  a  manifest  intention  to  use  them  in  the 
operation  of  the  railroad,  and  hence,  are  not  to  be  regarded  as 
fixtures  forming  part  of  the  real  estate.^  A  land-owner  who 
knows  that  a  railroad  company  is  constructing  a  railroad  ui)on 
his  land  for  its  own  use  can  not  assume  that  the*  structures 
plac&d  on  it  are  for  his  benefit,  but,  on  the  contrary,  the  assump- 
tion should  be  that  the  company  placed  them  there  as  its  own. 
If  the  land-owner  in  such  a  case  obtains  the  full  value  of  his  land 
in  the  condition  it  was  in  at  the  time  of  the  entry,  he  secures  all 
that  he  is  entitled  to  receive.  In  one  case  a  railroad  company 
\\hich  had  i)urchased  a  right  of  way  one  hundred  feet  wide  across 
a  tract  of  land,  went  upon  the  adjoining  land  and  built  a  section 
house  without  the  consent  of  the  land-owner,  and  with  knowl- 
edge that  it  was  building  outside  the  limits  of  its  right  of  way. 
Afterward,  the  land-owner  instituted  an  action  to  recover  the 
land,  whereupon  the  railroad  company  began  proceedings  to  con- 
demn, and  the  court  held  that  the  house,  being  capable  of  use  in 
connection  with  the  land  upon  which  it  stood,  without  being  de- 
tached and  converted  into  personalty,  was  not  governed  by  the 

quoted    from    in    St.    Johnsville    v.  Cleveland  &c.  R.   Co.,  22  Ohio  St. 

Smith,  184  N.  Y.  341,  11  N.  E.  617,  563,    10    Am.    Rep.    770;     Hays     v. 

619,  5   L.   R.  A.   (N.  S.)   922.     See  Texas  &c.  R.  Co.,  62  Tex.  397.  The 

also  St.  Lawrence  &c.  R.  Co.,  Mat-  act  of  a   railroad  in  entering  upon 

ter  of,  133  N.  Y.  270,  31  N.  E.  218.  land    under    irregular    proceedings 

But  it  is  distinguished  and  in  part  does    not   amount   to    a    dedication 

disapproved    in    McClarren    v.   Jef-  by  it  to  the  land-owner  of  the  prop- 

ferson   School  Twp.,   169   Ind.   140,  erty  placed  upon  the  land.     Justice 

82  N.  E.  IZ,  13  L.  R.  A.  (N.  S.)  417.  v.  Nesquehoning  Valley  R.  Co.,  87 

4  Central  Branch  &c.  R.  Co.  v.  Pa.  St.  28;  Illinois  Cent.  R.  Co.  v. 
Andrews,  26  Kans.  702;  Cohen  v.  Hoskins,  80  Miss.  730,  32  So.  150. 
St.  Louis  &c.  R.  Co.,  34  Kans.  158.  92  Am.  St.  612.  But  see  Price  v. 
55  Am.  Rep.  242.  Weehawken   Ferry   Co.,   4  Stewart 

5  Northern   Cent.   R.  Co.  v.  Can-  (X.  J.)  31. 
ton    Co.,   30   Md.   347;    Wagner   v. 


n27i 


IvAlLKOADS 


868 


rule  applying  to  ties  and  rails,  but  that  it  became  a  part  i)f  the 
freehold,  and  that  the  owner  was  entitled  to  have  its  value  in- 
cluded in  an  assessment  of  his  damages  upon  condemnation." 

§  1271  (999).  Deviation  from  proposed  line — Change  of 
loute. — It  is  laid  down  in  some  of  the  cases  that  a  railroad  com- 
panv  is  liable  for  injuries  caused  by  deviation  from  the  line  upon 
which  it  proposed  to  construct  its  road."  We  do  not  believe 
that  the  mere  fact  that  there  is  a  deviation  from  the  line  pro- 
posed will  entitle  the  property  owner  to  damages.  We  suppose, 
however,  that  if  an  assessment  is  made  ui)on  a  designated  line, 
which  is  afterwards  substantially  changed,  and  the  change  causes 
additional  injury  to  the  property  owner,  he  is  entitled  to  compen- 
sation to  the  extent  of  the  injury  caused  by  the  change.  Where 
there  is  a  radical  and  unusual  change  in  the  line  of  the  road,  and 
the  change  is  of  such  a  character  as  to  inflict  additional  injury 
upon  the  property  owner,  then,  as  we  believe,  the  rule  that  dam- 
ages are  assessed  once  for  all  can  not  apply.  But  if  the  change 
is  such  as  might  have  been  reasonably  contemplated  at  the  time 
the  assessment  was  made,  or  such  as  is  ordinarily  made  by  rail- 
road companies,  then,  in  our  opinion,  if  there  is  no  limitation  in 
the  instrument  of  appropriation  or  otherwise,  it  is  covered  by 
the  original  award  of  compensation.^ 


8  Hendry  v.  Trinity  &  Sabine  R. 
Co.  (Tex.),  24  Am.  &  Eng.  R.  Cas. 
286.  In  the  case  cited  the  court 
distinguished  the  case  of  Texas  &c. 
Co.  V.  Hays,  5  Tex.  L.  771,  in 
which  it  was  held  that  rails,  ties 
and  the  like  were  not  to  be  con- 
sidered in  estimating  the  land- 
owner's damages. 

'  Jacksonville  &c.  R.  Co,  v.  Kid- 
der, 21  111.  131;  Peoria  &c.  R.  Co. 
V.  Birkett,  62  111.  332;  Chicago  &c. 
R.  Co.  V.  Chicago  &c.  R.  Co.,  112 
III.  589;  Wabash  &c.  R.  Co.  v.  ^Fc- 
Dougall,  118  111.  229,  8  X.  E.  678: 
Kansas  City  &c.  R.  Co.  v.  Kregelo, 
32  Kans.  608.  5  Pac.  15;  Carpenter 


V.  Easton  &c.  R.  Co.,  24  N.  J.  Eq. 
249,  408,  26  N.  J.  Eq.  168.  See  Hill 
V.  .Mohawk  &c.  R.  Co.,  7  N.  Y.  152. 
In  Chicago  &c.  Co.  v.  Henneberry, 
153  III.  354,  38  N.  E.  1043,  it  was 
held  that  where  there  is  such  a  ma- 
terial alteration  of  the  railroad  as 
causes  the  lands  of  an  adjoining 
owner  to  overflow  he  is  entitled  to 
damages. 

s  Perry  v.  Lehigh  &c.  R.  Co.,  9 
Misc.  515,  30  N,  Y.  S.  140,  citing 
Dearborn  v.  Boston  &c.  R.  Co.,  24 
X.  H.  179,  186;  Hollins  v.  Demor- 
est,  129  N.  Y.  676,  29  N.  E.  1093,  15 
L.  R.  A.  487  and  note.  See  Atchi- 
son &c.  R.  Co.  v.  Pratt,  53  111.  App. 


869 


COMPENSATION    AND    DAMAGES 


§  1272 


§  1272  (1000).  Owner  at  time  possession  is  taken  is  entitled 
to  damages — Vendor  and  vendee. —  1  he  settled  general  rule  is 
thai  where  a  railroad  company  has  entered  into  actual  possession 
o£  lands,  the  right  to  the  damages  vests  in  the  person  owning  the 
land  at  the  time  possession  is  taken.''  The  right  to  the  damages 
is  a  personal  right  vested  in  the  vendor.  As  the  right  is  a  per- 
sonal one,  it  is  governed  by  the  general  doctrine  that  personal 
rights  do  not  pass  by  a  conveyance  of  the  land,  and  hence  the 
right  of  action  remains  in  the  vendor.^*^     Under  a  code  providing 


263:  Cleveland  &c.  R.  Co.  v.  Had- 
ley.  179  Ind.  429,  439,  440. 

8  Roberts  v.  Northern  Pacific  R. 
Co.,  158  U.  S.  1,  15  Sup.  Ct.  756, 
39  L.  ed.  873;  Hood  v.  Southern 
R.  Co..  133  Ala.  374,  31  So.  937: 
Little  Rock  &c.  R.  Co.  v.  Greer,  11 
Ark.  387,  96  S.  W.  129;  Bruce  v. 
Seaboard  &c.  R.  Co.,  52  Fla.  461, 
41  So.  883:  McLendon  v.  Atlanta 
&c.  R.  Co.,  54  Ga.  293;  Green  v. 
South-Bound  R.  Co.,  112  Ga.  849, 
38  S.  E.  81:  Illinois  Central  R.  Co. 
V.  Lockard.  112  111.  App.  423: 
Church  V.  Grand  Rapids  &c.  R.  Co.. 
70  Tnd.  161:  Indiana  &c.  R.  Co.  v. 
Allen.  100  Ind.  409:  Scovell  v.  St. 
Louis  &c.  R.  Co..  117  La.  459.  41 
So.  723;  Wood  v.  Commissioners, 
122  Mass.  394;  Drury  v.  Midland 
R.  Co.,  127  Mass.  571;  Dunlap  v. 
Toledo  &c.  R.  Co..  46  Mich.  190.  9 
N.  W.  249,  50  Mich.  470,  15  N.  W. 
555:  Hilton  v.  St.  Louis,  99  Mo. 
199:  Hentz  v.  Long  Island  &c.  R. 
Co..  13  Barb.  (N.  Y.^  646:  King  v. 
flavor  &c.  of  New  York.  102  N.  Y. 
171,  6  N.  E.  395:  McFadden  v. 
Johnson,  72  Pa.  St.  335,  13  Am. 
Rep.  681:  Warrell  v.  Wheeling  &c. 
R.  Co.,  130  Pa.  St.  600,  10  Atl.  1014: 
Smith  V.  Railway  Co.,  88  Tenn.  611, 
13  S.  W.  128:  Milwaukee  &c.  R. 
Co.    V.    Strange,    dZ    W^is.    178,    23 


N.  W.  432;  Walton  v.  Green  Bay 
&c.  R.  Co.,  70  Wis.  414,  36  N.  W. 
10.  Or  at  the  time  of  the  appro- 
priation or  taking.  Ft.  Wayne 
Trac.  Co.  v.  Ft.  Wayne  &c.  R. 
Co.,  170  Ind.  49,  83  N.  E.  665; 
Spencer  v.  Connecticut  &c.  Power 
Co.,  78  N.  H.  468,  101  Atl.  528; 
Quade  v.  Columbia  &c.  R.  Co.,  233 
Pa.  St.  20,  81  Atl.  813.  We  are 
nf)t  at  this  place  referring  to  the 
rights  of  tenants,  mortgagees,  lien- 
holders  and  the  like,  but  only  to 
the  rights  of  vendors  and  vendees. 
See  generally  Bridges  v.  Southern 
Ry.  Co..  86  S.  Car.  267,  68  S.  E. 
551.  Ann.  Cas.  1912A,  1056  and 
note.  And  compare  Obst  \.  Cov- 
ell,  93  .Minn.  30,  100  N.  W.  650; 
Northeastern  &c.  R.  Co.  v.  Frazier, 
25  Nebr.  42,  40  N.  W.  604,  as  to 
rule  or  exception  where  property 
is  sold  at  intermediate  stage  of 
condemnation  proceedings.  And 
see  also  as  to  this  last  question. 
Griffith  V.  Drainage  Dist.,  182  Iowa 
1291.  166  N.  W.  570:  In  re  Twelfth 
Ave.,  74  Wash.  132.  132  Pac.  868. 
Ann.  Cas.  1915A,  731,  and  other 
cases  there  cited  in  note. 

10  Indiana  &c.  R.  Co.  v.  Allen. 
100  Tnd.  409:  Sargent  v.  Machias. 
65  Maine  591:  New  York  &c.  R. 
Co.  V.  Drury,  .133  Mass.  167;  Dun- 


§1272 


RAILROADS 


870 


lor  the  assignment  uf  rights  of  action,  howexer,  the  claim  ma\' 
be  assigned." 


lap  V.  Toledo  &c.  R.  Co.,  50  Mich. 
470,  15  N.  W.  155;  Chicago  &c.  R. 
Co.  V.  Englehart,  57  Nebr.  444,  11 
X.  W.  1092;  Schuylkill  Navigation 
Co.  V.  Decker,  2  Watts  (Pa.)  343; 
McFadden  v.  Johnson,  72  Pa.  St. 
334;  Warrell  v.  Wheeling  P.  &  B. 
R.  Co.,  130  Pa.  St.  600,  18  All.  1014: 
Pomeroy  v.  Chicago  &c.  R.  Co.,  25 
Wis.  641.  And  to  the  same  effect 
are  the  following  recent  cases:  Mo- 
bile &c.  R.  Co.  V.  Fowl  River  Lum- 
ber Co.,  152  Ala.  320,  44  So.  471; 
Lumerate  v.  St.  Louis  &c.  R.  Co., 
149  Mo.  App.  47,  136  S.  W.  448; 
Quade  v.  Columbia  &c.  R.  Co.,  233 
Pa.  St.  20.  81  Atl.  813;  King  v. 
Southern  R.  Co.,  119  Fed.  1017. 
But  see  a  line  of  decisions  in  North 
Carolina  to  the  effect  that  the  pur- 
chaser is  entitled  to  tlie  damages 
to  the  land:  Beal  v.  Durham  &c.  R. 
Co.,  136  N.  Car.  298,  48  S.  E.  674; 
Livermon  v.  Roanoke  &c.  R.  Co., 
109  N.  Car.  52,  13  S.  E.  734; 
Phillips  V.  Postal  &c.  Co.,  130  N. 
Car.  513,  41  S.  E.  1022,  89  Am.  St. 
868.  In  the  case  last  cited  the 
court  says:  "A  subsequent  pur- 
chaser can  not  recover  for  a  com- 
pleted act  of  injury  to  tlie  land, 
— as.  for  instance,  the  unlawful 
cutting  down  of  trees;  but  if  the 
trespasser  unlawfully  remains  upon 
the  land  after  the  sale,  or  returns 
and  carries  away  the  trees,  he  be- 
comes liable  to  the  then  owner  in 
the  first  case  as  for  a  continuing 
trespass,  and  in  tlie  latter  for  a 
fresh  injury.  If,  in  addition  to 
this,    the    trespasser    seeks    to    ac- 


(|uirc  the  ri^ht  to  remain,  he  can 
do  so  only  by  the  consent  of  the 
owner,  or  under  the  principle  of 
eminent  domain.  This  is  not  the 
perpetration  of  a  wrong,  but  the 
lawful  acquisition  of  a  right,  and 
the  damages- incident  thereto  must 
be  paid  to  the  owner  from  whom 
the  right  is  acquired."  In  Nebras- 
ka a  purchaser  of  land,  pending 
proceedings  to  appropriate  the 
same  for  public  use,  may  prosecute 
a  claim  for  damages  for  such  ap- 
propriation in  his  own  name  when 
such  compensation  has  been  whol- 
ly denied  to  his  grantor. — Ashley 
V.  Burt  County,  IZ  Nebr.  159,  102 
N.  W.  272.  See  Bridgman  v.  St. 
Johnsbery  &c.  R.  Co.,  58  Vt.  198, 
2  Atl.  467;  Inge  v.  Police  Jury,  14 
La.  Ann.  117;  Wood  v.  Commis- 
sioners, 122  Mass.  394;  Pinkerton 
v.  Boston  &c.  R.  Co.,  109  Mass. 
527;  Harshbarger  v.  Midland  R. 
Co.,  131  Ind.  177,  180,  27  N.  E. 
352,  30  N.  E.  1083. 

11  See  Frey  v.  Duluth  &c.  R.  Co., 
91  W^is.  309.  64  N.  W.  1038,  and  In- 
diana &c.  R.  Co.  v.  Allen,  113  Ind. 
308,  311,  15  N.  E.  451,  3  Am.  St. 
650;  and  see  McFadden  v.  Johns- 
ton, 72  Pa.  St.  335,  13  Am.  Rep. 
681;  Pomero}^  v.  Chicago  &c.  R. 
Co.,  25  Wis.  641,  to  the  effect  that 
the  right  of  compensation  may 
pass  if  the  deed  expressly  so  pro- 
vides. See  also  Magee  v.  Brook- 
lyn, 144  N.  Y.  265,  39  N.  E.  87; 
Tucker  v.  Chicago  &c.  R.  Co.,  91 
Wis.  576.  65  N.  W.  515. 


871 


COMPENSATION    AND    DA ^I AGES 


§1273 


§  1273  (1000a).  Who  is  owner. — It  is  sometimes  difficult  to 
determine  who  is  the  owner  entitled  to  compensation.  And,  in 
many  instances,  compensation  must  be  made  not  only  to  the 
owner  of  the  land  itself,  but  also  to  the  owner  of  some  interest 
or  estate  therein  less  than  a  fee.  In  considering  the  subject  of 
parties  in  condemnation  proceeding's  we  shall  have  occasion  to 
fully  discuss  the  question  as  to  who  are  "owners"  ;^-  but  it  may  be 
said  generally  in  this  connection  that  the  term  usually  includes 
any  and  all  persons  who  have  an  interest  in  the  land  or  propertv 
taken  and  w^ho  are  so  damaged  thereby  that  they  are  entitled  to 
compensation.^^'  Thus  it  may  happen  that  holders  of  different 
interests  or  estates  are  all  entitled  to  compensation,  each  for  the 
damage  to  his  particular  interest  or  estate."  But  mere  tres- 
passers or  the  like  are  not  owners. ^^ 

§  1274  (1001).  Who  is  entitled  to  the  compensation  where 
the  land  is  conveyed  after  appropriation  proceedings  are  com- 


12  See  post,  §  1310. 

13  See  Crane  v.  Elizabeth,  36  N. 
J.  Eq.  339  (holder  of  equitable 
title) ;  Butterworth  &c.  Co.  v.  Cen- 
tral R.  Co.,  72  N.  J.  Eq.  568.  66  Atl. 
198  (owner  of  easement) ;  Andrew 
V.  Nantasket  &c.  R.  Co.,  152  Mass. 
506,  25  N.  E.  966  (holder  of  pos- 
sessary  title) ;  Pinkerton  v.  Boston 
&c.  R.  Co.,  109  Mass.  527;  Rule  v. 
Sioux  County,  94  Nebr.  736,  144 
N.  W.  806:  Hill  v.  Glendon  &c. 
Co.,  113  N.  Car.  259,  18  S.  E.  171 
(tenants  in  common) ;  Galveston 
&c.  R.  Co.  V.  Pfeufer,  56  Tex.  66 
(same);  Fulton  Co.  v.  Amorous, 
89  Ga.  614,  16  S.  E.  201;  Tucker  v. 
Chicago  &c.  R.  Co.,  91  Wis.  576,  65 
N.  W.  515  (tenant  in  common  hav- 
ing acquired  entire  interest  entitled 
to  entire  compensation) ;  Hutchin- 
son V.  Parkersburg,  25  W.  Va.  226: 
Virginia  &c.  R.  Co.  v.  Booker,  99 
Va.  633.  39  S.  E.  591:  Georgia  &c. 
R.    Co.  V.    Scott,  38   S.   Car.  34.   16 


S.  E.  185,  839;  Pecksport  &c.  R. 
Co.  V.  West,  20  App.  Div.  636,  47 
N.  Y.  S.  230;  Ellisworth  &c.  R. 
Co.  V.  Gates,  41  Kans.  574,  21  Pac. 
632:  Spokane  Falls  &c.  R.  Co.  v. 
Ziegler,  167  U.  S.  65,  17  Sup.  Ct. 
728,  42  L.  ed.  79.  Holder  of  bond 
for  deed  entitled  to  damages. 
Brown  v.  Arkansas  Central  R.  Co., 
72  Ark.  456,  81  S.  W.  613. 

"See  post,  §§  1277,  1278;  also 
Mills  v.  Samuels,  230  Mass.  1,  118 
N.  E.  861. 

15  Rosa  v.  Missouri  &c.  R.  Co., 
18  Kans.  124;  Rooney  v.  Sacra- 
mento Valley  R.  Co.,  6  Cal.  638; 
Norris  v.  Pueblo,  12  Colo.  App. 
290,  55  Pac.  747.  See  also  Monati- 
quot  &c.  ]\Iills  V.  Commonwealth, 
164  Mass.  227,  41  N.  E.  280  (li- 
censee from  state):  Patten  v.  New 
York  El,  R.  Co.,  3  Abb.  N.  Cas. 
(N.  Y.)  306;  Shaaber  v.  Reading, 
150  Pa.  St.  402,  24  Atl.  692. 


§1274 


RAILROADS 


872 


menced — Vendor  and  vendee. —  Tlic  ruk-  sup])orte(l  by  the  .^reat 
weight  of  authority,  as  already  indicated,  is  that  the  jjerson  who 
owns  the  property  at  the  time  possession  is  taken,  or  title  vests 
in  the  railroad  company,  is  entitled  to  the  compensation."'  Hut 
there  is  dilTicidty  in  the  ])raetical  application  of  the  rule.  If  a 
niilroad  company  begins  proceedings  against  all  whom  the  rec- 
ord shows  to  have  any  title  to.  interest  or  estate  in  the  land 
sought  to  be  appropriated,  there  is  certainly  some  reason  for 
holding  those  who  acquire  rights  subsequently  by  ])urchase  or 
otherwise,  should  be  held  to  take  notice  of  the  proceedings,  and 
that  if  the  compensation  is.  in  good  faith,  paid  to  the  |)ersons 
who  appeared  of  record  to  be  entitled  thereto  at  the  time  the 
proceedings  were  commenced,  the  railroad  company  must  be  re- 
garded as  having  done  its  duty  and  can  not  be  made  liable  to 
one  who  acquires  rights  subsequent  to  the  commencement  of 
the   appropriation   proceedings.     We    do    not    doubt    that    the 


16  Curran  v.  Shattuck,  24  Cal. 
427;  Rice  v.  Chicago,  57  111.  App. 
558;  Bean  v.  Warner,  38  N.  H. 
247;  Magee  v.  Brooklyn,  144  N.  Y, 
265,  39  N.  E.  87;  Carii  v.  Stillwater 
&c.  R.  Co.,  16  Minn.  260;  Kiebler 
V.  Holmes,  58  IMo.  App.  119;  Mc- 
ginnis  v.  Nunamaker,  64  Pa.  St. 
374.  See  Lawrence's  Appeal,  78 
Pa.  St.  365;  Stevenson  v.  Loehr,  57 
III.  509,  11  Am.  Rep.  36;  Chicago 
&c.  R.  Co.  V.  Metropolitan  &c.  R. 
Co..  152  III.  519,  38  N.  E.  736; 
Kuhn  V.  Freeman,  15  Kans.  423; 
Pinkertonv.  Boston  &c.  R.  Co.. 
109  Mass.  527;  Mclntyre  v.  Easton 
&c.  R.  Co.,  26  N.  J.  Eq.  425; 
Stokes  V.  Parker,  53  N.  J.  L.  183, 
20  Atl.  174;  Kohn  v.  Manhattan 
&c.  R.  Co.,  11  Misc.  23,  31  N.  Y. 
S.  859;  Clarke  v.  Cleveland,  9 
Ohio  C.  C.  118;  Davis  v.  Titusville 
&c.  R.  Co.,  114  Pa.  St.  308,  6  Atl. 
736.  The  rule  asserted  by  the 
New  York  cases  is  held  not  to 
apply   where    the    grantor   reserves 


a  right  to  the  damages.  Kings- 
land  V.  Kings  County  R.  Co.,  83 
Hun  151,  31  N.  Y.  S.  582,  But  see 
Kernochan  v.  New  York  &c.  R. 
Co..  128  N.  Y.  559,  29  N.  E.  65; 
Pappenheim  v.  Metropolitan  &c.  R. 
Co..  128  N.  Y.  463,  28  N.  E.  518; 
Pegram  v.  New  York  &c.  R.  Co., 
147  N.  Y.  135.  41  N.  E.  424.  As  to 
right  of  remainder-man  to  inter- 
vene in  proceedings  against  life 
tenant,  see  Jones  v.  Asheville,  116 
N.  Car.  817.  21  S.  E.  691.  See  gen- 
erally In  re  Twelfth  Ave..  74 
Wash.  132.  132  Pac.  868.  Ann.  Cas. 
1915A,  731  and  note;  l-'rcy  v.  Du- 
luth  &c.  R.  Co.,  91  Wis.  309,  64  N. 
W.  1038;  ante,  §  1272.  In  a  case 
where  a  road  was  projected  but 
abandoned  and  afterwards  revived, 
it  was  held  that  one  who  obtained 
title  under  a  sale  on  a  judgment, 
was  entitled  to  receive  the  com- 
pensation awarded  upon  the  re- 
vival of  the  enterprise.  Jones  v. 
Miller  (Va.),  23  S.  E.  35. 


873 


COMPENSATION    AND    DAMAGES 


§  1275 


owner  at  the  time  the  right  to  com])cnsation  accrues  may  obtain 
it  by  an  intervening"  petition  or  other  appropriate  procedure,  but 
we  do  doubt  the  correctness  of  the  doctrine  of  some  of  the  cases 
that  the  railroad  company  is  bound  to  examine  the  record  to 
ascertain  what  persons  acquire  interest  after  the  appropriation 
proceedings  are  commenced.^'  The  rule,  as  laid  down  in  many 
cases,  is  that  it  is  sufficient  to  make  parties  those  shown  by  the 
record  or  by  possession  to  have  an  interest  in  the  land,^**  and  a 
necessary  sequence  is  that  the  railroad  company  may  safely  pay 
such  persons  the  compensation  unless  it  has  actual  notice  that 
they  are  not  entitled  to  receive  it.  or,  at  all  events,  unless  it  has 
such  notice  or  constructive  notice  by  the  recording  of  the  con- 
veyance before  it  is  too  late. 

§1275  (1001a).  Temporary  use  of  premises.  —  A  railroad 
company  ma}'  l>e  charged  with  the  taking  of  private  property,  in 
a  sense  at  least,  where  it  temporarily  occupies  the  same  without 


1'  It  lias  been  held  that  a  vendee 
who  acquires  title  while  the  pro- 
ceedings are  pending  and  before 
they  are  concluded  is  entitled  to 
the  compensation.  Carli  v.  Still- 
water &c.  R.  Co.,  16  Minn.  260; 
Roberts  v.  Williams,  15  Ark.  43: 
Curran  v.  Shattuck,  24  Cal.  427; 
Bean  v.  Warner,  38  N.  H.  247;  .Me- 
ginnis  v.  Nunamaker,  64  Pa.  St. 
374;  Paducah  &c.  R.  Co.  v.  Stovall, 
12  Heisk.  (Tenn.)  1;  Rand  v. 
Townshend.  26  Vt.  670.  See  also 
Beal  V.  Durham  &c.  R.  Co.,  136  N. 
Car.  298,  48  S.  E.  674;  Ashley  v. 
P.urt  County,  72,  Nebr.  159,  102  N. 
W.  272;  Condemnation  of  Lands, 
&c.,  In  re,  93  :Minn.  30,  100  N.  W. 
650;  Chandler  v.  :\[orey,  195  111. 
596,  63  N.  E.  512;  Northeastern 
&c.  R.  Co.  V.  Frazier,  25  Nebr.  42, 
40  N.  W.  604;  Virginia  &c.  R.  Co. 
V.  Booker,  99  Va.  62,2,.  39  S.  E.  591. 

18  Bell  V,   Cox,   122   Ind.   153,  23 


N.  E.  705;  Brown  v.  County  Com- 
missioners, 12  Mete.  (Mass.)  208; 
Pickford  v.  Lynn,  98  Mass.  491; 
Drury  v.  Midland  R.  Co.,  127  Mass. 
571 ;  Stewart  v.  White,  98  Mo.  226, 
11  S.  W.  568;  King  v.  New  York, 
102  N.  Y.  171.  6  N.  E.  395;  Plumer 
V.  Wausau  &c.  Co.,  49  Wis.  449,  5 
N.  W.  232.  See  also  Ft.  Wayne 
&c.  Trac.  Co.  v.  Ft.  Wayne  &c.  R. 
Co.,  170  Ind.  49,  83  N.  E.  665; 
Birge  v.  Chicago  &c.  R.  Co.,  65 
Iowa  440.  21  N.  W.  767;  Cool  v. 
Crommet,  13  Maine  250;  Lawrence 
V.  Nahant.  136  Mass.  477;  Board  of 
Levee  Com.  v.  Johnson,  66  Miss. 
248,  6  So.  199;  Chambers  v.  Cart- 
eret &c.  Co.,  54  N.  J.  L.  85.  22  Atl. 
995;  Gilligan  v.  Providence.  11  R. 
I.  258;  Barre  R.  Co.  v.  Montpelier 
&c.  R.  Co.,  61  Vt.  1,  17  Atl.  923,  4 
L.  R.  A.  785;  Elliott  Roads  and 
Streets,  236. 


v;  127G  KAiuiOADS  874 

the  consent  of  the  owner.  This  question  often  arises  in  cases 
vhere  a  raih-oad  company  occupies  a  highway  during  some  re- 
adjustment of  its  tracks  or  roadway  and  thereby  interferes  with 
the  use  of  the  highway  by  the  public  and  obstructs  the  abutting 
owner's  ingress  to  or  egress  from  his  premises.  The  right  to 
recover  damages  in  such  cases  is  upheld  in  a  series  of  recent 
Connecticut^"  and  Massachusetts-"  decisions.  It  is  held  that  the 
fact  that  the  tracks  were  placed  in  the  highway  merely  as  a 
temporary  expedient  in  aid  of  a  lawful  work  and  were  to  be  re- 
moved as  soon  as  the  work  was  completed  did  not  affect  the 
]^rinciple  and  was  only  important  in  determining  the  amount  of 
compensation  to  which  the  owner  was  entitled.-^  The  measure 
of  damages  for  a  temporary  occupancy  which  cuts  off  access 
from  a  place  of  business  is  held  to  be  the  reasonable  value  of  the 
use  of  the  premises  to  the  owners  for  the  purposes  for  which  the\' 
were  using  them,  including  compensation  for  such  damages  to 
their  premises  and  goods  and  necessary  expenses  incurred  in 
saving  them  from  further  damage,  not  included  in  the  diminution 
in  value  of  the  use  of  the  premises,  as  were  caused  by  the  rail- 
road company's  acts  and  which  the  owners  could  not  have  avf)id- 
ed  by  the  use  of  reasonable  care  and  forethought. 

§  1276   (1002).     Notice  to  purchaser  by  existence  of  railroad. — 

One  who  purchases  land  after  the  construction  of  the  railroad 
must  take  notice  of  the  rights  of  the  company  as  shown  by  the 
occupancy  of  the  land  and  the  construction  of  the  road.--     Such 


"  McKeon   v.   New   York   &c.   R.  20  Bailey  v.  Boston  &c.  Corp.,  182 

Co.,  75   Conn.  343,  53  Atl.  656.  61  ^Fass.  537,  66  N.  E.  203. 

L.    R.   A.   730;    Knapp    &c.    Cowles  ^^  McKeon  v.  New  York  &c.  R. 

Mfg.  Co.  v.  New  York  &c.  R.  Co.,  Co.,  75    Conn.  343,  53  Atl.  656,  61 

76  Conn.  311,  56  Atl.  512,  100  Am.  L.   R.   A.   730.     See   also    upon   the 

St.     994;     Vincent     Bros.    v.     New  tjeneral    subject   of   temporary    use 

York  &c.  R.   Co.,  11  Conn.  431.   59  of  or  interference  with  property'  as 

Atl.    491..    That    no    damage    is    re-  a     taking     or     damaging.      Great 

coverable  for  a  temporary  obstruc-  Nortliern     R.     Co.     v.     State,     102 

tion  of  a  street,  unless  it  is  unrea-  Wash.   348,    173   Pac.   40.   T..    R.   A. 

sonably    prolonged,    see    Shepherd  1918E,  987  and  note. 

v.  Baltimore  &c.  R.  Co.,  130  U.  S.  =2  Roberts    v.    Northern    Pac.    R. 

426,  9  Sup.  Ct.  598,  32  L.  ed.  970.  Co.,   158  U.  S.   1,   15  Sup.   Ct.  756, 


875 


COMF'ENSATION    AND    DAMAGES 


§  1277 


a  purchaser  does  not  obtain  a  title  superior  to  that  of  the  rail- 
road company.  He  may,  however,  maintain  an  action  for  dam- 
ages, caused  by  a  substantial  change  in  the  construction  of  the 
road  which  was  not  contemplated  in  the  original  grant  of  a  right 
of  wa\-  or  award  of  compensation.--' 

§  1277   (1003).     To  whom  compensation  should  be  paid. — In 

considering  at  another  place  the  c|uestion  wdio  should  be  made 
parties  to  condemnation  proceedings  we  have  discussed  the  ques- 
tion as  to  who  is  entitled  to  receive  the  compensation  or  damages 
lor  property  appropriated  under  the  right  of  eminent  domain.-^ 
At  this  place  we  shall  very  briefly  consider  the  general  question 
cUid  direct  attention  to  some  of  the  authorities.  It  may  be  said 
generally  that  compensation  must  be  paid  to  the  persons  owning 
estates  or  interests  in  the  property.  Dififerent  interests  may  be 
held  l)y  different  persons,  but  all  must  be  compensated  according 
to  their  respective  interests  or  estates.  It  has  been  held  that 
damages  for  land  held  by  a  trustee  will  belong  to  the  cestui  que 
trust, -^  and  while  this  is  true,  we  suppose  that  ordinarily  the 
trustee  w^ould  be  entitled  to  receive  and  hold  the  money  for  the 
purposes  of  the  trust,  and  that  if  the  trustee  were  made  a  party 
to  the  proceedings  the  beneficiary  would  be  bound.-*'  It  is  held 
that  where  lands  subject  to  a  life  estate  are  condemned  the  life 


39  L.  ed.  873;  Railroad  Co.  v.  Mor- 
gan, 72  111.  155:  Chicago  &c.  R. 
Co.  V.  Henncberry,  153  111.  354,  38 
N.  E.  1043;  Paul  v.  Connersville 
&c.  R.  Co.,  51  Ind.  527;  Jeft'erson- 
ville  &c.  R.  Co.  V.  Oyler.  60  Ind. 
383;  Indiana  &c.  R.  Co.  v.  Mc- 
Broom,  114  Ind.  198,  15  N.  E.  831. 
See  also  Whitecotton  v.  St.  Louis 
&c.  R.  Co.,  104  Mo.  App.  65,  78 
S.  W.  318;  ante,  §  1177. 

23  Chicago  &c.  R.  Co.  v.  Henne- 
l)erry.   153   111.  354,   38   N.   E.    1043. 

24  Post.  §  1310;  see  ante.  §  1272. 
1273,  1274.  As  a  general  rule  all 
persons  who  have  an  interest  in 
the      property     should     be     made 


parties.  State  v.  Superior  Court, 
80  Wash.  417,  141  Pac.  906.  . 

--'  Whitnc}-  v.  Milwaukee,  57  Wis. 
639,  16  N.  W.  12.  Executor  is  not 
ordinarily  a  necessary  part  y. 
Highwa}'  Comrs.  of  Ross  v.  Cham- 
bers, 265  111.  113,  106  N.  E.  492. 

26  The  general  rule  is  that  bene- 
ficiaries are  bound  by  a  judgment 
or  decree  against  the  trustee.  Ker- 
rison  v.  Stewart,  93  U.  S.  155,  23 
L.  ed.  843;  Vetterlein  v.  Barnes, 
124  U.  S.  169,  8  Sup.  Ct.  441.  31  L. 
ed.  400;  Campbell  v.  Railroad  Co., 
1  Woods  (U.  S.)  368;  Robertson 
V.  Van  Cleave,  129  Ind.  217,  220,  26 
N.  E.  899,  29  N.  E.  781,  15  L.  R.  A. 


§  1277 


UAILHOADS 


876 


tenant  is  entitled  to  the  use  of  the  damag-es  during  his  tenancy,-' 
but,  ordinarily,  the  damages  are  apportioned  between  them.-^ 
If  the  land  is  in  the  possession  of  a  tenant  he  must  compen- 
sated.-" and  if  a  tenant  from  year  to  year,  he  should  receive  the 
value  of  his  crops,  while  the  owner  of  the  fee  should  have  dam- 
ages for  injuries  to  the  land/'"  It  is  generally  held  that  a  mortga- 
gee of  the  land  taken  is  entitled  to  have  the  damages  applied  in 
payment  of  his  debt,^^  and  where  he  is  not  made  a  party  he  may 


68  and  note:  Shaw  v.  Norfolk  &c. 
Co..  5  Gray  (Mass.)  162;  Winslow 
V.  Minnesota  &c.  R.  Co.,  4  Minn. 
313,  n  Am.  Dec.  519;  Rogers  v. 
Rogers,  3  Paige  (N.  Y.)  379; 
Campbell  v.  Wat.son.  8  Ohio  498. 
Compare  Trustees  v.  McMahon, 
265  Til.  83,  106  N.  E.  486. 

-'  Kansas  Citj'  &c.  R.  Co.  v. 
Weaver,  86  Mo.  473.  In  Colcough 
V.  Nashville  &c.  R.  Co.,  2  Head 
(Tenn.)  171,  it  was  held  that  the 
damages  should  be  distributed  ac- 
ccjrding  to  the  respective  values  of 
the    dififerent   estates. 

2s  Bentonvillc  R.  Co.  v.  Baker,  45 
Ark.  252:  r.urbridgc  v.  New  Al- 
bany &c.  R.  Co.,  9  Ind.  546;  Penn- 
sylvania &c.  R.  Co.  V.  Bently.  88 
Pa.  St..  178:  Colcough  v.  Nashville 
&c.  R.  Co..  2  Head  (Tenn.)  171: 
Austin  V.  Rutland  R.  Co..  45  Vt. 
215:  Plfegar,  In  re,  L.  R.  6  Eq. 
426.  See  as  to  lessor  being  entitl- 
ed to  the  compensation  where  a 
renewal  lease  was  executed  while 
the  proceedings  were  pending.  St. 
Louis  V.  Nelson.  108  Mo.  App.  210, 
83  S.  W.  271.  Rut  compare  Storms 
V.  Manhattan  R.  Co..  178  N.  Y.  493, 
71  N.  E.  3.  66  L.  R.  A.  625.  ■  The 
remainder-men  are  entitled  to  re- 
cover for  their  contingent  interest 
the  value  of  such  interest  at  the 
time      of     taking,      with      interest. 


Charleston  &c.  R.  Co.  v.  Reynolds, 
69  S.  Car.  481,  48  S.  E.  476.  See 
generally  as  to  life  tenant  and  re- 
mainder-man, Pittsburgh  &c.  R. 
Co.  V.  Bentley,  88  Pa.  St.  178; 
Cureton  v.  South  Bound  R.  Co.,  59 
S.  Car.  371,  Zl  S.  E.  914:  North- 
western R.  Co.  V.  Colclough.  89  S. 
Car.  555.  72  S.  E.  494. 

2''  Ft.  Smith  Suburban  R.  Cd.  v. 
.Maledon.  78  Ark.  366,  95  S.  W. 
472:  North  Coast  R.  Co.  v.  Gentry, 
58  Wash.  82,  107  Pac.  1060.  See 
also  State  v.  Superior  Court,  80 
Wash.  417.  141  Pac.  906.  But  see 
where  lease  is  made  after  the  tak- 
ing, Chicago  V.  ]\Iesslcr,  38  Fed. 
302;  Illinois  Cent.  R.  Co.  v.  I'er- 
rell,  108  111.  App.  659:  Child  v. 
New  York  El.  R.  Co..  89  App.  Div. 
598,  85  N.  Y.  S.  604. 

■"•*'  Rooney  v.  Sacramento  Valley 
R.  Co..  6  Cal.  638:  Chicago  &c.  R. 
Co.  V.  Dresel.  110  III.  89:  Balti- 
more &c.  R.  Co.  V.  Thompson.  10 
Md.  76;  Lafiferty  v.  Schuylkill  &c. 
R.  Co..  124  Pa.  St.  297.  16  Atl.  869. 
3  F.  K.  A.  124  and  nnto.  10  Am.  St. 
587. 

'•^  If  the  mortgagee  is  not  given 
an  iii)i)nrtunity  tn  assert  his  rights, 
the  better  opinion  is  that  he  may 
proceed  to  foreclose  against  the 
land  as  if  it  had  never  been  con- 
demned, in   case  the  remainder   of 


877 


COMl'KXSATIOX    AND    I)\:MAGES 


1277 


iiiainlain  a  l)ill  in  (.'(|uity  for  that  ])urp()se.''-'  ^^'lu•rc  land  that 
had  l>ccn  duh-  condemned  and  paid  for  by  a  railroad  company 
which  had  never  taken  possession  of  it  was  afterward  condemned 
bv  a  second  com])an}-,  it  was  held  that  the  first  damages  should 
I'C  ])aid  to  the  first  company  and  not  to  the  original  owmer.''  The 
court  nui}-  compel  rival  claimants  of  the  award  to  establish  their 
respective  rights  by  an  appropriate  action.^*  Where  different 
interests  are  affected,  as  is  usual  in  case  of  lessor  and  lessee,  life 
tenant  and  remainder-man  and  the  like,  the  method  of  determin- 


the  land  proves  insufficient  to  sat- 
isfy the  mortgage  debt.  Adams 
V.  St.  Johnsbury  &c.  R.  Co.,  57  Vt. 
240:  Dodge  v.  Omaha  &c.  R.  Co., 
20  Nebr.  276,  29  N.  W.  936:  Ken- 
ncdj^  V.  ^Milwaukee  &c.  R.  Co.,  22 
Wis.  581:  North  Hudson  R.  Co.  v. 
Rooraem,  28  N.  J.  Eq.  450;  Severin 
V.  Cole,  38  Iowa  463.  See  also  to 
the  effect  that  tlic  compensation 
should  go  to  the  mortgagee,  Soutli 
Park  Comrs.  v.  Todd,  112  111.  379; 
Sherwood  v.  Lafayette,  109  Ind. 
411,  10  N.  E.  89,  58  Am.  Rep.  414; 
Wilson  V.  European  &c.  R.  Co.,  67 
]\Iaine  358;  Wooster  v.  Sugar  River 
&c.  Co.,  57  Wis.  311,  15  N.  W.  401; 
Omaha  Bridge  &  Terminal  R.  Co. 
V.  Reed.  69  Nebr.  514.  96  N.  W. 
276.  But  in  a  tew  jurisdictions  it 
is  held  that  it  should  l)e  paid  to  the 
mortgagor,  at  least  in  the  first  in- 
stance. Thompson  v.  Chicago  &c. 
R.  Co.,  110  Mo.  147,  19  S.  W.  11; 
Chicago  &c.  R.  Co.  v.  Baker,  102 
Mo.  553,  15  S.  W.  64:  Read  v. 
Cambridge,  126  A[ass.  427;  Bates 
V.  Boston  Elevated  R.  Co.,  187 
Mass.  328,  12  N.  E.  1017,  and  n<n 
to  a  mortgagee  out  of  possession. 
Schumackor  v.  Toberman,  56  Cal. 
508:  Rand  v.  I't.  Scott  &c.  R.  Co., 
50  Kans.  114.  31  Pac.  G'^:->\  Whit- 
ing  V.    New    Haven,   45    Conn.   303. 


The  mortgage  lien  may  be  trans- 
ferred to  the  award  in  New  York. 
In  Re  Sea  Beach  R.  Co..  121  App. 
Div.  907,  106  N.  Y.  S.  1144,  affirm- 
ed in  196  N.  Y.  533,  89  N.  E.  1112. 
Liens  against  property  of  which 
only  a  part  is  condemned  maj-  be 
shifted,  however,  to  the  portion 
not  condemned.  Oregon  Short 
Line  R.  Co.  v.  Hallock,  41  Utah 
378.  126  Pac.  394. 

•-■2  Piatt  v.  Bright,  29  N.  J.  Eq. 
128:  Wood  V.  Westborough,  140 
^lass.  403,  5  N.  E.  613.  See  also 
Bates  v.  Boston  &c.  R.  Co..  187 
^fass.  328,  72  N.  E.  1017:  Stamnes 
V.  ^lilwaukee  &c.  R.  Co.,  131  Wis. 
85,  109  N.  W.  100,  925,  111  N.  W. 

33  Dubuque  &c.  R.  Co.  v.  Diehl, 
64  Iowa  635,  21  N.  W.  117. 

^-^  Gerrard  v.  Omaha  &c.  R.  Co., 
14  Nebr.  270,  15  N.  W.  231;  Metro- 
politan Board  of  Works  v.  Sant.  38 
L.  J.  Ch.  7.  It  has  been  held  that 
where  the  mortgagee  was  not  a 
party,  the  corporation  might  pay 
tlie  damages  into  court  and  apply 
ti>  have  the  rights  of  the  parties 
adjusted  so  that  it  should  not  have 
to  pay  twice.  Wooster  v.  Sugar 
River  V.  R.  Co.,  57  Wis.  311.  15 
N.  W.  401. 


§1278 


RAILROADS 


878 


iiig  the  values  of  the  different  interests,  or  the  compensation,  is 
not  the  same  in  all  jurisdictions,  but  it  is  said  that  "whatever  the 
method  of  ascertaining  the  values  of  these  distinct  interests,  it  is 
evident  that  the  sum  of  these  values  must  be  the  full  value  of  the 
property  taken. "'^ 

§  1278  (1003a).     Measure  of  damages  to  lessee. — It  may  be 

said  gcneralh'  that  the  measure  of  damages  to  a  leasehold  in- 
terest in  land  is  its  fair  market  value  at  the  time  of  the  appropria- 
tion and  not  its  value  to  the  lessee  for  a  particular  purpose.^'' 
But  as  a  lease  may  have  no  market  value  this  is  not  always  re- 
garded as  a  satisfactorv  test."'     A  Canadian  court  holds  that  a 


ssGluck  V.  Baltimore,  81  Md. 
315,  32  Atl.  515,  48  Am.  St.  515. 
See  also  New  York  &c.  R.  Co.,  In 
re,  137  N.  Y.  95,  H  N.  E.  1054; 
Stamnes  v.  Milwaukee  &c.  R.  Co., 
131  Wis.  85,  109  N.  W.  100,  925,  111 
N.  W.  62.  In  the  first  case  cited 
the  question  as  to  whether  there  is 
any  apportionment  of  rent  is  con- 
sidered and  the  relative  rights  of 
landlord  and  tenant  where  prop- 
erty is  condemned  are  considered 
with  a  review  of  authorities  pro 
and  con,  in  Corrigan  v.  Chicago, 
144  111.  537,  ZZ  N.  E.  746,  21  L.  R. 
A.  212  and  note.  As  to  compen- 
sation as  between  heir  and  ad- 
ministrator or  personal  representa- 
tive, see  Peoria  &c.  R.  Co.  v.  Rice, 
75  111.  329;  Neal  v.  Knox  &c.  R. 
Co.,  61  Maine  298;  Boynton  v. 
Peterborough  &c.  R.  Co.,  4  Cnsh. 
(Mass.)  467;  Oliver  v.  I'ittsburgh 
&c.  R.  Co.,  131  Pa.  St.  408,  19  Atl. 
47,  17  Am.  St.  814,  all  holding  that 
the  heir  is  entitled  if  the  owner 
dies  before  the  land  is  taken;  and 
the  second  and  third  holding  also 
that  if  the  land  was  taken  during 
the   owner's   life   the   compensation 


should  be  paid  to  the  administra- 
tor. To  the  same  effect  is  Harsh- 
barger  v.  Midland  R.  Co.,  131  Ind. 
177,  27  N.  E.  352,  30  N.  E.  1083. 
Compare  Brown  v.  Arkansas  Cent. 
R.  Co.,  72  Ark.  456,  81  S.  W.  613. 
See  as  to  rights  of  remainder-man 
Bridges  v.  Southern  R.  Co.,  86  S. 
Car.  267,  68  S.  E.  551,  Ann.  Cas. 
1912A,  1056. 

'*''  Kishlar  v.  Southern  Pac.  R. 
Co.,  134  Cal.  636,  66  Pac.  848.  See 
also  Bales  v.  Wichita  Midland  &c. 
R.  Co.,  92  Kans.  771,  141  Pac.  1009. 

""  It  is  said  that  the  lessee  is  en- 
titled to  recover  for  the  loss  re- 
sulting from  the  deprivation  of  his 
right  to  remain  in  undisturbed  pos- 
session to  the  end  of  his  term  and 
that  while  his  recovery  is  restrict- 
ed ti)  the  A-aluc  of  the  unexpired 
term,  the  value  of  machinery  or 
cost  of  removing  or  replacing  it  or 
the  like,  may  be  considered  in 
some  cases  as  tending  to  prove  the 
value  of  the  leasehold  interest. 
James  McMillin  Printing  Co.  v. 
Pittsburgh  &c.  R.  Co.,  216  Pa.  504. 
65  Atl.  1091:  Getz  v.  Philadelphia 
&c.  R.  Co.,  105  Pa.  St.  547,  and  113 


P79  COMPKNSATION    AND    DAMAGES  §  127!J 

tenant  ol"  l)uil(lin,^"s  erected  on  land  sought  to  be  condemned  for 
railroad  purposes  should  be  allowed  compensation  for  the  value 
of  his  possession  under  the  lease,  as  well  as  for  the  value  of  the 
im])r()venients  made  l)y  him.  and  this  was  held  true,  although 
the  term  expressed  in  the  lease  had  expired,  where  the  lease  pro- 
vided for  the  appraisal  of  the  improvements  made  by  the  tenant 
r.nd  the  ])ayment  therefor  by  the  lessor,  or  the  renewal  of  the 
lease  on  the  same  conditions  as  the  original  lease,  and  the  lessor 
had  no  immediate  intention  of  taking  possession  of  the  premises 
and  paying  for  the  improvements,  notwithstanding  the  fact  that 
no  appraisal  had  liccn  made.^® 

§  1279  (1003b).  Apportionment  of  compensation. — As  w  ill  ])'.: 
seen  from  an  examination  of  the  authorities  referred  to  in  the 
last  two  preceding  sections,  there  is  some  conflict  upon  the  ques- 
tion as  to  how  compensation  should  l)e  paid  or  apportioned,  in 
some  instances,  as  between  parties  having  separate  interests. 
-\s  a  general  rule,  where  there  are  owners  of  separate  interests 
each  should  receive  compensation  according  to  the  damage  to 
his  own  interests,  or,  in  other  words,  the  compensation  should  be 
apportioned  according  to  their  respective  interests. ^^  In  a  com- 
paratively late  case  in  which  the  commissioners  were  unable  to 
make  such  apportionment  it  was  held  that  they  could  award  the 
compensation  in  gross  and  leave  the  court  to  make  the  appor- 
tionment.*"    Where   the   property   is   leased     the    compensation 

Pa.   St.  214,  6  Atl.  356;   Kersey  v.  N.  Y.  493,  71  X.  E.  3,  66  L.  R.  A. 

Schuylkill   &c.   R.   Co.,    133    Pa.  St.  625. 

234,  19  Atl.  553,  7  L.  R.  A.  409,  19  ^s  McGoldrich    v.    King,    8     Can. 

Am.    St.    632.     See    also    Eliret    v.  Exch.  169. 

Railroad    Co.,    151    Pa.    St.    158,    24  ■■"  Law  v.  Chicago  Sanitary  Dist.. 

Atl.  1068:  Shipley  v.  Pittsburg  &c.  197   111.   523,   64   N.    E.   536;    Miller 

R.    Co.,  216   Pa.   512,   65  Atl.    1094.  v.  Asheville.  112  N.  Car.  759,  16  S. 

And     compare     P.ales     v.     Wichita  E.    762;    Baker    v.    New    York,    31 

:\lidland  .^c.   R.  Co.,  92  Kans.  771.  App.    Div.    112,    52    N.    Y.    S.    533; 

141   Pac.   1009.     A  covenant  for  re-  Rimback  v.  Essex  Co.  Park  Comrs., 

ncwal    may    increase    the    value    of  62    N.   J.    L.   494,   41    Atl.   699,   and 

the   term   and   decrease  that   of  the  authorities      cited      in      subsequent 

reversion.     North  Penna.  R.  Co.  v.  notes  to  this   section. 

Davis,    26    Pa.    St.    238.     See     also  *«  Cincinnati    &c.    R.    Co.   v.    Bay 

Storms   V.    :\ranhattan    R.    Co..    178  City   &c.  R.   Co.,   106  Mich.  473,  64 


§1279 


HAILK(XVDS 


880 


should  usually  be  apportioned  between  the  lessor  and  lessee  ac- 
cording to  their  respective  interests/^  but  it  has  been  held  that  a 
lessee  who  takes  his  lease  while  the  proceedings  are  pending  is 
not  entitled  to  have  compensation  awarded  him.'*-  So,  where  a 
lease  for  years  provided  that  it  should  not  affect  the  right  of  the 
lessor  to  demand  and  recover  any  damage  resulting  from  the  con- 
struction of  railroads  to  the  same  extent  as  if  he  were  in  posses- 
sion, it  was  held  that  the  lessee  could  not  recover  any  damages 
for  injury  to  his  term  resulting  from  the  construction  of  a  rail- 
road.'*^ It  has  likewise  been  held  that  the  renewal  of  a  lease,  or 
;<.  holding  over,  after  the  commencement  of  condemnation  pro- 
ceedings does  not  give  the  lessee  any  new  right  to  compensa- 
tion.^' at  least  unless  the  original  lease  contained  a  covenant  for 
renewal;  but  it  has  l)een  held  otherwise  where  there  was  a  cove- 
nant for  renewal  and  the  new  lease  is  considered  as  a  continua- 
tion of  the  old.^"'  If  the  estates  of  a  life  tenant  and  remainder- 
man are  both  damaged  so  as  to  entitle  them   to  compensation. 


N.  \\'.  471.  This,  however,  was 
under  a  statute  so  providing. 

■*!  Bentonville  R.  Co.  v.  Baker, 
45  Ark.  252;  Booker  v.  Venice  &c. 
R.  Co.,  101  111.  333;  Schreiber  v. 
Chicago  &c.  R.  Co.,  115  111.  340,  3 
N.  E.  427;  Douglas  v.  Indianapolis 
&c.  Traction  Co.,  37  Ind.  App.  332, 
76  N.  E.  892:  Pitts  v.  Baltimore,  73 
Md.  326,  21  Atl.  52;  Board  v.  John- 
son, 66  Miss.  248,  6  So.  199;  Biddle 
v.  Hussman,  23  Mo.  579;  Livings- 
ton V.  Sulzcr,  19  Hun  (N.  Y.)  375. 
But  see  Little  Rock  &c.  R.  Co.  v. 
Allister,  62  Ark.  1,  34  S.  W.  82. 

*-  Davis  V.  Titusville  &c.  R.  Co., 
114  Pa.  St.  308,  6  Atl.  736;  Chicago 
V.  Messier.  38  Fed.  302.  But  see 
Justice  V.  Philadelphia,  169  Pa.  St. 
503,  52  Atl.  592.  And  there  are 
other  e.xceptional  cases  in  which 
a  lessee  may  not  be  entitled  to 
compensation.  See  Becker  v.  Chi- 
cago  &c.   R.    Co.,    126   111.    436,    18 


X.  E.  564;  Matter  of  Morgan  &c. 
R.  Co.,  32  La.  Ann.  371.  Compare 
also  Little  Rock  &c.  R.  Co.  v. 
Allister,  62  Ark.  1,  ,34  S.  W.  82. 

■*•"'  Burbridgc  v.  New  Albany  &c. 
R.  Co.,  9  Ind.  546.  See  also  Illi- 
nois Cent.  R.  Co.  v.  Fcrrcll.  108 
111.  App.  659,  where  the  injury  from 
overflows  was  constantly  recurring 
and  existed  when  the  land  was 
leased. 

•♦^  St.  Louis  V.  Xelson.  108  Mo. 
App.  210.  83  S.  W.  271;  Schreiber 
V.  Chicago  &c.  R.  Co.,  115  III.  340, 
3  N.  E.  427:  Witmark  v.  New  York 
El.  R.  Co..  149  N.  Y.  393,  44  N.  E. 
78. 

•••''  Kearney  v.  Metropolitan  El. 
R.  Co.,  129  N.  Y.  76,  29  N.  E.  70: 
Storms  V.  Manhattan  R.  Co..  178 
N.  Y.  493,  71  N.  E.  3,  66  L.  R.  A. 
625;  North  Pennsylvania  R.  Co.  v. 
Davis,  26  Pa.  St.  238. 


881  COMPENSATION    AND    DAMAGES  §  1280 

each  is  entitled  to  ct)m])ensati()ti  according"  to  the  damag'e  to  his 
interest,  and  it  is  apportioned  accordingly.''^'  As  between  mort- 
gagor and  mortgagee,  as  already  intimated,  the  mortgagee  is,  in 
most  jurisdictions,  entitled  to  he  compensated  for  the  injury  to 
his  interest  and  hrst  paid,  altlu)Ugh  the  residue,  if  any,  may  tiien 
go  to  the  mortgagor;'"  but  in  some  jurisdictions  it  is  held  that 
the  mortgagor  is  entitled  to  be  paid  the  entire  compensation, 
leaving  the  mortgagee  to  his  remedy  against  the  mortgagor,**  at 
least  where  the  mortgagor  is  in  possession.*^ 

§  1280   (1003c).     Occupying  claimants  on  public  lands. — It  is 

the  rule  that  one  occupying  government  land  as  a  homestead 
under  a  valid  entry  and  having  a  legal  vested  interest  therein 
can  not  be  deprived  of  any  portion  of  this  interest  except  by  due 

•*"  Indiana  &c.  R.  Co.  v.  Conness,  Rochester,    In  re,   136   N.   Y.  83.  32 

184  111.  178,  56  N.  E.  402;  Horney  N.  E.  702,  19  L.  R.  A.  161;  Magee  v. 

V.    Coldbrook,    65    111.     App.     477;  Brooklyn,  144  N.  Y.  265,  39  N.  E. 

l>urbridge   v.    New  Albany   &c.    R.  87;   State   Line   R.   Co.  v.  Playford 

Co..   9   Ind.   546;    Kansas    City    &c.  (Pa.),  14  Atl.  355;   Martin  v.  Lon- 

R.    Co.    V.    Weaver,    86     Mo.    473;  don  &c.  R.  Co.,  13  L.  T.  R.  N.  S. 

Cogan  v.  McCabe,  23  Misc.  739,  52  355.     As  to  his   superior   rights   to 

N.  Y.  S.  48;  Pennsylvania  R.  Co.  v.  creditors    of    the    mortgagor,     see 

Bentley,  88  Pa.  St.  178;  Cureton  v.  Sawyer  v.  Landers,  56  Iowa  422,  9 

South  Bound  R.  Co.,  59  S.  Car.  371,  N.  W.  341;  Wood  v.  Westborough, 

37  S.  E.  914.              •  140  Mass.  403,  5  N.  E.  613;  Keller 

"'Chicago  v.  Tebbetts,  104  U.  S.  v.    Bading,    169    111.    152,    48    N.    E. 

120.    20    L.    cd.    655;     South     Park  436,  61   Am.  St.  159. 

Comrs.  V.  Todd,   112  111.  379;   Cal-  "«  See  Whiting  v.  New  Haven,  45 

umet   River   R.    Co.   v.   Brown,   136  Conn.  303;  Breed  v.  Eastern  R.  Co. 

111.  322,  26  N.  E.  501,  12  L.  R.  A.  5  Gray  (Mass.)  470  and  note;  Read 

84;  Sherwood  v.  Lafayette,  109  Ind.  v.  Cambridge,  126  Mass.  427;   Chi- 

411,    10  N.   E.  89,  58  Am.  St.  414;  cago  &c.  R.  Co.  v.  Baker,  102  Mo. 

Moritz   V.    St.   Paul,   52   Minn.   409,  553,  15  S.  W.  64.     See  also  Aggs  v. 

54   X.  W.  370;   Boutelle  v.   Minne-  Shackelford    County,    85    Tex.    145, 

apolis.  59  Minn.  493.  61  N.  W.  554;  19    S.    W.    1085    (where    mortgage 

Lumbermen's   &c.   Co.  v.   St.   Paul,  debt   had   not   matured). 

77     Minn.     410.     80     N.     W.     357;  "^  Rand  v.  Ft.   Scott  &c.   R.  Co.. 

Thompson   v.   Chicago  &c.  R.  Co.,  50  Kans.    114,  31    Pac.   683;    Parish 

110  Mo.  147,  19  S.  W.  77;  Piatt  v.  v.    Gilmanton,    11    N.   H.   293.     See 

Bright,  29  N.  J.   Eq.  128;   Gray  v.  also   Schumacker  v.  Toberman.   56 

Case,  51  N.  J.  Eq.  426,  26  Atl.  805;  Cal.  508. 


^  1281  RAILROADS  882 

process  of  law  and  the  i)a}nient  of  reasonable  compensation/^ 
The  patent  issued  to  such  a  settler  is  held  to  relate  back  to  the 
date  of  the  settlement  and  to  cut  ofif  all  intervening  claimants.'^ 
On  this  general  subject  the  supreme  court  of  Kansas  uses  this 
language:  "A  settler  on  the  public  lands  of  the  United  States, 
A\'ho  makes  a  \alid  homestead  entry,  and  continues  to  reside  on 
and  improve  the  land  entered  in  compliance  with  the  land  laws, 
has  the  exclusive  right  to  its  possession  and  use,  and  to  the  im- 
provements made  thereon ;  and  he  also  acquires  equities  in  the 
hmd  itself,  which  increase  from  the  time  the  entry  is  made  until 
the  complete  title  is  earned.  Such  a  settler  may  sell  or  transfer 
a  portion  of  his  homestead  for  a  right  of  way  for  a  railroad,  or 
his  interest  therein  inay  be  condemned  and  appropriated  for  such 
jnirpose  upon  ad\ersary  proceedings,  and  by  paying  full  com- 
pensation to  the  settler  therefor.  A  homesteader  who  has  en- 
tered, and  is  proceeding  lawfully  to  perfect  his  title  to  the  land 
entered,  suffers  an  injury  by  the  building  of  a  railroad  over  his 
homestead. which  differs  only  in  degree'from  that  sustained  from 
the  same  cause  by  one  who  has  the  complete  title. "■'^- 

§  1281  (1004).  Effect  of  assessment  of  damages. — The  gen- 
eral rule  is  that  the  assessment  of  damages  in  apjiropriation  pro- 
ceedings is  presumed  to  include  all  injuries  resulting  from  the 
particular  appropriation.  The  corporation  acqiiires  the  right  to 
construct  its  road  in  a  suitable  and  proper  manner  for  its  own 
convenience  and  the  accommodation  of  the  public.  And  no 
action  can  be  maintained  by  the  owner  either  then  or  at  any 
future  time  for  damages  resulting  from  the  proper  construction 
and  maintenance  of  the  road  across  his  land.^'^     The  assessment 

^0  Oklahoma   City  v.   McMasters,  •^■"•Porter  v.   Midland   R.   Co.,   125 

12    Okla.   570,   11   Pac.    1012;    Burl-  Ind.   476,   25   N.    E.   556;    White   v. 

ington    &c.    R.    Co.   v.   Jolinson,   38  Chicago  &c.   R.   Co..    122   Tnd.  317, 

Kans.  142,  16  Pac.  125.  23   N.   E.  782,  7   L.  R.  A.  257;   In- 

^1  Witherspoon      v.      Duncan,      4  dianapolis   Sec.    R.    Co.    v.    Piranson, 

Wall.    (U.   S.)    210,   18   L.   ed.   339.  172  Ind.  383.  86  N.  E.  834,  88  N.  E. 

See  also   Sturr  v.    Beck,   133  U.   S.  594  (citing  text);  Cleveland  &c.  R. 

541,  10  Sup.  Ct.  350,  Z2>  L.  ed.  761.  Co.  v.  Hadley,  179  Ind.  429,  101  N. 

•'•2  Burlington  &c.  R.  Co.  v.  John-  E.    473;    Cleveland    &c.    R.    Co.    v. 

son,  38  Kans.  142,  16  Pac.  125.  Griswold,    51     Ind.    App.    497,    97 


S83 


COMI'KNSATION    AXI)    DAMAGES 


§1281 


is  often  said  "to  be  made  once  for  all."  The  future  necessities  as 
well  as  the  present  needs  of  the  company  are  conclusively  pre- 
sumed to  have  been  taken  into  consideration,  and  the  award  of 
the  appraisers  is  a  bar  to  an  action  for  damages  for  any  use  of 
the  right  of  w^ay  which  the  future  needs  of  the  corporation  may 
require."'*     The  fact  that  the  injuries  were  unforeseen,^^  or  that, 


K.  E.  1030;  Elizabethtown  &c.  R. 
Co.  V.  Combs,  10  Bush.  (Ky.)  382, 
19  Am.  Rep.  67;  Chesapeake  &c. 
Canal  Co.  v.  Grove,  11  G.  &  J. 
(Md.)  398;  Fovvle  v.  New  Haven 
&c.  R.  Co.,  112  Mass.  334,  17  Am. 
Rep.  106;  Bailey  v.  Woburn,  126 
i\Iass.  416;  JMcCormick  v.  Kansas 
City  &c.  R.  Co.,  57  Mo.  433;  Dear- 
born V.  Boston  &c.  R.  Co.,  24 
N.  H.  179;  Perley  v.  Boston  &c.  R. 
Co.,  57  N.  H.  212;  Van  Schoick  v. 
Delaware  &c.  Canal  Co.,  20  N.  J. 
L.  249;  Furniss  v.  Hudson  River 
R.  Co.,  5  Sandf.  (N.  Y.)  551;  Tuck- 
er V.  Erie  &c.  R.  Co.,  27  Pa.  St. 
281;  Pittsburgh  &c.  R.  Co.  v. 
Gilleland,  56  Pa.  St.  445,  94  Am. 
Dec.  97.  See  also  Bunting  v.  Oak 
Creek  Drainage  Dist.,  99  Nebr.  843. 
157  N.  W.  1028,  L.  R.  A.  1918B. 
1004;  St.  Louis  &c.  Ry.  Co.  v. 
Barnes  (Tex.  Civ.  App.),  162  S.  W. 
Z7Z\  Dose  V.  Seattle,  78  Wash.  571. 
139  Pac.  594. 

5*  White  V.  Chicago  &c.  R.  Co., 
122  Ind.  317,  23  N.  E.  782.  7  L.  R. 
A.  257;  Cleveland  &c.  R.  Co.  v. 
Hadley,  179  Ind.  429,  441.  101  N.  E. 
473;  Chicago  &c.  R.  Co.  v.  Smith, 
in  Til.  i6i.  See  also  Smith  v. 
Hall,  103  Iowa  95,  72  N.  W.  427. 
428;  Yazoo  &c.  R.  Co.  v.  Davis,  7Z 
Miss.  678,  19  So.  487,  32  L.  R.  A. 
262.  55  Am.  St.  562:  Atchison  &c. 
R.  Co.  V.  Forney.  35  Nebr.  607.  53 
N.  W.  585,  ?>7  \m.  St.  450.  So  it 
has    been    held    that   where    a    rail- 


road company  fails  to  comply  with 
the  statute  as  to  payment  of  com- 
pensation and  an  abutting  owner 
sues  for  the  damages,  all  damages 
should  be  recovered  in  one  action. 
Keyser  v.  Lake  Shore  &c.  R.  Co., 
142  Mich.  143,  105  N.  W.  143;  In- 
diana &c.  R.  Co.  V.  Allen,  113  Ind. 
308,  15  N.  E.  451,  3  Am.  St.  650. 
Where  a  change  of  location  is 
made  under  authority  of  the  legis- 
lature, the  land-owner  may  re- 
cover damages  for  the  alteration, 
if  any  actual  damage  or  injury  has 
been  sustained  thereby  to  the  ex- 
tent of  such  additional  injury  and 
no  more.  Baltimore  &c.  R.  Co.  v. 
Compton,  2  Gill  (Md.)  20.  A  land- 
owner who  has  accepted  the  dam- 
ages awarded  to  him  upon  con- 
demnation and  confirmed  on  ap- 
peal, is  estopped  to  dispute  tlie 
company's  right  to  occupy  the 
lands  for  any  use  authorized  by 
the  company's  charter.  Dodge  v. 
Burns,  6  Wis.  514. 

^^  Aldrich  v.  Cheshire  &c.  R.  Co.. 
21  N.  H.  359,  53  Am.  Dec.  212.  In 
this  case,  a  spring  which  had  sup- 
plied the  owner's  buildings  with 
water  was  drained  by  an  excava- 
tion made  in  constructing  the  road,, 
and  he  was  denied  any  additional 
compensation,  although  in  the  as- 
sessment of  damages,  the  probabil- 
it}'  of  destroying  the  spring  had 
not  been  considered. 


c;i-si 


KAILHUADS 


SS4 


owing  to  the  lack  of  c-my  definite  plan  for  construction  on  the 
part  of  the  railroad,  it  was  impossible  to  know  at  the  time  the 
(iama.^es  were  assessed  wliat  dania.nes  would  1)C'  done  in  makin.^- 
cuts  and  I'dls.  and  construelini^'  bridges.'"''  does  not  altrr  the  rule. 
The  jury  are.  as  a  rule.  conclusi\el}-  i)resumed  to  have  assessed 
tlie  damages  for  every  injury  that  they  could  legally  include  in 
their    assessment."'     If    an    item    of    damages    was    erroneously 


OB  Where  the  agents  of  the  coni- 
])any  represented  to  the  commis- 
sioners making  the  appraisement 
that  the  road  wonld  be  construct- 
ed in  a  particular  manner,  thereby- 
reducing  the  appraisement  below 
what  it  would  otherwise  have  been, 
and  the  companj^  constructed  the 
road  by  a  different  plan  which 
caused  nuich  greater  damage  to 
the  land-owner,  it  was  held  that  he 
could  not  maintain  an  independent 
action  for  constructing  the  railroad 
contrary  to  the  representations 
upon  which  the  award  was  based, 
but  that,  so  long  as  the  award  was 
not  set  aside  by  appeal  or  by  pro- 
ceedings to  review,  it  was  binding 
to  all  present  or  future  damages 
growing  out  of  the  construction  of 
the  road  in  any  careful  and  proper 
manner.  Rutman  v.  Vermont  Cen- 
tral R.  Co..  27  Vt.  500. 

•■''  Cairo  &c.  R.  Co.  v.  Turner.  ,31 
/\rk.  494,  25  Am.  Rep.  564:  Lafay- 
ette &c.  R.  Co.  V.  Smith.  6  Tnd. 
249;  Lafayette  &c.  R.  Co.  v.  New 
Albany  &c.  R.  Co..  13  Tnd.  90.  74 
Am.  Dec.  246:  White  v.  Chicago  &c. 
R.  C...  122  hid.  .U7.  23  N.  R.  782. 
7  L.  R.  A.  257:  Porter  v.  Midland 
R.  Co.,  125  Ind.  476;  Daniels  v. 
Chicago  &c.  R.  Co..  35  Iowa  129, 
14  Am.  Rep.  490;  Stodhill  v.  Chi- 
cago &c.  R.  Co..  43  Iowa  26.  22 
Am.  Rep.  211;  Mason  v.  Kennebec 


&c.  R.  Co..  31  .Maine  215:  P,...  )ihl)y  v. 
.\ndr()Scoggin  &c.  R.  Co..  51  Maine 
318:  Chesapeake  &c.  Canal  Co.  v. 
Grove.  11  G.  &  J.  (.Md.)  398:  Balti- 
more &c.  R.  Co.  V.  Magruder.  34 
:\Id.  79,  6  Am.  Rep.  310:  Mcllen  v. 
Western  R.  Co..  4  Gray  (Mass.) 
301;  Stevens  v.  Proprietors  of  Mid- 
dlesex Canal.  12  ^lass.  466;  Brown 
v.  Beatty,  '34  Miss.  227.  69  Am. 
Dec.  389;  Clark  v.  Hannibal  &c.  R. 
Co.,  36  Mo.  202;  Lindell  v.  Hanni- 
bal &c.  R.  Co..  36  Mo.  543:  Aldrich 
v.  Cheshire  R.  Co..  21  X.  H.  359. 
53  Am.  Dec.  212;  Dearborn  v.  Bos- 
ton &c.  R.  Co..  24  X.  IT.  179:  Per- 
ley  v.  Boston  &c.  R.  Co..  57  X.  H. 
212:  iMU-niss  v.  Hudson  River  R. 
Co.,  5  Sandf.  (N.  Y.)  551;  Selden 
v.  Delaware  &c.  Canal  Co..  29  N. 
Y.  634;  Mclntirc  v.  Western  &c. 
R.  Co..  67  N.  Car.  278;  Philadel- 
phi.H  cS:c.  R.  Co.  V.  W'illiams,  54 
Pa.  St.  103:  Cumberland  V-aUcy  R. 
Co.  v.  McLanahan.  59  T'.-i.  St.  23; 
I'chr  V.  Schuylkill  Xav.  C"....  M  Pa. 
St.  161:  Colcough  v.  Xashvillc  &c. 
R.  Co.,  2  Head.  fTrnn.t  171:  Ten- 
nessee &c.  R.  Co.  \-.  .\(lams.  3 
Mead.  (Tenn.)  596;  Vermont  Cent. 
K.  Co.  V.  P.axter.  22  Vt.  365:  Sabin 
V.  \'ermont  Cent.  R.  Co..  25  Vt. 
363;  l^ettibone  v.  La  Crosse  &c.  R. 
Co..  14  Wis.  443;  Sherman  v.  Mil- 
waukee &c.  R.  Co..  40  WMs.  645; 
Little  V.   Dublin    &c.   R.    Co.,   7  Ir. 


885  COMPENSATION     AND    DA.MACiES  §  1282 

omitted  l)y  the  commissioners  or  jury  in  making  the  assessment 
of  damaj>"es.  or  if  they  proceeded  upon  erroneous  principles,  the 
remedy  is  ])y  ap])cal  or  l)y  ])rocec'(lint;s  to  re\iew.  and  not  1)\'  an 
independent  suit."'^  ihit  where  the  owner  acce])ts  and  retains 
the  damai;es  awarded  it  has  been  held  that  he  can  not  afterwards 
claim  greater  damai^es  either  in  a  direct  a])i)eal  f)r  in  a  collateral 
action."'" 

§  1282  (1005).  Award  of  compensation  does  not  cover  negli- 
gent acts. — Compensation  is  awarded,  no  matter  what  may  be 
the  nature  of  the  condemnation  proceedings,  for  the  property 
taken  and  not  for  injuries  resulting  from  negligence  in  the  con- 
struction or  operation  of  the  railroad.  AMiile  it  is  the  general 
rule  that  damages  are  awarded  once  lor  all,  the}-  are,  neverthe- 
less, not  given  to  compensate  a  party  for  injuries  caused  him  b}- 
the  negligence  of  the  railroad  compan}-  in  the  construction  or 
operation  of  its  road.  In  awarding  damages,  the  jury,  commis- 
sioners, viewers,  appraisers,  or  whatever  tribunal  makes  the 
award,  proceeds,  in  legal  contemplation,  upon  the  theory  that  in 
constructing  and  operating  its  road  the  railroad  company  wall 
use  ordinary  and  reasonable  care  to  prevent  injury  to  land- 
owners.""    In  some  of  the  cases  it  is  held  that  injuries  caused 

C.    L.   82.      See   also    Lj'iich    v.    St.  ^°  Stauffer    v.    Cincinnati    &c.    R. 

Louis  &c.  R.  Co..  180  Mo.  App.  169,  Co.,    33    Tnd.    App.    356.    70    N.    E. 

168  S.  W.  224.  543.      See    also    post,    §    1361;    and 

58  Butnian    v.    \'ermont    Cent.    R.  Clay  County  v.   Howard,  95    Nebr. 

Co..  27  Yt.  500;    ^TcArthur  v.  Mc-  389,  145  N.  W.  982;  Stoope  v.  Kit- 

}':acliin.  64  N.  Car.  454:  Morris  Ca-  tanning    Tel.    Co..   242    Pa.    556,   89 

nal  &c.  Co.  V.  Seward,  23  X.  J.  L.  Atl.    686. 

219:    People   v.    Wasson.   64    X.    V.  «« Jones   v.   Chicago   &c.    R.    Co., 

167;    Spaulding    v.    Arlington,    126  68   III.   380;   White   v.    Chica.go   &c. 

Mass.  492.     So,  in  case  the  owner  R.  Co..   122  Ind.  317,  329.  23  X'.  E. 

presented  his  claim  for  damages  to  782,  7  L.   R.  A.  257;   Hunt  v.  Iowa 

the  commissioners,  and  it  was  dis-  &c.   R.  Co..  86  Towa   15,  52  N.  W. 

allowed    by   them    under    a    misap-  668,  41  .\m.  St.  473;  Sinia  v.  Louis- 

jM-ehension  of  their  authorities  and  ville    &c.    R.   Co..   71    Miss.   547.    14 

duties,  the  owner's  sole  remedy  is  So.    87:    Fremont    &c.    R.    Co.    v. 

by     a     ]irnceeding     to     review     the  Whalen.    11    Xebr.    585,    10    N.    W. 

award.      \'an    Schoick  v.    Delaware  491 :  Ruting  v.  Oak  Creek  Drainage 

<^c.  R.  Co..  20  X.  J.  L.  249.  Dist..  99  Xebr.  843.  157  X.  W.  1028. 


§  1-282 


RAILKOADS 


886 


liy  negligence  arc  not  covered  l)y  the  assessment  even  though  the 
negligent  acts  were  clone  before  the  damages  were  assessed/'^ 
llie  rule  applies  to  negligent  interference  with  water  courses,  as 


Ann.  Cas.  1918B.  1004;  :\[arcli  v. 
Portsmouth  &c.  R.  Co.,  19  N.  H. 
372;  Wheeler  v.  Rochester  &c.  R. 
Co.,  12  Barb.  (N.  Y.)  227;  Setzler 
V.  Pennsylvania  &c.  R.  Co.,  112  Pa. 
St.  56,  4  Atl.  370;  Nason  v.  Woon- 
sockct  &c.  R.  Co.,  4  R.  I.  ZIT: 
Spencer  v.  Hartford  &c.  R.  Co..  10 
R.  I.  14;  Neilson  v.  Chica<?o  iS:c. 
R.  Co.,  58  Wis.  516,  17  X.  W.  310. 
In  Kansas  City  &c.  R.  Co.  v. 
Lackey,  72  Miss.  881,  16  So.  909, 
48  Am.  St.  589,  the  rule  was  thus 
stated:  "In  the  condemnation  pro- 
ceedings the  owner  received  com- 
pensation from  the  railroad  com- 
pany only  for  such  damages  as  lie 
would  sustain  bj'^  the  proper  con- 
struction of  its  line.  Neither  tlic 
owner  nor  the  commissioners  who 
condemned  the  right  of  wa}^  and 
awarded  compensation,  would  have 
been  justified,  the  owner  in  asking, 
or  the  commissioners  in  imposing, 
any  sum  of  money  for  damages  to 
be  due  b}-  an  improper  construction 
of  the  railroad  thereafter.  The  pre- 
sumption was  that  the  railroad 
would  properly  construct  its  road, 
and  hence  no  damages  could  prop- 
erly have  been  awarded  for  injuries 
that  could  never  occur  if  appellant 
properly  constructed  its  road." 
See  Fleming  v.  Chicago  &c.  R.  Co., 
34  Iowa  353;  Arkansas  Cent.  R.  Co. 
V.  Smith,  71  Ark.  189,  71  S.  W.  947: 
Cleveland  &c.  R.  Co.  v.  Doan,  47 
Ind.  App.  322,  94  N.  E.  598;  King 
V.  Iowa  &c.  R.  Co.,  34  Iowa  458; 
Miller  V.  Keokuk  &c.  R.  Co.,  63 
Iowa  680,  685,  16  N.  W.  567;  Key- 


scr  V.  Lake  Shore  &c.  Ry.  Co.,  142 
Mich.  143,  105  N.  W.  143;  Mullen 
V.  Lake  Drummond  &c.  Co.,  130 
N.  Car.  496,  41  S.  E.  1027,  61  L.  R. 
A.  833  and  note;  Norfolk  &c.  R. 
Co.  V.  Carter,  91  Va.  587,  22  S.  E. 
517. 

«^  Selma  &c.  R.  Co.  v.  Keith,  53 
Ga.  178;  JNIissouri  &c.  R.  Co.  v. 
Ward,  10  Kans.  352;  Blodgett  v. 
Utica  &c.  R.  Co.,  64  Barb.  (N.  Y.) 
580;  Oregon  &c.  R.  Co.  v.  Barlow. 
3  Ore.  311;  Mathews  v.  St.  Paul 
&c.  R.  Co.,  18  Minn.  434;  McClin- 
ton  V.  Pittsburg  &c.  R.  Co.,  66  Pa. 
St.  404.  See  Pierce  v.  Worcester 
&c.  R.  Co.,  105  Mass.  199;  Clark 
V.  Vermont  &c.  R.  Co.,  28  Vt.  103. 
It  is  held  that  where  the  assess- 
ment is  made  after  the  road  is  con- 
structed, the  jury  in  assessing  dam- 
ages may  take  into  account  the 
manner  in  which  it  is  built.  Hayes 
V.  Ottawa  &c.  R.  Co.,  54  111.  2,1Z\ 
Hooker  v.  New  Haven  &c.  R.  Co., 
15  Conn.  312;  Terre  Haute  &c.  R. 
Co.  V.  McKinley,  Zl  Ind.  274;  Flem- 
ing V.  Chicago  &c.  R.  Co.,  34  Iowa 
353;  Gear  v.  Chicago,  C.  &  D.  R. 
Co.,  43  Iowa  83;  Mason  v.  Kenne- 
bec &c.  R.  Co.,  31  Maine  215: 
Whitehouse  v.  Androscoggin  R. 
Co.,  52  Maine  208:  Baltimore  &c. 
R.  Co.  V.  Reaney,  42  Md.  117;  Pro- 
prietors of  Locks  and  Canals  v. 
Nashua  &c.  R.  Co.,  10  Gush. 
("Mass.)  385;  Hazen  v.  Boston  &c. 
R.  Co.,  2  Gray  (Mass.)  574;  Ran 
V.  ]\Iinnesota  Valley  R.  Co.,  13 
Minn.  442;  McCormick  v.  Kansas 
City  &c.  R.  Co.,  57  Mo.  433;  Dear- 


887 


COMPENSATION    AND    DAMAGES 


§1282 


where  ri  stream  is  wrong-fully  diverted,"-  or  otherwise  interfered 
with  by  the  negligent  construction  of  a  hridge.*^"  The  rule  has 
been  extended  to  interference  w^ith  lateral  support.  Thus  it  has 
also  been  held  that  \vhere  exca\ations  are  made  by  which  the 
adjoining-  soil  is  unnecessarily  deprived  of  support  and  caused  to 
give  away  and  slide  into  the  cut,  the  company  is  liable.®*  So  in 
a  case  where  property  was  damaged  beyond  the  mere  incidental 
inconvenience,  which  unavoidably  follows  the  construction  of 
tunnels  and  the  operation  of  the  railroad  trains  therein,  it  was 
held  that  property  owners  afifected  were  entitled  to  recover  the 
damages  without  proof  of  negligence  of  the  railroad,  though  the 
constructvon  of  the  tunnel  and  the  operation  of  the  trains  therein 


born  V.  Boston  &c.  R.  Co.,  24  X 
H.  179;  Eaton  v.  Boston  &c.  R 
Co.,  51  N.  H.  504,  12  Am.  Rep.  147 
Perley  v.  Boston  &c.  R.  Co.,  57  N 
H.  212;  Brown  v.  Cayuga  &c.  R 
Co.,  12  N,  Y.  486;  Bellinger  v.  New 
York  Central  R.  Co.,  23  X.  Y.  42 
Oregon  &c.  R.  Co.  v.  Barlow,  3 
Ore.  311;  Watson  v.  Pittsburg  &c. 
R.  Co.,  2,7  Pa.  St.  469;  Pittsburg 
&c.  R.  Co.  V.  Gilleland,  56  Pa.  St. 
445,  94  Am.  Dec.  97;  Fehr  v. 
Schuylkill  Nav.  Co.,  69  Pa.  St.  161; 
Colcough  V.  Nashville  &c.  R.  Co., 
2  Head  (Tenn.)  171;  Vermont  Cen- 
tral R.  Co.  V.  Baxter,  22  Vt.  365; 
Hatch  V.  Vermont  Cent.  R.  Co.,  25 
^'t.  49,  28  Vt.  142;  Clark  v.  Ver- 
mont &c.  R.  Co.,  28  Vt.  103;  Wa- 
terman v.  Connecticut  ^c.  R.  Co., 
30  Vt.  610,  7i  Am.  Dec.  326;  South- 
side  R.  Co.  V.  Daniel,  20  Grat. 
(Va.)  344;  Lyon  v.  Green  Bay  &c. 
R.  Co.,  42  Wis.  538;  Lawrence  v. 
Great  Northern  R.  Co.,  16  Q.  B. 
643;  Turner  v.  Shefticid  &c.  R.  Co.. 
10  ^[.  &  W.  425;  Brand  v.  Ham- 
mersmith &c.  R.  Co.,  L.  R.  2  Q.  B. 
223,  L.  R.  4  H.  L.  171. 


"-Stodghill  V.  Chicago  &c.  R. 
Co.,  43  Iowa  26,  22  Am.  Rep.  211; 
Baltimore  R.  Co.  v.  Magruder,  34 
-Md.  79,  6  Am.  Rep.  310. 

«'5  Selma  &c.  R.  Co.  v.  Keith,  53 
Ga.  178;  Spencer  v.  Hartford  &c. 
R.  Co.,  10  R.  L  14;  Pittsburgh  &c. 
R.  Co.  V.  Gilleland,  56  Pa.  St.  445, 
94  Am.  Dec.  97.  See  also  Atchison 
.S:c.  R.  Co.  V.  Eldridge,  41  Okla. 
463,   139  Pac.  254. 

64  Dyer  V.  St.  Paul,  27  Minn.  457; 
Quincy  v.  Jones,  76  111.  231,  20  Am. 
Rep.  243;  Metropolitan  Board  of 
Works  V.  Metropolitan  R.  Co.,  Z7 
L.  J.  C.  P.  281,  38  L.  J.  C.  P.  172. 
See  also  Mosier  v.  Oregon  &c.  R. 
Co.,  39  Ore  256,  64  Pac.  453,  87 
Am.  St.  652;  Pettit  v.  Jamestown 
&c.  R.  Co.,  222  Pa.  St.  490,  71  Atl. 
1048,  21  L.  R.  A.  (N.  S.)  318.  The 
general  subject  as  to  whether  such 
damages  are  included  in  the  award 
in  eminent  domain  proceedings  as 
for  a  taking  has  already  been  con- 
sidered. See,  however,  note  to 
^Manning  v.  New  Jersey  &c.  R.  Co. 
80  N.  T.  L.  349.  7?,  At).  200,  32  L.  R. 
A.  (N.  S.)  15S. 


§  1283 


RAILROADS 


888 


Avcre  luulcr  the  direct  authority  of  the  leji^islature  of  the   state 
and  citv  wherein  the  tunnels  were  constructed.'*"' 

§  1283  (1006).  Interest — Allowance  of. —  The  i^eneral  rule  is 
that  interest  should  be  allowed  to  the  land-owner  from  the  time 
of  the  taking  in  all  cases  where  there  is  any  delay  in  makin.i:^ 
Iiayment.*"'"  Thus,  where,  by  the  location  of  its  road  a  railroad 
company  acquires  the  right  of  immediate  entry,  interest  must 
usually  be  allowed  from  the  date  of  the  location."'     And  the  fact 


"■'  Baltimore  Belt  R.  Co.  v.  Sat- 
tlcr.  100  Md.  306,  59  Atl.  654.  See 
also  Davenport  &c.  R.  Co.  v.  Sin- 
net,  111  111.  App.  75. 

•56  In  Williams  v.  New  Orleans 
&c.  R.  Co.,  60  Miss.  689,  it  appeared 
that  the  railroad  company  had  had 
the  damages  duly  assessed  some 
years  before,  but  had  taken  and  re- 
tained possession  of  a  part  of  the 
land  condemned  without  paying  or 
tendering  the  assessed  .damages. 
The  court  held  that  "until  there  has 
been  such  payment  or  tender  the 
one  party  has  acquired  nothing  and 
the  other  lost  nothing,"  and  that, 
therefore,  the  land-owner  was  en- 
titled to  compensation  for  the  val- 
ue of  the  land  taken  as  it  was  at 
the  date  of  the  trial.  But  it  al- 
lowed him  his  election  whether  he 
would  take  that  value  or  the  sum 
awarded  upon  the  former  attempt 
at  condemnation  with  interest  from 
the  date  of  the  award.  In  support 
of  the  text  see  Concord  R.  Co.  v. 
Greely,  23  N.  H.  237;  Missouri 
River  &c.  R.  Co.  v.  Owen,  8  Kans. 
409;  Bangor  &c.  R.  Co.  v.  Mc- 
Comb,  60  Maine  290;  Presbrey  v. 
Old  Colony  R.  Co.,  103  Mass.  1; 
Reed  v.  Hanover  Branch  R.  Co., 
105  Mass.  303;  Old  Colony  R.  Co. 
V.  Miller,  125  Mass.  1,  28  Am.  Rep. 


194;  Knauft  v.  St.  Paul  &c.  R.  Co., 
22  Minn.  173:  Webster  v.  Kansas 
City  &c.  R.  Co.,  116  Mo.  114,  22 
S.  W.  474;  Miller  v.  St.  Louis  &c. 
R.  Co.,  162  Mo.  424,  63  S.  W.  85; 
Shattuck  V.  Wilton  R.  Co.,  23  N. 
H.  269;  Metier  v.  Easton  &c.  R. 
Co.,  37  N.  J.  L.  222;  Kerr  v.  New 
York  El.  R.  Co.,  96  N.  Y.  S.  1021; 
Cincinnati  v.  Whetstone,  47  Ohio 
St.  196,  24  N.  E.  409;  Delaware  &c. 
R.  Co.  V.  Burson,  61  Pa.  St.  369; 
Wayne  v.  Penna.  R.  Co.,  231  Pa. 
512,  80  Atl.  1097;  Sprague  v.  Sea 
View  R.  Co.  (R.  I.),  72  Atl.  818; 
Panhandle  &c.  R.  Co.  v.  Kirby 
(Tex.  Civ.  App.),  108  S.  W.  498; 
West  V.  Milwaukee  &c.  R.  Co.,  56 
Wis.  318,  14  N.  W.  292.  That  in- 
terest can  not  be  allowed  in  the 
absence  of  testimony  as  to  when 
the  railroad  took  possession,  see 
Guinn  v.  Iowa  &c.  R.  Co.,  131 
Iowa  680,  109  N.  W.  209.  Com- 
pare also  Stephens  v.  Cambria  &c. 
R.  Co.,  242  Pa.  St.  606,  89  Atl.  672 
(interest  not  an  element  of  com- 
pensation). 

67  Old  Colony  R.  Co.  v.  Miller, 
125  Mass.  1,  28  Am.  Rep.  194.  But 
compare  Raleigh  &c.  R.  Co.  v. 
^lecklenburg  :\Ifg.  Co.,  166  N.  Car. 
168,  82  S.  E.  5. 


889 


COMPENSATION    AND    DAMAGES 


§  1288 


that  a  petition  for  damages.  seasonal)ly  filed,  is  not  brcnight  to  a 
hearing  until  several  years  thereafter  does  not  defeat  this  right."** 
And  where  tlie  taking  is  not  complete  until  the  damages  are  paid, 
if  the  railroad  company  secures  possession  of  the  land  pending 
an  appeal,  bv  paying  into  court  the  amount  of  the  original  assess- 
ment, it  w  ill  1)C'  liable  for  interest  from  that  date  on  the  amount 
of  damages  as  finally  determined,  in  case  the  assessment  is  in- 
creased.*'^ Where  the  jury  were  instructed  that  interest  from 
the  time  the  i)roperty  was  taken  constituted  a  part  of  the  ])lain- 
tifif's  damages,  it  will  be  presumed  that  the  interest  to  the  date 
of  the  verdict  is  included  therein,  and  judgment  should  be  ren- 
dered simply  for  the  amount  of  the  verdict.'"  but,  it  is  proper  to 
have  assessment  on  appeal  made  as  of  the  date  of  the  original 


68  Hartshorn  v.  Hurlington  &c. 
R.  Co.,  52  Iowa  613.  3  N.  W.  648; 
Drury  v  .Midland  R.  Co.,  127  Mass. 
571.  The  fact  that  the  owner  was 
left  in  possession  for  some  time 
after  the  rip;ht  of  possession  ac- 
crued to  the  railroad  company  does 
not  affect  his  right  to  interest.  Old 
Colony  R.  Co.  v.  Miller.  125  Mass. 
1,  28  Am.  Rep.  194:  Philadelphia 
V.  Dyer,  41  Pa.  St.  463;  Warren  v. 
First  Div.  of  "St.  Paul  &c.  R.  Co.. 
21  Minn.  424.  But  in  some  cases 
this  has  been  deducted  from  the 
interest.  See  ^linneapolis  v.  Wil- 
kin, 30  Minn.  145.  15  N.  W.  668: 
South  Park  Comrs.  v.  Dunlev}%  91 
111.  49;  Fink  v.  Newark.  40  N.  J. 
L.  11:  New  York  &c.  Bridge.  Mat- 
ter of.  137  N.  Y.  95.  32  N.  E.  1054; 
Seefield  v.  Chicago  &c.  R.  Co.,  67 
Wis.  96.  29  N.  W.  904.  Delay  of 
the  owner  in  instituting  proceed- 
ings to  have  compensation  assessed 
has  been  held  not  to  relieve  the 
company  from  paying  interest  from 
the  time  of  taking  possession.  Del- 
aware &c.  R.  "Co.  V.  Burson.  61  Pa. 
St.  369. 


cf  Warren  v.  St.  Paul  &c.  R.  Co., 
21  Minn.  424:  Atlantic  &c.  R.  Co. 
V.  Koblentz.  21  Ohio  St.  334;  Rhys 
V.  Dare  Valley  R.  Co.,  L.  R.  19  Eq. 
93.  See  also  Reed  v.  Chicago  &c. 
R.  Co..  25  Fed.  886;  Selma  &c.  R. 
Co.  V.  Gammage,  63  Ga.  604;  Whit- 
man V.  Boston  &c.  R.  Co..  7  Allen 
(Alass.)  313;  and  compare  Shat- 
tuck  V.  Wilton  R.  Co..  23  N.  H. 
269;  St.  Louis  &c.  R.  Co.  v.  Fow- 
ler. 113  ^lo.  458,  20  S.  W.  1069 
(interest  held  payable  onh'  on  the 
amount  of  increase).  On  the  other 
hand  where  the  company  appeals 
and  the  award  is  decreased  it  has 
been  held  that  the  company  is  en- 
titled to  interest  on  the  decrease 
where  it  had  paid  the  whole  amount 
of  the  original  award  into  court. 
Watson  V.  Milwaukee  &c.  R.  Co.. 
57  Wis.  332.  15  N.  W.  468.  Reisner 
V.  .Atchison  &c.  Co.,  27  Kans.  382; 
Scott  V.  St.  Paul  &c.  R.  Co.,  21 
^linn.  322. 

^0  Diedricli  v.  Northwestern  Un- 
ion R.  Co..  47  Wis.  662,  3  N.  W. 
749. 


.^  1284 


i;  AlI.liOADS 


890 


.'iward,  and   the  court   should,  in   such  case,  add   interest  to  the 
amount  of  the  verdict  in  rendering-  judgment.'^ 

§  1284  (1007).  Presumption  of  payment  of  compensation — 
Statute  of  limitations. — Tpon  much  the  same  ])rinci])]e  as  that 
on  which  the  doctrine  of  estoppel  rests,  it  is  held  that  if  a  claim 
for  compensation  is  not  presented  within  the  time  designated  by 
the  statute  of  limitations,  presumption  is  that  the  damages  were 
paid."  The  decisions  affirm  that  the  legislature  may  prescribe 
the  time  within  which  claims  shall  be  presented."  A  statute 
hmiting  the  time  within  which  proceedings  may  be  prosecuted 


"1  Warren  v.  First  Div.  of  St. 
Paul  &c.  R.  Co.,  21  Minn.  424; 
Whitacre  v.  St.  Paul  &c.  R.  Co., 
24  Minn.  311.  In  St.  Louis  &c.  Ry. 
Co.  V.  Oliver,  17  Okia.  589.  87  Pac. 
423,  the  text  is  cited  with  approval 
and  it  is  held  tliat  where  tlic  land- 
owner appeals  from  the  award,  and 
the  case  is  tried  to  a  jury  in  the 
district  court,  it  is  proper  for  the 
court  not  to  permit  the  jury  to  be 
informed  of  the  amount  of  the 
award  made  by  the  commissioners, 
and  as  the  allowance  of  interest  is 
dependent  upon  the  question  as  to 
whether  the  amount  of  damages 
awarded  by  the  jury  is  greater  or 
less  than  the  award  of  the  com- 
missioners, the  court  may,  where 
there  is  no  question  as  to  the  date 
from  which  interest  should  be  al- 
lowed, reserve  the  question  of  in- 
terest for  determination  by  the 
court  and  direct  the  jury  not  to  in- 
clude interest  in  their  verdict.  See 
also  Reed  v.  Chicago  &c.  R.  Co., 
25  Fed.  886.  In  Kansas  interest  is 
allowed  between  time  of  appropria- 
tion and  rendition  of  judgment. 
Calkins  v.  Salina  &c.  R.  Co.,  102 
Kans.  835,  172  Pac.  20. 


'2  Brookville  &c.  Co.  v.  Butler, 
91  Ind.  134,  46  Am.  Rep.  580;  Nel- 
son V.  h'leming.  56  Ind.  310;  Mark 
V.  State,  97  N.  Y.  572;  Terry  v. 
New  York  &c.  R.  Co.,  22  Barb. 
(N.  Y.)  574.  See  also  Carter  v. 
Ridge  Turnpike  Co.,  208  Pa.  St. 
565,  57  Atl.  988:  De  Geofrey  v. 
Merchants'   &c.    Co.,    179    Mo.   698, 

79  S.  W.  386,  64  L.  R.  A.  959,  101 
Am.  St.  524;  Tietz  v.  International 
&c.  R;  Co.,  35  Tex.  Civ.  App.  136, 

80  S.  W.  124.  But  see  Wheeling 
&c.  R.  Co.  V.  Warrell,  122  Pa.  St. 
613,  16  Atl.  20;  Chicago  &c.  R.  Co. 
V.  Gait,  133  111.  657,  23  N.  E.  425, 
44  Am.  &  Eng.  R.  Cas.  43;  Mc- 
Cormick  V.  Evans,  33  111.  327;  El- 
liott's Roads  and  Streets  (3rd  ed.), 
§  304,  authorities  cited. 

73  Stewart  v.  State,  105  N.  Y. 
254.  11  N.  E.  652;  Benedict  v.  State, 
120  N.  Y.  228,  24  N.  E.  314;  Rex- 
ford  V.  Xnight,  11  N.  Y.  308;  Mark 
V.  State,  97  N.  Y.  572.  See  also 
Sweet  V.  Boston,  186  Mass.  79,  71 
N.  E.  113.  In  jurisdictions 'where 
special  and  local  laws  are  forbid- 
den it  may  be  doubted  whether  a 
statute  applicably  solely  to  a  spe- 
cial class  of  cases  would  be  valid. 


891 


COMPENSATION'     AND    DAMAGES 


§1284 


for  the  recovery  of  compensation,  must  give  a  reasonable  time 
to  the  land-owner  in  which  to  institute  his  proceedings,  otherwise 
there  would  be  an  impairment  of  his  constitutional  rights/'*  The 
legislature  is  the  judge  of  what  is  a  reasonable  time,  and  courts 
can  not  review  the  legislative  judgment  unless  the  time  pre- 
scribed is  so  clearly  insufficient  as  to  be  a  practical  denial  of  the 
right  to  enforce  proceedings  for  the  recovery  of  compensation."' 
The  right  of  an  owner  whose  property  is  seized  in  proceedings 
i!i  in\  itum  to  compensation  is  regarded  with  favor,  and  a  statute 
limiting  the  time  for  prosecuting  a  claim  will  not  be  applied  un- 
less it  clearly  covers  the  case.  Thus  a  statute  limiting  the  time 
for  commencing  actions  for  trespass  will  not  be  applied  to  pro- 
ceedings under  a  statute  providing  for  appropriation  proceed- 
ings.^** The  statute  of  limitations  begins  to  run  at  the  time  the 
right  of  action  accrues,  but  it  is  not  possible  to  lay  down  any 
definite  rule  for  determining  when  the  cause  of  action  is  complete 
insomuch  as  the  question  depends  very  largely  upon  the  statute 


74  See  Philadelphia  v.  Wright. 
100  Pa.  St.  235. 

"5  See  Lincoln  v.  Colusa  County. 
28  Gal.  662;  Pereles  v.  Watertown, 
8  Biss.  (U.  S.)  79;  Terry  v.  An- 
derson, 95  U.  S.  628,  24  L.  ed.  365; 
Koshkonong  v.  Burton,  104  U.  S. 
668,  26  L.  ed.  886;  Potter  v.  Ames, 
43  Gal.  75;  Auld  v.  Butcher,  2  Kans. 
135;  Berry  v.  Ransdall,  4  Mete. 
(Ky.)  292;  Revere  v.  Boston,  14 
Gray  (Mass.)  218;  State  &c.  v. 
:\ressenger.  27  Minn.  119.  6  N.  W. 
457;  Welsh  v.  Chicago  &c.  R.  Go., 
19  Mo.  App.  127;  Carolina  &c.  R. 
Co.  V.  McCaskill,  94  N.  Gar.  746; 
Trustees  of  Cincinnati  R.  Go.  v. 
Haas,  42  Ohio  St.  239;  King  v. 
Belcher,  30  S.  Gar.  381,  9  S.  E.  359; 
Callison  v.  Hedrick,  15  Grat.  (Va.) 
244. 

76  Shortle  v.  Louisville  &c.  Co., 
130  Tnd.  505,  30  N.  E.  639,  distin- 


guisliing  Midland  &c.  R.  Go.  v. 
Smith,  125  Ind.  509,  25  N.  E.  153; 
Strickler  v.  Midland  &c.  R.  Co., 
125  Ind.  412,  25  N.  E.  455.  and  de- 
nying the  doctrine  of  Foster  v. 
Cumberland  &c.  R.  Co.,  23  Pa.  St. 
371;  Union  Canal  Co.  v.  Woodside. 
11  Pa.  St.  176.  In  the  first  case 
cited  it  was  said  that  the  doctrine 
of  the  Pennsylvania  cases  cited  w^as 
modified  in  Delaware  &c.  R.  Go.  v. 
Burson.  61  Pa.  St.  369.  See  Law- 
rence R.  Go.  v.  Cobb,  35  Ohio  St. 
94;  Cohen  v.  Cleveland.  43  Ohio  St. 
190:  Houston  &c.  R.  Co.  v.  Ghaffm, 
60  Tex.  553:  Donnelly  v.  Brooklyn. 
121  N.  Y.  9,  24  N.  E.  17.  Adverse 
possession  may  be  relied  on.  Sher- 
lock v.  Louisville  &c.  R.  Co.,  115 
Ind.  22.  17  N.  E.  171;  Railroad  Co. 
V.  O'Harra.  48  Ohio  St.  343,  28  N. 
E.  175. 


5<  1285 


RAILROADS 


892 


ooveniiiij?  the  particular  case."  It  may  be  safely  said  that  where 
the  case  is  not  controlled  by  particular  statutory  provisions,  the 
statute  of  limitations  begins  to  run  from  the  time  the  owner's 
dominion  over  the  property  ceases.'® 

§  1285  (1008).  Waiver — Estoppel. — A  land-owner  may  waive 
his  rii^ht  to  compensation,  and  by  conduct  may  estop  himself 
from  successfully  claiming-  compensation  or  damages.  It  has 
been  held  that  where  an  abutting  owner  invites  a  railroad  com- 
l)any  to  construct  its  track  in  a  street  he  is  estopped  to  claim 
damages.'^  There  is  reason  for  affirming  that  the  doctrine  of 
some  of  the  cases  referred  to  in  the  note  is  to  be  carefully  a])- 
plied  for,  it  would,  as  we  believe,  lead  to  injustice  to  hold  that 
an  owner  of  private  property  is  estopped  by  the  mere  fact  that 
he  favors  the  locaticm  of  a  railroad  on  his  land,  since  it  may  be 
justly  presumed  that  he  does  not  mean  by  his  conduct  to  deprive 
himself  of  the  right  to  the  compensation  to  which  the  law  entitles 
him.'"'     There  can.  however,  be  no   doubt   that   the   doctrine   of 


77  Davis  V.  New  Bedford,  133 
Mass.  49;  Brovver  v.  Philadelphia. 
142  Pa.  St.  350,  21  All.  828:  Volk- 
mar  St..  In  re,  124  Pa.  St.  320,  16 
Atl.  867;  Baltimore  &c.  R.  Co.  v. 
Fifth  Baptist  Church.  108  U.  S. 
317.  2  Sup.  Ct.  719.  27  T..  ed.  739. 

78  See  generally  Aloorc  v.  Bos- 
ton, 8  Cush.  (Mass.)  274;  Rider  v. 
Stryker,  63  N.  Y.  136;  Hazen  v. 
Boston  &c.  R.  Co..  2  Gray  (Mass.) 
574;  Davidson  v.  Boston  &c.  R. 
Co.,  3  Cush.  (Mass.)  91;  Barker  v. 
Taunton,  119  Mass.  392.  See  also 
generally  as  to  limitation  of  action 
to  recover  compensation,  post  § 
1353. 

7i'  Illinois  &c.  R.  Co.  V.  Allen,  39 
111.  205;  Toledo  &c.  Co.  v.  Hunter. 
50  111.  325;  Penn  IMutual  Ins.  Co. 
v.  Heiss,  141  Til.  35.  33  Am.  St.  273; 
Rurkham  v.  Ohio  &c.  R.  Co..  122 
Ind.    344,   23    N.    E.   799;    Wolfe   v. 


Covington  &c.  R.  Co..  15  B.  Mon. 
(Ky.)  404;  Scarritt  v.  Kansas  City 
&c.  R.  Co.,  127  Mo.  298,  29  S.  W. 
1024;  Miller  v.  Auburn  &c.  R.  Co., 
6  Hill  (N.  Y.)  61;  Murdock  v.  Pros- 
pect &c.  R.  Co.,  10  Hun  (N.  Y.) 
598;  Shaw  v.  Manhattan  Ave.  R. 
Co..  35  Misc.  47,  71  N.  Y.  S.  22. 
Agreement  that  no  damages  shall 
be  paid  or  acceptance  of  a  certain 
amount  in  payment  estops  from 
further  claim.  Stoops  v,  Kittan- 
ning  Tel.  Co.,  242  Pa.  St.  556,  89 
Atl.  686.  Compare  also  Eastern 
Oreg.  Land  Co.  v.  Des  Clinten 
R.  Co.,  213  Fed.  897.  Mere  con- 
sent to  enter  has  been  held  to 
waive  only  prepayment.  Squiers 
V.  Neenah.  24  Wis.  588;  Smith  v. 
Ferris.  6  Hun    (N.  Y.)   553. 

80  Humphreys  v.  Ft.  Smith  &c. 
Power  Co.,  71  Ark.  152.  71  S.  W. 
662;  Pennsylvania  R.  Co.  v.  Bond, 


85)3 


COMPENSATION'    AND    DAMAGES 


§1285 


waiver  and  estoppel  does  apply  to  cases  of  the  appropriation 
of  property  under  the  right  of  eminent  domain.  Kven  constitu- 
tional rights  may  be  waived,  and  a  party  may,  by  his  conduct,  be 
estopped  from  asserting  them.''^  If  there  is  an  effective  estoppel 
against  the  owner  at  or  prior  to  the  time  the  rights  of  the  railway 
company  are  acquired  it  will  bind  all  who  thereafter  acquire  an 
interest  or  estate  in  the  land.^^-  Some  of  the  courts  hold  that 
conduct  may  estop  an  owner  from  successfully  claiming  that 
there  was  a  trespass,  and  yet  not  estop  him  from  claiming  com- 
pensation for  the  property  taken/^'     The  principle  which  author- 


202  111.  95.  66  X.  E.  941;  Evansvilie 
&c.  R.  Co.  V.  Charlton,  6  Ind.  App. 
56.  33  N.  E.  129;  Consumers'  &c. 
Co.  V.  Huntsinger,  12  Ind.  App. 
285,  39  N.  E.  423,  on  rehearing,  42 
N.  E.  640:  Craig  v.  Lewis,  110  Mass. 
377;  Woodward  V.  Webb,  65  Pa.  St. 
254;  Oilman  v.  Sheboygan  &c.  R. 
Co..  40  Wis.  653;  post  n,  86.  Mere 
silent  acquiescence  is  held  not  to 
1)0  a  waiver  in  Kime  v.  Cass  Coun- 
ty. 71  Xebr.  677,  99  X.  W\  546. 
101  N,  W.  2.  But  while  mere 
silence  may  not  operate  as  an 
estoppel  affirmative  acts  may  so 
operate.  Authorities  preceding 
note.  See  Piatt  v.  Pennsylvania 
Co..  43  Ohio  St.  228;  Niagara  &c. 
R.  Co.,  In  re,  121  N.  Y.  319,  24  N. 
E.  452;  Moore  v.  Sanford,  151 
Mass.  285,  24  N.  E.  323.  7  L.  R.  A. 
151  and  note.  [Mistake  of  fact  or 
fraud  may  prevent  a  waiver  being 
held  to  exist.  See  also  Burns  v. 
Chicago  &c.  R.  Co.,  102  Iowa  7. 
70  N.  W.  728;  Martin  v.  St.  Louis, 
139  ^lo.  246,  41  S.  W^  231. 

81  Great  Falls  Mfg.  Co.  v.  At- 
torney-General. 124  U.  S.  581,  8 
Sup.  Ct.  631.  31  L.  ed.  527;  Pryz- 
bylowyicz  v.  Missouri  &c.  Rail- 
road,    17     Fed.     492;     Vickery     v. 


P.oard,  134  Ind.  554,  32  N.  E.  880; 
Tharp  v.  Witham,  65  Iowa  566,  22 
N.  W.  677;  Pitkin  v.  Springfield, 
112  Mass.  509;  Embury  v.  Conner, 
3  N.  Y.  511,  53  Am.  Dec.  325;  Det- 
mold  V.  Drake,  46  N.  Y.  318; 
Brooklyn  v.  Copeland,  106  X.  Y. 
496,  13  N.  E.  451.  See  generally 
Daniels  v.  Tearney,  102  U.  S.  415. 
26  L.  ed.  187;  Ferryman  v.  Green- 
ville, 51  Ala.  507;  Burlington  &c. 
R.  Co.  V.  Stewart,  39  Iowa  267; 
Ferguson  v.  Landram,  1  Bush.  548. 
5  Bush.  (Ky.)  230,  96  Am.  Dec. 
350;  People  v.  Murray,  5  Hill  (N. 
Y.)  468;  Lee  v.  Tillotson,  24  Wend. 
(N.  Y.)  337,  35  Am.  Dec.  624;  Van 
Hook  V.  Whitlock,  26  Wend.  (N. 
Y.)  43,  37  Am.  Dec.  246;  State  v. 
Mitchell,  31  Ohio  St.  592;  Goodale 
V.  Sowell,  62  S.  Car.  516,  40  S.  E. 
970;  Elliott  Roads  and  Streets 
(3rd  ed.).  §  735. 
82  Moore  v.  Roberts,  64  Wis.  538. 

25  N.  W.  564;  Gurnsey  v.  Edwards. 

26  N.  H.  224.  See  Battles  v.  Brain- 
tree.  14  Vt.  348;  Merchants'  &c. 
Co.  V.  Chicago  &c.,  79  Towa  613, 
44  X.  W.  900. 

S3  Pennsylvania  R.  Co.  v.  Piatt. 
47  Ohio  St.  366,  25  X.  E.  1028; 
Erie  R.  Co.  v.  Delaware  &c.  R.  Co., 


5;'  1285  RAILROADS  894 

izes  this  dislinclion  is  the  same  as  thai  which  alh)\vs  a  claim  ior 
(Kimag-es  to  l)e  proseciited  in  many  instances,  but  denies  a  rii;ht 
to  maintain  ejectment  or  injunction.'^'*  It  has  also  been  held  that 
a  land-owner  who  accepts  and  retains  the  damages  assessed  in 
condemnation  proceedings  thereby  estops  himself  from  claiming 
greater  damages,  either  in  a  direct  appeal  or  in  a  collateral 
action.'"^''  Hut  it  is  held  that  an  appropriation  of  land  by  a  rail- 
road c()m])any  for  its  own  use,  without  consent  of  the  owner  and 
without  an  assessment  of  damages,  makes  the  company  liable 
for  damages  even  though  the  owner  acquiesced  in  the  taking.^*^ 

21    X.  J.   Eq.  283.     See   Bloomfield  See  also  Jacobs  v.  Kansas  City  &c. 

&c.  R.  Co.  V.  Grace,  112   Ind.  128,  Ry.   Co.,   134   La.  389,  64   So.   ISO; 

13  X.  E.  680;  Missouri  &c.  R.  Co.  Second    St.    Imp.    Co.    v.    Kansas 

V.   Calkins   (Tex.  Civ.  App.),  79  S.  City  &c.  Ry.  Co.,  255  Mo.  519.  164 

W.   852.  S.    W.    515;    Ennis-Brown    Co.    v. 

s*  Roberts  v.  Xorthern  Pacific  R.  Central   Pac.  Ry.  Co.,  228  Fed.  46, 

Co..   158  U.   S.   1,   15   Sup.   Ct.  756,  51   (citing  text). 

39  L.  cd.  873;  Cairo  &c.  R.  Co.  v.  s"' Stauffer  v.  Cincinnati  &c.  R. 
Turner.  31  Ark.  494,  25  Am.  Rep.  Co.,  30  Ind.  App.  356,  70  N.  E.  543. 
564;  Chicago  &c.  Co.  v.  Goodwin,  See  also  Allen  v.  Colorado  Cent. 
Ill  111.  273,  53  Am.  Rep.  622;  Indi-  R.  Co.,  22  Colo.  238,  43  Pac.  1015; 
ana  &c.  Co.  v.  Allen,  113  Ind.  581,  Clay  County  v.  Howard,  95  Nebr. 
15  X.  E.  446;  Lexington  &c.  R.  Co.  389,  145  N.  W.  982;  Ft.  Worth  Ice 
V.  Ormsby,  7  Dana  (Ky.)  276;  Co.  v.  Chicago  &c.  R.  Co..  11  Tex. 
Harlow  v.  ^larquette  &c.  R.  Co..  Civ.  App.  600.  33  S.  W.  159. 
41  Mich.  336,  2  X.  W.  48;  Harring-  ^g  Cleveland  &c.  R.  Co.  v.  Simp- 
ton  V.  St.  Paul  &c.  R.  Co..  17  Minn.  son,  182  Ind.  693.  104  X.  E.  301,  108 
215;  Smart  v.  Portsmouth  &c.  R.  X.  E.  9.  ante  n.  §  80.  See  also 
Co.,  20  X.  H.  233;  Pettibone  v.  La  Chicago  &c.  R.  Co.  v.  Hoffman 
Crosse    &c.    R.    Co.,    14   Wis.    443.  (Ind.   App.).   119   X.   E.   169. 


CHAPTER  XL. 


PROCEDURE  IN  AI'PROI'RI A'i-IOX   CASES 


Sec. 

1290.  Procedure — Introductory. 

1291.  Nature   of   the   proceeding. 

1292.  Civil     action  —  Removal     to 

federal   court. 

1293.  Tribunals — Generally. 

1294.  Nature    of    the    tribunal    for 

the  assessment  of  benefits 
and    damages. 

1295.  Creation     of    the     tribunal^ 

Legislative  power. 

1296.  Right  of  land-owner  to  have 

question    of    right    to    take 
determined. 

1297.  Determination     of     right     of 

interurban    road    to    cross 
railroad  tracks. 

1298.  Tribunal— Jurisdiction  —  De- 

cision   of   majority. 

1299.  Appointment    of     appraisers 

or    commissioners    to    as- 
sess benefits  and  damages. 

1300.  Duty    to    appoint    appraisers 

or  commissioners — Manda- 
mus. 

1301.  Qualifications      of      jurors — 

Appraisers  or  commission- 
ers. 

1302.  Waiver  of  objections  to  lack 

of  qualification. 

1303.  Oath  must  be  taken  by  jur- 

ors or   commissioners. 

1304.  Notice — General    doctrine. 

1305.  Notice — Requisites    of. 

1306.  Notice — Political       ciuestinns 

— Expediency. 

1307.  Notice — Description. 

1308.  Service   of  notice. 


Sec. 

1309.  Summoning  the  jur}-  or  com- 

missioners. 

1310.  Parties. 

1311.  Parties  —  Grantor  or  gran- 

tee  —    Interested      parties 
generally. 

1312.  Parties — Joinder  —  Efifect    of 

failure  to  join. 

1313.  Parties — Amendments. 

1314.  Effort  to  agree. 

1315.  Petition     or    articles    of    ap- 

propriation. 

1316.  Limited    and    unlimited    peti- 

tions. 

1317.  Contents    of   the    petition. 

1318.  Contents      of     petition — De- 

scription of  property. 

1319.  Petition — Defects    and    man- 

ner of  testing. 

1320.  Title. 

1321.  Defenses — Questions    of   law 

or  fact. 

1322.  Further  of  defenses. 

1323.  Efifect    of   pendency    of   pro- 

ceedings to  condemn. 

1324.  Dismissal    of    proceedings — 

Effect  of. 

1325.  Dismissal — Other    cases. 

1326.  Abandonment      of      proceed- 

ings. 

1327.  Meetings    of    commissioners 

or  jurors. 

1328.  Open  and  close. 

1329.  Evidence  generally. 

1330.  Evidence    of   value — Illustra- 

tive instances. 

1331.  Evidence    of    value — Further 

Illustrative  instances. 


895 


J;  1290  RAILROADS  896 

Sec.  Sec. 

1332.  Ta.\  lists  and  assessments  as       1340.    Time     within     wliicli     lepurl 

evidence  of  value.  must  be   made. 

1333.  Competency  of  witnesses.  1341.    Objections  to  report. 

1334.  Opinions  of  witnesses.  1342.    Confirmation  or  rejection  of 

1335.  Power   of  commissioners    to  report — Modification. 

act  upon  their  own  knowl-  1343.  Misconduct      of     jurors      or 

edge — Evidence.  commissioners. 

1336.  View.  1344.  Judgment. 

1337.  Instructions.  1345.  Waiver  of  objections. 

1338.  Report    of    commissioners.  1346.  Company  a  trespasser  where 

1339.  Report    of    commissioners —  proceedings  are  void. 

Requisites    of — Illustrative 
cases. 

§  1290  (1009).  Procedure — Introductory. — The  procedure  in 
cases  of  seizure  of  private  property  under  the  right  of  eminent 
domain  is  so  lart^ely  controlled  and  reg'ulated  by  statutes  that 
we  can  not  go  far  into  details.  There  are.  however,  general 
principles  of  a  fundamental  nature  which  apply  to  such  pro- 
ceedings almost  universally,  and  of  those  ])rinciples  we  shall 
treat  at  some  length.  In  many  respects  the  statutes  of  the 
different  states  proceed  upon  much  the  same  general  lines,  but 
there  is.  nevertheless,  a  wide  diversity  in  luatters  of  detail.  All 
that  can  lie  j^roperly  and  successfully  done  in  a  general  treatise 
is  to  state  and  illustrate  general  principles,  for  it  would  be  im- 
possil)k',  in  a  work  of  such  a  character,  to  treat  matters  depend- 
ent upon  legislative  enactments,  and  this  we  shall  not  undertake 
to  do,  except  incidentally  and  for  the  purpose  of  showing  the 
practical  application  of  general  principles. 

§  1291  (1010).  Nature  of  the  proceeding. — In  order  that  there 
ma}'  be  due  ])rocess  of  law,  it  is  essential  that  the  std)ject  of 
compensation  be  regidated  by  a  legislative  enactment.^  but  it  is 

1  See     Anniston     &c.     R.     Co.    v.  western    R.    Co.    v.    Soutlu-rn    &c. 

Jacksonville    &c.    R.    Co.,    82    Ala.  Tel.    Co.,   46   Ga.    43,   12  Am.   Rep. 

297,  2  So.  710;   Adirondack  R.  Co.  585;  Garbutt  Lumber  Co.  v.  Geor- 

V.  New  York,  176  U.  S.  335,  20  Sup.  gia    R.    &c.    Co..    Ill    Ga.    714,    36 

Ct.    460,    44    L.    ed.    492,    affirming  S.     E.     942;     Henderson     &c.     R. 

160  N.  Y.  225;  Martin,  Ex  parte,  13  Co.     v.     Dickerson,     17     b.     Mon. 

Ark.  198,  58  Am.  Dec.  321;  South-  (Ky.)  173,  66  Am.  Dec.  148;  Calder 


897 


PROCEDURE   IN    AIM'ROI'HIATION   CASES 


§  1291 


not  necessary  that  all  the  details  of  procedure  be  prescribed  in 
the  statute,  since  the  statute,  when  enacted,  takes  its  place  as 
l)art  of  a  uniform  system  of  law,  and  may  be  aided  and  inter- 
preted by  other  statutes  and  the  general  principles  of  juris- 
prudence.- The  proceedin,^-  must  be,  in  its  nature  judicial,  but 
it  is  not  a  proceeding  in  ordinary  course  of  the  common  law  en- 
titling the  parties  to  a  jury  trial.^  As  to  whether  it  is  a  "civil 
action"  or  "special  proceeding."  within  the  meaning  of  that 
term,  as  used  in  the  codes  of  the  different  states,  is  a  question 
upon  which  there  is  some  diversity  of  opinion,  but  the  weight  of 
authority  is  that  it  is.  in  many  respects,  a  special  proceeding  and 


V.  Police  Jury,  44  La.  Ann.  173, 
10  So.  12(i\  American  Tel,  &c.  Co. 
V.  Smith,  71  Md.  535,  18  Atl.  910, 
7  L.  R.  A.  200;  Connecticut  River 
R.  Co.  V.  Franklin  Co.  Comrs.,  127 
Mass.  50,  34  Am.  Rep.  338;  People 
V.  Detroit  &c.  R.  Co.,  79  Mich.  471, 
44  N.  W.  934.  7  L.  R.  A.  717;  State 
V.  Chicago  &c.  R.  Co..  Zd  Minn. 
402,  31  N.  W.  365;  Mt.  Washington 
R.  Co.,  In  re,  35  N.  H.  134;  South- 
ern Kans.  R.  Co.  v.  Oklahoma  City, 

12  Okla.  82,  69  Pac.  1050;  East  End 
St.  R.  Co.  V.  Doyle,  88  Tenn.  747, 

13  S.  W.  936,  9  L.  R.  A.  100,  17 
Am.  St.  933.  In  Secombe  v.  Rail- 
road Co.,  23  Wall.  (U.  S.)  108,  23 
L.  ed.  67,  the  court,  in  speaking  of 
the  legislative  power  to  prescribe 
the  course  of  proceeding,  said: 
"There  is  no  limitation  upon  the 
power  of  the  legislature  in  this  re- 
spect, if  the  purpose  be  a  public  one 
and  just  compensation  be  paid  or 
tendered  to  the  owner  for  the 
property  taken."  It  seems  to  us 
that  the  rule  is  not  quite  accurately 
stated  in  the  case  cited,  for.  as  we 
believe,  provision  must  be  made 
by  law  for  notice  and  compensa- 
tion.     See    upon    the    general    sub- 


ject, Secomb  v.  Alilwaukee  &c.  R. 
Co.,  49  How.  Pr.  (N.  Y.)  75;  Weir 
v.  St.  Paul  &c.  R.  Co.,  18  Minn. 
155;  Langford  v.  Ramsey  Co.  Com- 
missioners, 16  Minn.  375;  Musick 
v.  Kansas  City  &c.  R.  Co.,  114  Mo. 
309,  21  S.  W,  491;  post,  §  1304. 

2  And  for  this  reason  it  has  been 
held  that  the  want  of  a  special 
provision  for  compensation  or  the 
mode  of  ascertaining  it  is  not  fatal 
in  a  special  statute  where  it  is  sup- 
plied by  a  provision  of  a  general 
statute  or  law.  New  York  El.  R. 
Co.,  In  re,  70  N.  Y.  327;  Jennings 
V.  Le  Roy,  63  Cal.  397;  Ponlan  v. 
Atlantic  &c.  R.  Co.,  123  Ga.  605, 
51  S.  E.  657;  Gregg  v.  Baltimore, 
56  Md.  256;  Rees'  Appeal  (Pa.  St.), 
12  Atl.  427;  East  Union  Twp.  v. 
Comrey.  100  Pa.  St.  362;  State  v. 
Hogue.  71  Wis.  384.  36  N.  W.  860. 

3  Ante.  §  1245.  Expressions  in 
some  of  the  cases  seem  to  affirm 
that  the  jury  or  commissioners  are 
not  invested  with  judicial  func- 
tions. Grand  Rapids  &c.  Co.  v. 
Chesebro,  74  Mich.  466,  42  N.  W. 
66,  39  Am.  &  Eng.  R.  Cas.  159; 
Toledo  &c.  R.  Co.  v.  Dunlap.  47 
Mich.  456.  11  N.  W.  271,  5  Am.  & 


§  riin 


RAILROADS 


898 


not  a  civil  action.*  Yet  in  so  far  as  concerns  the  right  of  appeal 
from  a  trial  court  to  an  appellate  tribunal  we  think  the  proceed- 
ing must  be  regarded  as  a  civil  action. '     The  settled  rule  is  that 


Eng.  R.  Cas.  378.  Possibly  this 
may  be  true  where  the  tribunal  is 
a  temporary  one,  and  final  action 
is  to  be  taken  by  a  court,  but,  how- 
ever this  may  be,  we  think  it  clear 
that  there  must  be  at  some  stage 
of  the  proceeding  action  by  a  judi- 
cial tribunal.  State  v.  Neville,  110 
Mo.  345,  19  S.  W.  491.  See  also 
Tracy  v.  Elizabethtown  &c.  R.  Co., 
78  Ky.  309;  Union  Pac.  R.  Co.  v. 
Leavenworth  &c.  R.  Co.,  29  Fed. 
728.  A  trial  of  proceedings  by  a 
railroad  company  to  condemn  land 
is  governed  by  the  ordinary  rules 
of  law  governing  the  trial  of  causes, 
though  the  tribunal  having  the 
jurisdiction  of  such  proceedings  is 
special.  Davidson  v.  Texas  &c.  R. 
Co.,  29  Tex.  Civ.  App.  54,  67  S.  W. 
1093. 

4  Colorado  Fuel  &c.  Co.  v.  Four 
Mile  R.  Co.,  29  Colo.  90,  66  Pac. 
902;  Hartley  v.  Keokuk  &c.  R.  Co., 
85  Iowa  455,  52  N.  W.  352;  Cory  v. 
Chicago  &c.  R.  Co.,  100  Mo.  282, 
13  S.  W.  346;  New  York  &c.  R.  Co., 
Tn  re,  63  How.  Pr.  (N.  Y.)  123; 
Erie  R.  Co.  v.  Steward,  59  App. 
Div.  187,  69  N.  Y.  S.  57;  Cours  v. 
Vermont  &c.  R.  Co.,  25  Vt.  476; 
Gill  V.  Milwaukee  &c.  R.  Co.,  76 
Wis.  293,  45  N.  W.  23.  See  also 
South  Carolina  &c.  Ry.  v.  Ellen, 
95  S.  Car.  68,  78  S.  E.  963,  Ann. 
Cas.   1915B.   1042,   1043. 

•''  Elliott's  Appellate  Procedure, 
§  253,  note  1.  Albany  &c.  R.  Co. 
v.  Lansing.  16  Barb.  (N.  Y.)  68: 
Pack  v.  Chesapeake  &c.  R.  Co.,  5 
W.  Va.  118;  Howard  v.  Proprietors 


of    Locks    and     Canals,     12    Cush. 
(Mass.)  259;  Colorado  Midland  R. 
Co.  V.  Jones,  29  Fed.  193.    See  also 
King's  Lake  Drainage  &c.  Dist.  v. 
Jameson,    176    Mo.    557,   75    S.   W. 
679;    Littleton   Bridge    Co.  v.   Pike, 
72   Vt.   7,   47   Atl.   108.     Where  an 
appeal  or  writ  of  error  was  allowed 
in  civil  cases,  the  statute  has  been 
held  to  apply  to  condemnation  pro- 
ceedings.    Atlantic    &c.    R.    Co.    v. 
Sullivant,  5   Ohio  St.  276;   Scott  v. 
Lasell,  71  Iowa  180,  32  N.  W.  322. 
The  proceedings  are   governed   by 
rules     of     practice     prevailing     in 
courts   of   law   rather   than   by  the 
rules    of   chancery.      Sanitary   Dist. 
V.   Munger,  264  111.  256,  106  N.   E. 
185.     See  Warren  v.  First  Division 
&c.   R.   Co.,   18   Minn.  384.     And   a 
statute    allowing   challenges    in    all 
civil    cases    was    held    to    apply    to 
eminent  domain  proceedings.  Con- 
vers  V.   Grand  Rapids  &c.    R.   Co., 
18    IMich.   459.     Proceedings   under 
some  statutes  has  been   held  to  be 
special  proceedings,  to  which  acts 
governing  civil  cases  do  not  apply. 
Knoth    V.    Barclay,    8    Colo.   300,   6 
Pac.    924;    Sacramento   &c.    R.    Co. 
V.    Harlan,   24    Cal.    334;    Dukes   v. 
Working,    93    Ind.    501.      See    also 
Erie    R.    Co.    v.    Steward,    59   App. 
Div.  187,  69  N.  Y.  S.  57;  Bowersox 
V.  Seneca  County  Comrs.,  20  Ohio 
St.    496;    Chappell    v.    Edmondson 
Ave.   &c.    R.    Co..   83   Md.   512,   35 
Atl.    19;    Western    Am.    Co.    v.    St. 
Ann.    Co..   22    Wash.    158,   60    Pac. 
158. 


899 


PROCEDFRE   I\    APl'ROIMIIATION   CASES 


§  1292 


the  provisions  of  the  statuU'  ])r('scril)in.^-  tlie  mode  of  proceeding 
must  be  ]>ursue(l.'' 

§  1292   (1010a).     Civil  action — Removal  to  federal  court. — As 

intimated  in  the  hist  preceding  section,  while  a  condemnation 
proceeding-  is  perhaps  to  be  regarded  as  a  special  proceeding 
rather  than  a  civil  action,  a  condemnation  i^roceeding  may  never- 
theless be  within  the  meaning  of  some  statute  or  rule  of  law 
relative  to  civil  actions.  Thus,  it  now  seems  to  be  well  settled 
that  it  is  a  "suit  at  law''  within  the  meaning  of  the  provision  giv- 
ing the  courts  of  the  United  States  jurisdiction  in  certain  cases. ^ 
So,  although  instituted  in  a  state  court  under  a  statute  providing 


6  The  decisions  are  very  numer- 
ous and  we  cite  only  a  few  of  the 
great  number.  Charleston  &c.  Co. 
V.  Comstock,  36  W. 'Va.  263,  15 
S.  E.  69;  Colorado  &c.  R.  Co.  v. 
Allen,  13  Colo.  229,  22  Pac.  605; 
Colorado  Fuel  &c.  Co.  v.  Four 
Mile  R.  Co.,  29  Colo.  90.  66  Pac. 
902;  Wilson  v.  Baltimore  &c.  R. 
Co.,  5  Del.  Ch.  524;  Elbert  v.  Scott, 
5  Boyce  (Del.)  1,  90  Atl.  587; 
Florida  Central  &c.  R.  Co.  v.  Bear, 
43  Fla.  319,  31  So.  287;  Mobley  v. 
Breed,  48  Ga.  44;  Chicago  &c.  R. 
Co.  V.  Gait,  133  111.  657.  24  N.  E. 
674;  Dickey  v.  Chicago,  152  111. 
468,  38  N.  E.  932;  Tracy  v.  Eliza- 
bethtown  &c.  R.  Co.,  80  Ky.  259, 
14  Am.  &  Eng.  R.  Cas.  407;  Mis- 
souri &c.  R.  Co.  V.  Carter.  85  Mo. 
448;  New  Jersey  &c.  Co.  v.  Morris 
&c.  Co.,  44  N.  J.  Eq.  398,  15  Atl. 
227,  1  L.  R.  A.  133,  and  note:  Stan- 
nards  &c.  Association  "v.  Brandes, 
35  N.  Y.  S.  1015;  Dargan  v.  Caro- 
lina &c.  R.  Co.,  113  N.  Car.  596, 
18  S.  E.  653;  Southern  Kansas  R. 
Co.  v.  Oklahoma  City,  12  Okla.  82, 
69  Pr.c.  1050;  Johnston  v.  Delaware 
&c.  R.  Co..  245  Pa.  St.  338,  91  Atl. 


618.  Providence  &c.  R.  Co.,  Peti- 
tion of,  17  R.  I.  324,  21  Atl.  965; 
Lewis  V.  St.  Paul  &c.  R.  Co.,  5  S. 
Dak.  148,  58  N.  W.  580,  57  Am.  & 
Eng.  R.  Cas.  612;  Illinois  Cent.  R. 
Co.  v.  East  Sioux  Falls  Quarrj^  Co., 
33  S.  Dak.  63,  144  N.  W.  724;  Gal- 
veston &c.  R.  Co.  v.  Mud  Creek 
&c.  Co.,  1  Tex.  App.  (Civil  Cases) 
169;  Alexandria  &c.  R.  Co.  v.  Al- 
exandria &c.  R.  Co.,  75  Va.  780,  40 
Am.  R.  743  and  note,  10  Am.  & 
Eng.   R.   Cas.  23. 

'^  Madisonville  Traction  Co.  v. 
St.  Bernard  Min.  Co.,  196  U.  S. 
239,  25  Sup.  Ct.  251,  253.  254,  49  L. 
ed.  462;  Kohl  v.  United  States,  91 
U.  S.  367,  23  L.  ed.  449.  In  the 
last  case  cited  it  is  said  that  "it  is 
difficult  to  see  why  a  proceeding  to 
take  land  in  virtue  of  the  govern- 
ment's eminent  domain,  and  de- 
termining the  compensation  to  be 
made  for  it,  is  not,  within  the 
meaning  of  the  statutes,  a  suit  at 
common  law,  when  initiated  in  a 
court.  It  is  an  attempt  to  enforce 
a  legal  right."  See  also  chapter  on 
Removal  of  Causes. 


§  1292 


K.VILUO.VD.S 


900 


for  appraisers  or  commissioners  and  not  a  common  law  jury,  it 
is  a  civil  suit  within  the  meanin^?  of  the  federal  judiciary  act  and 
is  removable  to  the  federal  court  where-  ihr  re(|uisite  dixersity  of 
citizenship  exists  and  the  jurisdictional  amount  is  involved.** 
But  after  the  removal  the  federal  court  proceeds  under  the  sanc- 
tion of.  and  accordini,^  to,  the  state  statute  i^overnin.^-  the  con- 
demnation proceedings." 


8  South    Dakota    &c.    R.    Co.    v. 
Chicago  &c.  R.  Co.,  141   Fed.  578; 
Colorado  Midland  R.  Co.  v.  Jones, 
29  Fed.  193;  Mississippi  &c.  Boom 
Co.  V.  Patterson.  98  U.  S.  403,  25 
L.   ed.  206;    Searl   v.   School    Dist.. 
124  U.   S.    197,  8   Sup.    Ct.  460,  31 
L.   ed.   415;   Madisonville   Traction 
Co.   V.   St.   Bernard   Min.    Co.,   196 
U.  S.  239,  25  Sup.  Ct.  251,  49  L.  ed. 
462.    It  is  also  held  in  the  first  case 
cited  that  a  proceeding  by  a  rail- 
road company  to  condemn  right  of 
way  against   a  number    of   defend- 
ants owning  land  in  severalty  pre- 
sents a  separable  controversy  with 
respect  to   each   f)vvner,  and  is   re- 
movable by  a  defendant,  who  is  a 
citizen  of  another  state,  where  the 
requisite    amount    is    involved    to 
give  the   federal  court  jurisdiction; 
that    an    allegation    in    the    pctiticn 
for    removal,    that    the    amount    in 
dispute  exceeds  $2,000,  exclusive  of 
interest   and   costs,   is   sufificient   to 
give  the  federal  court  jurisdiction, 
although    there    may    be    no    proof 
given    on    the    trial    to    sustain    it; 
that  the  summons  being  served  on 
September    16th    requiring    defend- 
ant to  appear  and  plead  within  20 
days,  exclusive  of  the  day  of  serv- 
ice,   a    petition    for    removal     filed 
on   October  6th  was  in   time;   that 
the   statute,   while   authorizing   one 
railroad   company   to   "cross,   inter- 


sect, join  and  unite  its  road  with 
the  railroad  of  any  other  com- 
pany," did  not  authorize  it  to  build 
its  rorul  longitudinally  upon  the 
right  of  way  of  another  company, 
and  in  the  absence  of  such  statu- 
tory authority  it  can  not  condemn 
a  right  of  way  to  do  so;  and  that 
under  the  statute  providing  that, 
if  the  two  companies  are  unable  to 
agree  as  to  the  compensation  to  be 
made  or  the  point  or  manner  of 
crossing,  the  same  may  be  deter- 
mined by  condemnation  proceed- 
ings, an  efifort  to  make  an  agree- 
ment is  a  condition  precedent  to 
the  right  to  maintain  condemnation 
proceedings. 

9  Broadmoor  Land  Co.  v.  Curr, 
142  Vcd.  421.  See  also  ]Madison- 
ville  Traction  Co.  v.  St.  Bernard 
Min.  Co.,  196  U.  S.  239,  25  Sup.  Ct. 
251,  256,  49  L.  ed.  462;  East  Tenn. 
&c.  R.  Co.  V.  Southern  Tel.  Co., 
112  U.  S.  310,  5  Sup.  Ct.  169,  28  L. 
ed.  747;  Postal  Tel.  Cable  Co.  v. 
Southern  R.  Co.,  122  Fed.  156.  It 
is  also  held  by  a  majority  decision 
in  the  case  first  cited,  that  where 
the  statute  provided  that  any  party 
to  proceedings  for  the  condemna- 
tion of  land  "before  the  appoint- 
ment of  commissioners  ....  and 
before  the  expiration  of  the  time 
for  the  defendant  to  appear  and 
answer  may  demand  a  jury  of  free- 


901 


PROCEDURE  IN  APPROI'UIATIOX  CASES 


§  1293 


§  1293  (1011).  Tribunals — Generally. — As  we  have  elsewhere 
shown  private  property  can  not  be  seized  for  a  public  use  with- 
out the  payment  of  compensation  to  the  owner. ^°  Compensation 
must,  as  we  have  said,  be  determined  and  tixed  by  a  judicial 
tribunal,  for  the  question  of  compensation,  under  our  system,  is 
a  judicial  question. ^^  and  neither  lej^islative  nor  administrative. 
As  there  must  be  compensation,  and  as  the  question  of  compen- 
sation is  a  judicial  one,  provision  must  be  made  for  a  tribunal 
invested  with  power  to  determine  the  measure  of  compensation 
to  which  the  land-owner  is  entitled.  What  the  power  of  the 
tribunal  shall  he  is,  to  a  very  great  extent,  a  legislative  question, 
but  the  tribunal  must  be,  in  its  nature,  judicial,  and  must  have 
power  to  ascertain  and  determine  the  question  of  compensation. 
There  is,  as  will  hereafter  appear,  some  conflict  as  to  the  power 
of  a  temporary  tribunal,  such  as  appraisers,  commissioners  or  the 
like,  but  we  think  it  entirely  clear  on  principle,  that  before  a  final 
decision  of  the  (juestion  of  compensation  there  must  be  judicial 
action.  A\'e  are.  indeed,  persuaded  that  on  principle  the  tempor- 
ary tribunal  must  be  invested  with  quasi  judicial  powers  at  least, 
since  the  power  to  determine  the  measure  of  compensation  can 
not  be  justly  regarded  as  administrative,  legislative  or  executive, 
but  there  are  respectable  authorities  to  the  contrary. ^^ 


holders  residing  in  the  county  in 
which  the  petition  is  tiled  to  as- 
certain, deterinine  and  appraise  the 
damages  or  compensation  to  be  al- 
lowed," and  a  defendant  land-own- 
er removed  the  condemnation  pro- 
ceedings into  a  federal  court  and 
appeared  therein,  and  answered  on 
the  date  set  by  the  court  for  hear- 
ing the  cause,  without  at  that  time 
demanding  a  jury,  it  waived  its 
right  to  such  jury,  and  could  not 
thereafter  be  heard  to  say  that  such 
date  was  not  the  time  for  it  to  ap- 
pear and  answer. 

1"  Ante,  §  1240. 

11  Ante.  §  1245;  Elliott's  Roads 
and  Streets  (3d  ed.),  §  309,  et  seq. 
Sec     also     Boston     El.     R.     Co.     v. 


Presho,  174  Mass.  99,  54  N.  E.  348; 
Ames  V.  Lake  Superior  &c.  R.  Co., 
21  Minn.  241;  Goerke  v.  Manitou, 
25  Colo.  App.  482,  139  Pac.  1051: 
Monongahela  Nav.  Co.  v.  United 
States,  148  U.  S.  312,  13  Sup.  Ct. 
622,  Zl  L.  ed.  463. 

12  See  notes  to  Bass  v.  Fort 
Wayne,  121  Ind.  389,  23  N.  E.  259. 
In  Vinegar  Bend  Lumber  Co.  v. 
Oak  Grove  &c.  R.  Co.,  89  Miss.  84, 
43  So.  292,  it  is  held  that  the  only 
question  the  special  eminent  do- 
main court  can  determine  is  the 
amount  of  compensation  and  not 
the  right  to  compensation  or  to 
condemn.  See  also  Georgia  &c.  R. 
Co.  V.  Ridlehuber,  38  S.  Car.  308, 
17  S.  E.  24. 


'<>  1294 


RAILROADS 


902 


§  1294  (1012).  Nature  of  the  tribunal  for  the  assessment  of 
benefits  and  damages. — In  the  absence  of  C(institulit)nal  provi- 
sions prescribing  the  mode  of  creatiniL;-  tribunals  tor  the  assess- 
ment of  benefits  and  damages,  the  legislature  may  estal)lish  such 
tribunals  as  it  deems  proper,  but,  as  is  evident  from  what  has 
been  said,  it  must  provide  for  a  judicial  tribunal,  that  is,  a 
tribunal  having  power  to  hear  and  decide,  though,  according  to 
the  weight  of  authority,  not  a  court  in  the  strict  sense  of  the 
term.  Unless  the  constitution  so  requires  the  legislature  is  not 
bound  to  submit  the  assessment  of  benefits  to  a  jury  of  twelve 
men.  The  right  of  trial  by  jury,  which  the  American  constitu- 
tions generally  declare  shall'remain  inviolate,  does  not  embrace 
proceedings  in  cases  of  the  seizure  of  private  property  under  the 
right  of  eminent  domain.^"     There  are  cases  holding  that  unless 


1^  Anderson  v.  Caldwell,  91  Ind. 
451,  46  Am.  Rep.  613;  Lipes  v. 
Hand,  104  Ind.  503,  1  N.  E.  871.  4 
N.  E.  160;  Butler  v.  Worcester,  112 
Mass.  541,  556;  Kramer  v.  Cleve- 
land &c.  R.  Co.,  5  Ohio  St.  140, 
145;  McKinney  v.  Monongahela  &c. 
Co.,  14  Pa.  St.  65,  53  Am.  Dec.  517; 
Pennsylvania  R.  Co.  v.  First  Ger- 
man Lutheran  Congregation,  53  Pa. 
St.  445.  See  also  Kansas  City  v. 
Vineyard,  128  Mo.  75,  30  S.  W.  326; 
Bonaparte  v.  Camden  &c.  R.  Co.,  1 

Baldwin  (U.  S.)  205;  Missouri  Pac. 
R.  Co.  v.  Humes,  115  U.  S.  512,  6 
Sup.  Ct.  110,  29  L.  ed.  463;  Bauman 
v.  Ross,  167  U.  S.  548,  17  Sup.  Ct. 
966,  42  L.  ed.  270;  Postal  Tel.  Co. 
V.  Southern  R.  Co.,  122  Fed.  176; 
Montgomery  &c.  R.  Co.  v.  Sayre, 
72  Ala.  443;  Cairo  &c.  R.  Co.  v. 
Trout,  32  Ark.  17;  Kimball  v.  Board 
&c.,  46  Cal.  19;  Whiteman  v.  Wilm- 
ington &c.  R.  Co.,  2  Harr.  (Del.) 
514,  33  Am.  Dec.  411;  Bailey  v. 
Philadelphia    &c.    R.    Co.,    4    Harr. 

(Del.)  389,  44  Am.  Dec.  593:  John- 
son V.  Joliett  &c.  R.  Co.,  23  111.  202; 


Evansville  &c.  R.  Co.  v.  Miller,  30 
Ind.  209;  Indianapolis  &c.  Gravel 
Road  Co.  V.  Christian,  93  Ind.  360; 
Bradley,  In  re,  108  Iowa  476,  79  N. 
W.  280;  Central  Branch  &c.  R.  Co. 
V.  Atchison  &c.  R.  Co.,  28  Kans. 
453;  Henderson  &c.  R.  Co.  v.  Dick- 
erson,  17  B.  :\Ion.  (Ky.)  173,  66  Am. 
Dec.  148;  People  v.  Michigan  &c. 
R.  Co.,  3  Mich.  496;  Ames  v.  Lake 
Superior  &c.  R.  Co.,  21  Minn.  241; 
New  Orleans  &c.  R.  Co.  v.  Drake, 
60  Jiliss.  621;  Louisiana  &c.  R.  Co. 
V.  Pickett.  25  Mo.  535;  Kansas  City 
&c.  R.  Co.  V.  Kansas  City  &c.  R. 
Co.,  118  Mo.  599,  24  S.  W.  478;  Vir- 
ginia &c.  R.  Co.  V.  Elliott,  5  Nev. 
358;  Mt.  Washington  Road  Co., 
Petition  of,  35  N.  H.  134;  Beekman 
V.  Saratoga  &c.  R.  Co.,  3  Paige  (N. 
V.)  45.  22  Am.  Dec.  679  and  note; 
Raleigh  &c.  R.  Co.  v.  Davis,  2  Dev. 
&  B.  (N.  Car.)  L.  451;  Mclntire  v. 
Western  N.  Car.  R.  Co.,  67  N.  Car. 
278;  Kramer  v.  Cleveland  &c.  R. 
Co.,  5  Ohio  St.  140;  Kendall  v. 
Post,  8  Ore.  141;  Pennsylvania  R. 
Co.  V.  First  German  Lutheran  Con- 


903 


I'KOCEDLHK    IX    .\1'1'K(J1'UIAT1()N    CASES 


§  1294 


the  constitution  especially  provides  otherwise  the  trilnnial  to 
cissess  damages  upon  condemnation  may  consist  of  any  person 
or  number  of  persons,  at  the  option  of  the  legislature.^*  But,  we 
suppose  that  where  the  legislature  is  forbidden  to  enact  special 
and  local  laws  it  can  not  designate  particular  persons  to  form  a 
portion  or  all  of  such  tribunal,  to  act  in  a  particular  case.^^  In 
states  where  the  right  to  a  jury  trial  in  such  proceedings  is  guar- 
anteed by  the  constitution,  if  an  assessment  by  commissioners 
is  provided  for,  it  must  be  reviewable  by  a  jury  on  appeal.'^''  In 
a  case  where  the  constitution  provides  for  an  assessment  by  a 
jury  of  twelve  men,  as  prescribed  by  law,  a  statute  providing  for 


gregation,  53  Pa.  St.  445;  Anderson 
V.  Turbeville,  6  Caldw.  (Tenn.)  150; 
Buffalo  Bayou  &c.  R.  Co.  v.  Ferris, 
26  Te.x.  588;  Houston  &c.  R.  Co.  v. 
Milburn,  34  Tex.  224;  Gold  v.  Ver- 
mont Cent.  R.  Co.,  19  Vt.  478. 
Contra  Soutluvestern  R.  Co.  v. 
Southern  &c.  Co.,  46  Ga.  43,  12  Am. 
Rep.  585;  Newcomb  v.  Smith,  1 
Chandler  (Wis.)  71;  Salem  Turn- 
pike &c.  V.  Essex  Co.,  100  Mass. 
282.  See  ^lartin  v.  Tyler,  4  N. 
Dak.  278,  60  N.  W.  392,  25  L.  R.  A. 
838;  Condemnation  of  Independ- 
ence Av.  &c.,  In  re,  128  Mo.  272, 
30  S.  W.  763;  Kansas  City  v.  Smart, 
128  AIo.  272,  30  S.  W.  nZ\  People 
V.  Board  of  Trustees,  80  Hun  385, 
30  N.  Y.  S.  325.  See  also  Louis- 
ville &c.  R.  Co.  V.  Lang,  160  Ky. 
702,  170  S.  W.  2;  Postal  Tel.  &c. 
Co.  V.  Southern  Rj'.  Co.,  122  Fed. 
156  (jury  trial  not  rct[uired  after 
transfer  to  Federal  court  useless 
required  by  state  law). 

1*  Evansville  &c.  R.  Co.  v.  Miller, 
30  Ind.  209;  Indianapolis  &c. 
Gravel  Road  Co.  v.  Christian.  93 
Ind.  360;  Ames  v.  Lake  Superior 
cS:o.  R.  Co..  21   Minn.  241:  Xow  Or- 


leans &c.  R.  Co.  V.  Drake.  60  IMiss. 
621;  Virginia  &c.  R.  Co.  v.  Elliott, 
5  Nev.  358;  Raleigh  &c.  R.  Co.  v. 
Davis,  2  Dev.  &  B.  (N.  Car.)  L. 
451;  Kramer  v.  Cleveland  &c.  Co.. 
5  Ohio  St.  140. 

i"'  Langford  v.  Count}^  Commis- 
sioners, 16  ]\linn.  375. 

IS  Aldridgc  v.  Tuscumbia  &c.  R. 
Co.,  2  Stew.  &  P.  (Ala.)  199,  23 
.\m.  Dec.  307;  Whitehead  v.  .\rkan- 
sas  Cent.  R.  Co.,  28  Ark.  460; 
Whiteman  v.  Wilmington  &c.  R. 
Co.,  2  Harr.  (Del.)  514,  Zl>  Am. 
Dec.  411;  Atlanta  v.  Central  R.  Co., 
53  Ga.  120;  Norristown  &c.  Turnp. 
Co.  V.  Burkett,  26  Ind.  53;  Louis- 
ville &c.  R.  Co.  v.  Dryden,  39  Ind. 
393;  Tharp  v.  Witham,  65  Iowa  566, 
22  N.  W.  677.  See  also  Wabash  R. 
Co.  V.  Coon  Run  Drainage  Dist., 
194  III.  310,  62  N.  E.  679.  And  this 
is  held  sufficient.  Shively  v.  Lank- 
ford,  174  Mo.  535,.  74  S.  W.  835. 
But  see  where  a  jury  of  twelve 
men  in  a  court  of  record  was  re- 
quired by  the  constitution.  South 
Carolina  &c.  Ry.  v.  Ellen.  95  S.  Car. 
68,  78  S.  E.  963,  Ann.  Cas.  191 5B, 
1043. 


J;   12!)5  KAILUOADS  i'O-i 

a  decision  1>\"  a  majority  was  held  in\.nli<l.''  Where  a  jury  is 
provided  for  by  a  statute  and  there  are  no  words  hinitinj4  or  de- 
fining- the  meaning  of  the  term  "jury."  the  statute  is  generally 
ludd  to  mean  a  common  law  jury  of  twelve  men."'  In  Colorado 
where  the  statute  authorized  a  party  in  condemnation  proceed- 
ings to  demand  a  jury  to  assess  the  damages  it  was  lield  tluit  when 
the  hearing  is  in  term  time,  the  jury  must  be  drawn  from  the 
regular  panel  in  attendance,  or  from  persons  summoned  for  jury 
duty  in  term  time,  in  the  manner  provided  by  statute.'''  But  it 
is  also  held  that  where  tlu'  constitution  recognizes  different  kinds 
of  juries  in  different  tribunals,  the  legislature  may  prescribe 
whichever  form  is  used  in  the  tribunal  in  wdiich  the  proceedings 
are  conducted.-'"  The  right  to  a  jury  trial  may  be  waived,  even 
though  the  constitution  provides  that  the  damages  shall  be  as- 
sessed by  a  jury,-^  and  the  failure  to  appeal  from  a  jireliminary 
award  of  appraisers  has  been  held  to  amount  to  such  a  waiver. -- 

§  1295  (1013).  Creation  of  the  tribunal — Legislative  power. — 
Broad  as  is  the   legislative  power  over   the   subject  of  creating 

17  Jacksonville  &c.  R.  Co.  v.  :\Iilc'  R.  Co..  2Q  Colo.  90,  66  P:ic. 
Adams,  33  Fla.  608,  15  So.  257.  24      902. 

L.  R.  A.  272;  Chicago  &c.  R.  Co.  v.  20  McManus   v.    McDoiiough.    107 

Hock,  118  111.  587.  9  N.  E.  205.  But  111.   95.     In    New    York,   where   the 

where    there    is    no    such    constitu-  constitution    requires    the    damages 

tional   provision    as   that   quoted    in  to   be   appraised   by   a   jurj'   or   not 

the    text,    provision    may    be    made  less    than    three    commissioners,    it 

for  a  majority  decision.  Post  §  1298.  was  held  competent  for  the  legisla- 

As  to  method  of  reaching  a  verdict,  ture     to     provide     for     a     tribunal 

see    Orange   &c.   R.   Co.   v.    Craver.  termed    a    jury,    consisting    of    less 

32    Fla.   28,    13    So.   444,    57   Am.    &  than  twelve  members,  which  should 

Eng.    R.    Cas.    511.  decide  all   questions  coming  before 

18  Chicago  &c.  R.  Co.  v.  Sanford,  it,  by  a  majority  vote.  Cruger  v. 
23  Mich.  418;  Mitchell  v.  Illinois  Hudson  River  R.  Co..  12  N.  Y.  190. 
&c.  R.  Co.,  68  111.  286;  Whitehead  -1  Chicago  &c.  R.  Co.  v.  Hock, 
v.  Arkansas  &C.-R.  Co.,  28  Ark.  460;  118  111.  587,  9  N.  E.  205:  Chowan 
Clark  V.  Utica,  18  Barb.  (N.  Y.)  &c.  R.  Co.  v.  Parker,  105  N.  Car. 
451;  Smith  v.  Atlantic  &c.  R.  Co..  246,  11  S.  E.  328;  Beynon  v. 
25  Ohio  St.  91.  Questions  coming  Brandywinc  &c.  Co.,  39  Ind.  129. 
before  such  a  jury  must  be  decided  22  Tharp  v.  Witham,  65  Iowa  566. 
by  the  unanimous  voice  of  the  But  compare  South  Carolina  West- 
members.  McLellan  v.  County  ern  &c.  Ry.  v.  Ellen,  95  S.  Car.  68. 
Commissioners,  21  Maine  390.  78  S.  E.  963,  Ann.  Cas.  1915B.  1042. 

19  Colorado  .Fuel  &c.  Co.  v.  Four 


!)().")  J'HOCKDIKK    IX    Al'PHOl'KlATIOX    CASES  §  1296 

tribunals  for  ihc  assessments  of  benefits  and  (lamaj:^es  the  power 
is  by  no  means  unHmited.  The  leg'ishiture  can  not  under  guise 
of  providing"  rules  of  procedin-e  so  fetter  the  tribunal  that  it  can 
not  exercise  free  and  impartial  judgment.  It  may  be  safely  laid 
down  as  a  general  rule  that  the  legislature  can  not  make  arl)itrary 
rules  that  will  restrain  the  tribunal  from  exercising  judicial  func- 
tions, although  it  may  prescribe  rules  of  procedure.  The  tribunal 
can  not  be  sul)jected  to  legislative  dictatorship  and  hence  the 
legislature  can  not  directly  or  indirectly  declare  what  the  land 
owner's  com])ensation  slirill  l)e.  but  must  submit  that  question  to 
an  impartial  trilninal.-''  The  i)rinciple  we  have  stated  prohibits 
the  legislature  from  effectively  declaring  that  the  tribunal  shall 
adopt  assessment  or  estimate  of  an  assessor  or  any  officer.-* 

§  1296  (1013a).  Right  of  land-owner  to  have  question  of 
right  to  take  determined. —  It  dcx's  not  follow  from  the  fact  that 
a  lan(l-()\\-ner  has  a  constitutional  right  to  compensation  for 
property  taken  for  public  uses,  and  a  right  to  a  hearing  at  some 
stage  that  he  has  a  like  constitutional  right  to  be  heard  upon  the 
question  whether  his  private  property  shall  l)e  taken  for  such 
uses.  It  is  said:  "It  is  wholly  a  matter  of  statutory  construc- 
tion whether  there  shall  be  a  hearing  before  land  shall  be  taken 
for  i)ulilic  uses  under  a  statute  allowing  the  taking,  and  what  the 
hearing  shall  be.  and  who  shall  be  parties  to  it  or  be  heard."-"' 
The  question  of  necessity  for  the  taking  is  a  legislative  ques- 
tion.'-'^    Statutes  usually   ])rovide.  however,  for  such  a  hearing. 

23  Ricli  v.  Chicago.  59  111.  286:  Co.,  60  Md.  263:  Commonwealth  v. 
Powers  Appeal.  29  -Mich.  504:  Ame-;  Pittsburgh  &c.  R.  Co.,  58  Pa.  St. 
V.  Lake  Superior  (!tc.  R.  Co..  21  26:  Kansas  v.  Baird.  98  .Mo.  215. 
Minn.  241:  People  v.  Kni-,kern.  51  11  S.  W.  243,  562;  Rhine  v.  AlcKin- 
N.  V.  52:  Bufifalo,  .Matter  of.  139  ncy,  53  Tex.  354:  Bruggerman  v. 
N.    Y.    422.    34    N.    E.    1103:    ante.  True,  25  Minn.  123. 

§   1245.     See    State   v.    Sewer    Com-  -•'•  Chandler  v.   Railroad   C<inimis- 

missioners,  39  N.  J.   L.  665:   Davi^  sioners,  141  Mass.  208,  5  N.  E.  50'). 

V.  Howell,  47  N.  J.  L.  280:  State  v.  See  also   Bemis   v.   Guirl    Drainage 

Perth  Amboy.  52  N.  J.    L.    132,    18  Co.,    182    Ind.    36.    105    N.    E.     496: 

At).  670.  Rensselaer  &c.  R.   Co.  v.   Davis.  4.^ 

24  County  Court  v.  Griswold,  .'^  '  N.  Y.  137:  People  v.  Smith.  21  X. 
I^Io.    175.     See    generally    Pennsyl-  Y.  595. 

vania    R.    Co.   v.    Baltimore    &c.    R.  '-^b  gee  ante.  §  1188. 


v.;  r_>!)(  RAii.KOAns  906 

espcciall}-  where  it  is  sous^ht  to  take  for  ])ulilic  purpose.  ))ro])erty 
;i.!re;ul\'  deNoted  io  a  pul)lic  use.-' 

§  1297  (1013b).  Determination  of  right  of  interurban  road  to 
cross  railroad  tracks. — As  elsewhere  shown,  in  some  jurisdictions 
interurl)an  raih'oads  are  incorporated  under  the  general  railroad 
law.  In  such  a  jurisdiction,  wliere  an  iiiterurl:)an  road  was  or- 
ganized under  the  general  railroad  law  it  was  regarded  as  a  rail- 
road company  and  subject  to  all  statutory  provisions  affecting 
the  right  of  such  companies  to  make  crossings  over  the  tracks  of 
the  railroad  companies.-*  Under  an  Indiana  statute  requiring 
the  manner  of  the  crossing  to  be  determined  by  commissioners 
appointed  by  the  circuit  court,  it  was  licld  that  a  report  of  the 
commissioners  is  sufficiently  certain  which  directs  that  the  cross- 
ing shall  be  a  frog  crossing  constructed  of  .the  same  weight  and 
kind  of  rails  as  are  in  the  tracks  of  the  railroad,  and  to  be  of  a 
pattern  in  general  use,  and  requiring  a  derailing  device  so  con- 
structed that  the  electric  cars  could  not  be  nni  oxqv  the  railroad 
tracks  except  by  connecting  the  tracks  of  the  electric  cars  by  a 
lever  on  the  side  from  which  the  car  was  approaching.-'-'  The 
general  subject  of  condemnation  by  interurban  railroad  com- 
panies is  considered  in  the  chapter  devoted  to  the  treatment  of 
such  companies. 

§  1298  (1014).  Tribunal — Jurisdiction — Decision  of  majority. 
— It  is  essential  to  the  wilidity  of  the  decision  of  a  tribunal  that 
it  should  have  jurisdiction  of  the  general  subject,  for  if  there  is 
no  jurisdiction  the  proceedings  are  coram  non  judice.  Where 
the  tribmial  is  a  temporary  one  of  naked  statutor^'  j^owers  there 
can  be  no  doubt   that  jm-isdiction  of  the   sul)ject  nnist  aftlrma- 

-~  Ante,  §  1213.  Sec  also  IJostdii  N.  K.  674.  Sec  also  j^cnerally  Cook 
&c.  R.  Co.,  In  re,  79  N,.  Y.  64  (rail-  i^vc.  v.  iM-ansvillc  Terminal  R.  Co., 
road  crossing);  Kansas  City  &c.  R.  175  Ind.  ,3.  9.3  N.  I''.  279:  Indian- 
Co.  V.  Kansas  City  &c.  R.  Co.,  11<S  .apolis  &c.  R.  Co.  v.  Indianapolis 
Mo.  599,  24  S.  W.  478.  &e.  Transit  Co.,  33   Ind.  App.  337, 

28Malott  V.  Collinsvillc  &c.  Kleo.  67  N.  E.  1013;  Galveston  &c.  R.  Co. 

R.  Co.,  108  Fed.  313.  v.  Ilonston  Elec.  Co.,  57  Tex.  Civ. 

2»  Wabash     &c.     R.     Co.     v.     1m.  .\i)p.  170.  122  S.  W.  287. 
Wayne  &c.  R.  Co.,  161  Ind.  295,  67 


[•07 


PROCEDURE   IN   APPROPRIATION   CASES 


§1298 


tively  appear  and  the-  weight  of  authority  is  that  this  is  true 
where  the  tribunal  is  one  of  inferior  jurisdiction  although  it  is  a 
permanent  judicial  tribunal,  jurisdiction  of  the  subject  can  not 
be  conferred  by  the  parties,  but  must  be  given  by  law.  These 
elementary  principles  apply  to  tribunals  in  appropriation  or  con- 
demnation cases  and  it  is  not  deemed  necessary  to  do  much  more 
than  barely  mention  them.-^"  In  condemnation  proceedings  only 
such  questions  can  be  tried  as  the  statute  makes  provision  for 
trying. '"^  Where  the  jurisdiction  is  vested  in  the  courts  it  is 
held  that  a  judge  can  not  hear  the  case  out  of  court. ^-  The  gen- 
eral rule  is  that  proceedings  under  the  right  of  eminent  domain 
must  be  brought  in  the  county  in  which  the  land  is  situated.^^ 
But  if  the  land  is  in  more  than  one  county  it  is  held,  under  most 
statutes,  that  the  proceedings  may  be  instituted  in  either 
ct)unty.''''     Where  the  law  provides  for  a  trial  by  jury  and  does 


3"  See  generally  Gray  v.  St.  Louis 
&c.  R.  Co.,  81  Mo.  125,  22  Am.  & 
Eng.  R.  Cas.  106;  Denver  &c.  Co. 
V.  Otis,  7  Colo.  198,  2  Pac.  925; 
Denver  City  &c.  R.  Co.  v.  Mid- 
daugh,  12  Colo.  434,  21  Pac.  565,  13 
Am.  St.  234;  De  Buol  v.  Freeport 
&c.  R.  Co.,  Ill  111.  499;  Hughes  v. 
Lake  Erie  &c.  R.  Co.,  21  Ind.  175; 
Kansas  City  &c.  Co.  v.  Campbell, 
62  Mo.  585;  Chicago  &c.  R.  Co.  v. 
Young,  96  Mo.  39,  8  S.  W.  776 
Long  Island  &c.  R.  Co.,  In  re,  45 
N.  Y.  364;  People  v.  Tubbs,  49  N. 
Y.  356;  Galveston  &c.  Co.  v.  Gulf 
&c.  R.  Co.,  72  Tex.  454,  10  S.  W. 
537. 

^1  Oregon  &c.  R.  Co.  v.  Daily,  3 
Ore.   164. 

32  Broadwa}^  &c.  R.  Co.,  In  re,  li 
Hun  7,  57  N.  Y.  S.  108;  Washing- 
ton &c.  R.  Co.  V.  Coeur  D'.-Vlene 
&c.  R.  Co.,  2  Idaho  991,  28  Pac. 
394.  See  Lewis  v.  St.  Paul  &c.  R. 
Co.,  5  S.  Dak.  148,  58  N.  W.  580, 
57  Am.  &  Eng.  R.  Cas.  612;  Balti- 
THore   &c.   R.   Co.  v.   Louisiana   &c. 


R.  Co.,  39   La.  Ann.  659,  2  So.  67. 

^'^  California  &c.  R.  Co.  v.  South- 
ern &c.  R.  Co.,  65  Cal.  409,  4  Pac. 
388;  Pool  v.  Simmons,  134  Cal.  621. 
66  Pac.  872;  Missouri  &c.  R.  Co.  v. 
Carter,  85  Mo.  448,  28  Am.  &  Eng. 
R.  Cas.  249;  St.  Louis  &c.  R.  Co.  v. 
Lewright,  113  Mo.  660;  Buffalo,  In 
re,  139  N.  Y.  422,  34  N.  E.  1103; 
Perry  v.  Pittsburgh  &c.  St.  R.  Co.. 
64  Pa.  Superior  Ct.  583.  Condemna- 
tion proceedings  should  be  matter 
of  record.  Lewis  v.  St.  Paul  &c. 
R.  Co.,  5  S.  Dak.  148,  58  N.  W. 
580,  57  Am.  &  Eng.  R.  Cas.  612. 

34  Bates  v.  Ray,  102  Mass.  458; 
St.  Louis  &c.  R.  Co.  v.  Postal  Tel. 
Co.,  173  111.  508,  51  N.  E.  382  (and 
the  necessary  right  of  way  for  the 
entire  line  condemned);  Postal  Tel. 
Cable  Co.  v.  Oregon  Short  Line  R. 
Co.,  23  Utah  474.  65  Pac.  735,  90 
Am.  St.  705;  Postal  Tel.  Cable  Co. 
V.  Texas  &c.  R.  Co.  (Tex.  Civ. 
App.),  46  S.  W.  912;  Helena  v. 
Rogan,  26  Mont.  452.  68  Pac.  798. 
69  Pac.  709.  Compare  Mono  Power 


;;  12!)f)  KAILKOADS  908 

not  pru\  ide  tor  a  tlccision  \)y  a  majority,  llu-n  \\  c  sui)])osr  the 
ordinar\  rule  ai)i)lies  and  the  decision  nnist  l)e  unanimutis.  The 
rule  declared  by  some  ol'  the  cases  is  that  where  there  is  a  power 
granted  to  two  or  more  all  must  unite  except  where  provision  is 
made  to  the  contrary.  l)ut  there  is  a  diversity  of  opinion  upon  this 
(juestion.""''  It  has  been  held  that  where  a  general  statute  ])rt)- 
\ides  that  a  majorit}'  of  persons  designated  to  discharge  certain 
duties  may  act  the  majority  of  commissioners  appointed  to 
assess  benefits  and  damages  may  make  an  award.'*'  The  rule 
that  where  courts  have  concurrent  jurisdiction  the  one  which  first 
obtains  jurisdiction  will  retain  it  a])])lies  to  condemnation  ])ro- 
ceedings."'  but  where  the  statute  requires  joint  action  I)}-  two 
tribunals  both  nuist  act.'"" 

§  1299    (1015).     Appointment  of  appraisers  or  commissioners 
to  assess  benefits  and  damages. — There     is    some    dixersity    of 

Co.   V.    Los   Angeles,   33   Cal.    App.  Ijii.  &C.  K.  Co.,   In  re,  80  Hun  355. 

675,  166  Pac.  387;  Toluca  &c.  R.  Co.  30  N.  Y.  S.  131.     .Many  ca.^e.-^.  Iiow- 

V.   Haws,   194  111.  92,  62   N.   V..  312.  ever,  liold  that   all  the  eommis.^on- 

'^■'' Galbraith     v.     Litticch,     73     III.  ers    must   juin    in    the    deliberations 

209;  Beynon  v.  Brandywine  &c.  T.  although    a    majority    may    decide. 

L.  Co..  39  Ind.  129;  Virginia  R.  Co.  New   York.   In   re,  99  X.   Y.  569.  2 

V.  Lovejoy,  8  Nev.   100;  Griscmn   v.  X.     I'..    642,    34    Hun    441:    State    v. 

Gilmore,  16  N.  J.   b.  105;  Cruger  v.  hindlcy.  67  Wis.  80,  30  .\.  W.  224: 

Hudson  River  R.  Co..  12  N.  Y.  190:  .Smith  v.  Trenton   &c.   Co.,  17   .\.  .1. 

People    V.    Hynds,    30    N.    Y.    470:  L.  5:  Curry  v.  Jones,  4  Del.  Ch.  55<). 

Young  V.  Buckingham,  5  Ohio  485:  See    also     Chicago    &c.     R.    Co.    v. 

Moore  v.  Green  &c.  R.  Co.,  3  Phila.  Sanford.  23  'Slich.  418  (holding  that 

CPa.)    417.     Under    a    proper    con-  all  must  unite  in  the  verdict), 

struction    of    the     .Missouri    statute  •""  Serrell      v.      Oakland      Probate 

directing  the   appointment  of  three  Judge,  107  Mich.  234,  65  N.  W.  107, 

commissioners     to      appraise     land  distinguishing  Kress  v.   Hammond. 

taken  in  invitum,  the  report  of  the  92   Mich.   372,   52   X.   W.   728.     .\nd 

commissioners  is  not  rendered  nu-  there   maj-   l)e   a   waiver   of   the   re- 

gatory   by   the    fact   that   only    two  ciuirement   of   unaniminity.     Weber 

of   them   acted   and   signed   the   re-  v.  Detroit,  158  Mich.  149.  122  X.  W. 

port.     Such  a  report  is  sufficient  to  570. 

authorize    the    court     to     render     a  '■'■'  Hughes    v.    Lake    Erie    &c.    R. 

judgment    vesting    the    title    of    the  Co.,  21    Ind.   175;    Miller  v.   County 

land    in    the    company.     Quayle    v.  Commissioners,  119  Mass.  485. 

Missouri   &c.   R.   Co.,  63   Mo.  465;  •''s  St.  Louis  v.  Gleason,  93  Mo.  33. 

l,ouk  V.  Woods,  15  III.  256:  Brook-  8  S.  W.  348. 


900  PR()(KI>I   KK    l.\    APrKOl'Kl A'l'IOX    CASES  §1291) 

C'pinion  as  to  the  ])o\ver  of  a  court  to  appoint  a])])raisers,  com- 
missioners or  tlie  like,  to  assess  benefits  and  dama.^'es,  some  of 
the  autliorities  inclinint;'  to  the  view  that  the  power  of  a])point- 
nient  is  an  executive  and  not  a  judicial  function.''''  and  that  ap- 
1 'ointments  can  not  be  made  by  the  courts.  In  our  opinion  the 
])ower  to  apixiint  commissioners,  appraisers  or  the  like,  to  assess 
benetits  and  damai^es  is  judicial  and  may  be  exercised  by  the 
courts.  The  judicial  power  extends  Ijeyond  the  mere  trial  and 
(lecision  of  causes,  and  is  broad  enough  to  authorize  the  ai)point- 
ment  of  such  ministers  or  officers  as  may  be  necessary  to  enable 
a  cotu^t  to  effectively  exercise  its  functions.'*"  \\'e  doubt  whether 
]K)wer  to  api)oint  agents  or  officers  to  perform  duties  not  con- 
nected with  the  administration  of  the  law  b_\'  the  courts,  or  to 
act  in  matters  foreign  to  the  purpose  for  which  courts  are  or- 
gani/.ed  can  be  conferred  upon  the  judiciary,  but  we  think  that 
ti.e  assessment  of  benefits  and  damages  being  essentially  a  judi- 
cial matter  and  connected  with  the  administration  of  the  law  bv 
the  courts,  the  courts  may  be  empowered  to  appoint  api)raisers, 
commissioners  or  the  like  to  assess  benefits  and  damages.  The 
power  to  appoint  is  not,  however,  exclusively  judicial,  for  the 
authorities  affirm  the  right  of  the  legislature  itself  to  appoint  or 
to  confer  the  power  to  appoint  upon  judicial,  executive  or  ad- 
ministrative officers.*^  The  power  must  be  exercised  bv  the 
l:oard  or  tribunal  ujjon  which  the  power  is  conferred.*-     Broad 

->' Taylor  v.  Commonwealth.  3  J.  46  N.  E.  11,  Zl  L.  R.  A.  189;  Elliott 

J.   .Marsh   (Ky.)   401:  State  v.   Bar-  Roads  and  Streets   (3d  ed.),  §  316. 

hour,   53   Conn.   76,  22  Atl.  686,   55  •*!  State     v.     Commissioners,     28 

Am.  Rep.  65;  Achley's  Case.  4  Abb.  Kans.   431;    Morris   v.    Comptroller. 

Pr.    (X.    V.)    35.     In    Penniman    v.  54  X.  J.  L.  268,  23  Atl.  664;  Shoe- 

St.  Johnsbury,  54  \'t.  306,  it  is  held  maker   v.   United   States.    147   U.    S. 

not  to  exist  unless  given  by  statute.  282,  31  Sup.  Ct.  361,  7)1  L.  ed.  170; 

■*o  Striker  v.   Kelly,  2   Denio.    (N.  Elliott  Roads  and  Streets   (3d  ed.). 

Y.)    323;    Cooper.    In    re,  22    N.    Y.  §§    311.    317.     In    ^Mississippi    it    is 

()1\  State  V.  Noble,  118  Ind.  350.  360,  held  that  the  power  is  conferred  on 

21  N.  E.  244.  4  L.  R.  A.  101.  10  Am.  deputy  clerks.  Western  Union  Tel. 

St.    143.     See    also    ^'ail    v.    Morris  Co.    v.    Louisville    &c.    R.    Co..    107 

&c.  R.  Co.,  21   X.  J.  L.  189;  Greg-  :\liss.  626.  65  So.  650. 

ory  v.  Cleveland  &c.  R.  Co..  4  Ohio  *-  House    v.    Rochester,    15    Barb. 

St.    675:    Colorado    &c.    R.    Co.    v.  (X.  Y.)  517;  Menges  v.  .\lbany.  56 

Jones,  29  Fed.  193:  Terre  Haute  v.  N.  Y.  374. 
Evansvillc  &c.  R.  Co..  149  Ind.  174. 


§  1300  RAILROADS  !>10 

as  is  the  power  \vhich  the  adjudiicd  cases  accord  to  the  les^ishi- 
ture  tliere  is  this  important  Hmitation  upon  it,  namely,  the  tribu- 
nal must  be  an  impartial  one,  and  its  action  subject  to  judicial 
control  at  some  sta.^'e  of  the  procccdini^^s.'"  A\'hcre  there  is  pro- 
vision for  an  appeal  the  appointment  of  CDmmissioners  may  l)e 
authorized  to  be  made  by  members  of  a  public  corporation." 
While  the  rule  declared  by  the  authorities  is  that  the  legislature 
may  appoint  commissioners  or  appraisers  itself  or  may  vest  the 
power  of  appointment  in  ministerial  or  executive  officers,  the 
action  of  appraisers  and  commissioners  by  whomsoever  appoint- 
ed, must  be  under  judicial  control,  otherwise  the  fundamental 
principle  that  the  award  of  compensation  is  a  judicial  function 
would  be  violated.*^ 

§  1300  (1016).  Duty  to  appoint  appraisers  or  commissioners 
— Mandamus. — It  is  l)roadIy  asserted  in  some  of  the  cases  that 
where  a  proper  petition  is  presented,  and  proper  notice  is  given, 
the  appointment  of  commissioners  or  selection  of  a  jury  to  assess 
the  land-ow^ner's  damages  is  a  matter  of  right,  and  if  the  judge  or 
other  officer,  charged  with  the  ministerial  duty  of  ordering  a  jury 
or   appointing  c(jmmissioners,   refuses   to  act,   he   mav   be   com- 

4-'*  Hessler   v.    Drainage    Com.,    53  Cincinnati,  4  Ohio  St.  394;  State  v 

111.    105:    liradley   v.    Frankfort,    99  Crane,  36  N.  J.  L.  394;  Minneapolis 

Ind.  417;  Paul  v.  Detroit,  32  Mich.  v.  Wilkin,  30  Minn.   140,  14  N.  W. 

108;  Nashua,  Petition  of,  12  N.   11.  581. 

425;     Mitchell     v.     Holderners,     29  *''  Vanhorne  v.   Dorrancc,  2  Dall. 

N.  H.  523;  New  Boston,  Petition  of.  (U.   S.)   304,   1    L.   ed.  391;   Charles 

49  N.  IT.  328;  State  v.  Atkinson,  27  River  Bridge  v.  Warren  Bridge,  11 

N.  J..  L.  420;   Rhine  v.   McKinncy.  Pet.  (U.  S.)  420,  9  L.  ed.  773;  San 

53   Tex.   354;   Lumsdcn    v.    Mihvau-  Francisco  v.  Scott,  4  Cal.  114;  Cun- 

kee,  8  Wis.  485;   Powers  v.   Bears.  ningham   v.   Camphell,  33   Ga.  625: 

12  Wis.  213,  78  Am.  Dec.  733:  State  Pennsylvania    R.    Co.    v.    Baltimore 

V.  Fond  du  Lac,  42  Wis.  287.  Com-  R.    Co.,    60    Md.    263;    Langford    v 

pare  also  Thomas  v.  Boise  City,  25  County    Commissioners,     16     Minn. 

Idaho  522,  138  Pac.   1110.     But  see  375;     McMicken     v.     Cincinnati,     4 

P.ridgeport    v.    Giddings,    43    Conn.  Ohio  St.  394;   Kramer  v.   Cleveland 

304;    Johnston    v.     Rankin.     70     N.  &c.    R.    Co.,   5    Ohio   St.    140;    ante. 

Car.    550.  §  1245:   Elliott's   Roads  and   Streets 

**  Bass   V.   Fort  Wayne,    121    Ind  (3d   ed.),  §  309,  et  seq. 
389,    23    N.    E.    259:    McMicken    v. 


on  l'U(i(i:i>l"Ki;    IN    AI'I'KOI'KIATIOX   CASES  §1301 

jielk'd.  ])\  iiiaiulanuis,  to  do  so.**'  It  seems  to  us  that  there  is 
(lirficully  in  maintainini;"  this  doctrine  where  the  jjower  to  ap- 
]M)int  is  conft-rrcd  upon  a  court.  If  the  proceeding's  are  judicial 
and  the  duty  is  imposed  upon  a  court,  the  refusal  to  make  the  ap- 
pointment is,  as  we  are  inclined  to  believe,  an  error  to  be  re- 
viewed by  certiorari,  appeal  or  the  like,  and  not  upon  an  applica- 
tion for  mandamus.  Where,  however,  the  duty  is  imposed  upon 
administrative  officers,  their  performance  of  that  duty  may  be 
coerced  by  mandamus.  But  even  as  to  ministerial  officers  the 
rule  allowing'  a  mandamus  to  compel  the  performance  of  a  duty 
will  not  apply  if  the  duty  be  purely  a  discretionary  one. 

§  1301  (1017).  Qualifications  of  jurors — Appraisers  or  com- 
missioners.— The  fundamental  principle  that  no  one  can  be  a 
judge  in  his  own  case  requires  it  to  be  held  that  the  members  of 
the  tribunal  appointed  to  assess  benefits  and  damages  should  be 
disinterested.  This  principle  governs  although  the  statute  mav 
not  provide  that  the  members  of  the  tribunal  shall  not  be  in- 
terested, since  statutes  are  to  be  construed  in  connection  with 
other  statutes  and  the  general  principles  of  law.*"  Neither  mem- 
bers of  the  condemning  corporation  nor  its  agent,*^  nor  persons 

46  Western  U.  R.  Co.  v.  Dickson,  Dist.   v.    Phillips,    108    Cal.   306,    39 

30   Wis.    389;    Thirty-fourth    Street  Pac.     630,     41     Pac.     335.     Persons 

R.  Co.,  In  re,  102  N.  Y.  343,  7  N.  E.  owning   land    in    the    neighborhood 

172;    Illinois    Cent.    R.    Co.   v.   Rue-  are  not  disqualitied  from  acting  as 

ker.  14  111.  353;  Chicago  &c.  R.  Co.  viewers  where  their  land  does  not 

V.   Wilson,   17  111.    123.     See   South-  immediately     adjoin     the     railroad, 

em    &c.    R.   Co.,    In    re,    146   N.   Y.  Newbecker  v.  Susquehanna  R.  Co., 

352,  40  N.  E.  1000;  West  Jersey  &c.  1    Pears.    (Pa.)    57.     See  also  State 

R.    Co.    V.    Ocean    City    R.    Co.,    61  v.  North  Plainfield,  63  N.  J.  61,  42 

N.  J.   L.  506,  39  Atl.  1024.  Atl.  805;   Foot  v.   Stiles,   57   N.   Y. 

4"  Ante,     §     1299;     Douglass     v.  399;   Thompson    v.    Love,   42    Ohio 

Byrnes,  63  Fed.  16;  In  re  Roches-  St.   61.     But  in    general   the   owner 

ter,  208  N.  Y.  188,  101  N.  E.  875,  47  of  land  sought  to  be  condemned  is 

L.  R.  A.  (N.  S.)    151.  disqualified.     Bradley  v.  Frankfort. 

48  Powers  v.   Bears,   12  Wis.  213.  99  Ind.  417;  Wilson  v.  Burr  Oak,  87 

78  Am.   Dec.  733.     An   employe   of  Mich.    240,   49    N.    W.    572;    Krug's 

the    company   is    not   competent    to  Lake    Drainage    Dist.    v.    Jamison, 

serve    as    a   juror.     Central    R.    Co.  176    Mo.    557.    75    S.    W.    679:    Re 

v.  :\litchell,  63  Ga.  173.  But  sec  Rochester,  268  N.  Y.  188,  101  N.  F. 
Lower     Kings     River     Reclamation 


ij  1301  RAILROADS  912 

appointe<l  by  it  are  competent  to  serve  as  appraisers,  where  tlie 
other  party  is  not  also  represented.''''  In  accordance  with  the 
general  principle  stated  it  is  held  that  if  the  jury  is  selected  ex- 
clusively from  a  few  towns  in  the  country  whose  inhabitants 
are  deeply  interested  in  the  proposed  improvement,  a  challenge 
to  the  array  should  be  allowed. ^"^  One  whose  name  is  struck  off 
the  venire  in  choosing  a  struck  jury  is  incompetent  to  fill  a 
\acancy  in  such  jury."''     The  fact  that  a  commissioner  to  assess 

875,  47  L.  R.  A.  (N.  S.)  151.  I  cision  it  was  held  in  Tucker  v. 
Douglass  V.  Byrnes,  63  Fed.  16,  Paris  (Tex.  Civ.  App.),  99  S.  W. 
there  is  a  full  discussion  of  llu  1127.  that  a  statute  authorizing  a 
general  question  and  it  was  held  city  to  condemn  land  by  having  the 
that  a  person  who  accepts  a  re-  same  appraised  by  a  jury  taken 
tainer  as  an  attorney  for  one  of  fr<Hn  twelve  men  selected  by  the 
the  parties  is  disqualified.  The  city  marshal,  from  which  the  may- 
court  cited  Sacramento  &c.  Mining  or  was  entitled  to  strike  three  and 
Co.  V.  Showers,  6  Nev.  291;  Joiin-  the  owner  of  the  land  three,  the 
son  V.  Hobart,  45  Fed.  542;  Palmer  remainder  to  constitute  the  jury, 
V.  Utah  &c.  R.  Co.,  2  Idaho  290,  1.^  and  containing  no  provision  for  an 
Pac.  429;  Burke  v.  McDonald,  2  appeal  from  their  award,  was  un- 
Idaho  1022,  29  Pac.  98;  Dond  v.  constituti<jnal  as  authorizing  a  de- 
Guthrie,  13  111.  App.  653;  Bowler  v.  privation  of  property  without  duo 
Washington,   62    Maine  302;    Blake  process  of  law. 

V.      County      Commissioners,       114  ""J  Ilaslam   v.   Galena   &c.   R.   Co., 

Mass.    583:    Ensign    v.    Harney,    15  64  111.  353.     The  mere  fact  that  the 

Nebr.  330,  18  N.  W.  73,  48  Am.  Rep.  county    of    which    the    jur.-r    is    a 

344  and  note;   Patten's   Petition,   16  citizen  is  interested  in  the  suit  was 

N.   H.  283;   Peavy  v.  Wolfborough,  held    imt    to    render    him    incompe- 

^7  N.  H.  286;  Beacon  v.  Shreve,  22  tent    within    the    statutes    of    West 

N.  J.  L.176;  Phillipsburgh  Bank  \  \'irginia.      iSaltimore   &c.   R.   Co.   ^ 

Fulmer,  31   N.  J.  L.  53;  Bufifalo  &c.  I'ittsburgh   &c.    R.   Co.,   17   W.   Va. 

Co.,    In    re,    32    Hun    (N.    Y.)    289;  812.     See  also  Warner  v.  Gunnison, 

Pittsburgh  &c.  R.  Co.  v.  Porter,  32  2    Colo.    App.    430,    31     Pac.    23S: 

Ohio    St.    328:    McDaniels    v.    Mc-  Minneapolis    v.    Wilkins,    30    -Minn. 

Daniels,    40   Vt.   363,   94   Am.    Dec.  140,  14  N.  W.  581:  Illinois  Cent.  R. 

408.     See    also    Peirce    v.     Bangor,  Co.  v.   Swalm,  83   Miss.   631,  36  So. 

105    Maine   413.   74   Atl.    1039.     But  147. 

see     McDonnell     v.      Improvement  "'i  Detroit    &c.    R.    Co.,    In    re,    2 

Dist.,  97  Ark.  334,  133  S.  W.  1126:  Doug.  (Mich.)  367.  And  prior  serv- 

Crowlcy   v.    Gallatin    Co.,   14    .Mont.  ice  in  the  same  matter  will   usuall 

292.   36   Pac.   313.  disqualify.      Folinar    v.    lM)linar,    68 

4"  Rhine    V.    McKinney,    53    Tex.  Ala.    120;    Hester    v.    Chambers,    84 

354.      Citing  and  api)roving  this  de-  Mich.    562.   48    N.    W.    152;    State    v. 


913  PROCEDURE  IN  APPROPRIATION  CASES  §  1301 

damages  upon  the  condemnation  of  land  for  a  railroad  right  of 
Avay  is  a  stockholder  in  another  railroad  which  has  already  ac- 
quired its  right  of  way  does  not  make  him  incompetent.^-  A  cor- 
poration can  not  object  to  the  award  because  part  of  the  com- 
missioners were  its  own  stockholders,^^  but,  of  course,  the  ad- 
verse party  may  successfully  object  in  such  a  case.  The  general 
principle  is  well  illustrated  by  the  cases  which  hold  that  persons 
who  are  active  in  promoting  the  proposed  movement,  are  dis- 
qualified.'^* Stockholders  in  a  corporation  which  is  a  party  to 
condemnation  proceedings  are,  it  is  very  clear,  disqualified  from 
acting  as  appraisers,''"'  and  this  rule  is  generally  enforced  although 
the  statute  is  silent  on  the  subject  of  the  interest  of  appraisers.-"^** 

District  Ct.,  87  Minn.  268,  91  N.  W.  scribed  to   a   fund   in   aid   of  a   rail- 

1111.   Compare,  however,   Fulton  v.  way  is   not  disqualified  to   act  a~ 

Cummings,   132   Ind.   453,   30   N.   E.  commissioner     to    assess     damages 

949;    Miller    v.    Kramer,    154    Iowa  against      another      projected      road 

523,  134  N.  W.  538.  which   is   to   be   leased   to   the    first 

■'-  People    V.    First    Judge    &c.,    2  named  road. 

Hill     (N.    Y.)    398.      See    also    Re  ""''  Peninsular   R.   Co.  v.   Howard, 

Brooklyn   El.  R.  Co.,  32  App.  Div.  20    Mich.    18;    Rock    Island    &c.    R. 

221,  52  N.  Y.  S.  997.     But  as  here-  Co.   v.    Lynch,   23    111.    645;    Friend 

inafter  shown  a  stockholder  in   tlie  Appellant.  53  Maine  387.     The  fact 

condemning  company  would  not  be  that   one    has    subscribed   for   stock 

competent.  on   which   he  has  paid  nothing  and 

"'•■^  Strang  v.  Beloit  &c.  R.  Co..  16  is    in    default    does    not    disqualify 

Wis.   635.     In    Rock    Island    R.   Co.  him.     Chesapeake  &c.  Canal  Co.  v. 

V.    Lynch,   23    111.   645,    it    was    held  Binney,    4    Cranch    C.    C.    68.      In 

that    the    award   tif   commissioners.  Georgia  R.  Co.  v.  Hart,  60  Ga.  550, 

one   of   wliom   was   disqualified   but  it  was  held  that  a  stockholder's  son 

whose      disqualification      was      un-  was  disqualified  because  of  his  near 

known,    is    void    even   though    such  relationship  to  a  person  having  an 

commissioner    voted    with    the    mi-  interest, 

nority.  ^^  See  Giesy  v.  Cincinnati  &c.   R. 

5-i  Louisiana  &c.  R.  Co.  v.  Mose-  Co.,    4    Ohio    St.    308;    Donner    v. 

ley,  115  La.  757,  40  So.  37,  5  Ann.  Palmer,  23   Cal.  40;   Inge  v.  Police 

Cas.    920.     Such    a    disqualification.  Jury,    14   La.    Ann.    117;    Bryant   v. 

it    has    been    held,    can    not   be    re-  Glidden,    36    ISlaine    36:    People    v. 

moved     by    agreement    of    parties.  Michigan   &c.  R.   Co.,  3   Mich.  496: 

Michigan  &c.  R.  Co.  v.  Barnes,  40  Ames  v.  Lake  Superior  &c.  R.  Co., 

Mich.   383.     In    Detroit   &c.    Co.   v  21    Minn.  241;   Kansas   City  &c.   R. 

Crane.   50  Mich.   182,  15   N.  W.  73.  Co.     v.     Campbell,     62     Mo.     585; 

it  was  held  that  one  who  has   sul)-  Tliompson    v.    ConwHy,    53    N.    H. 


^1301 


RAILROADS 


914 


Jn  manv  oi  the  states  it  is  provided  that  the  ct)nimissioners  or 
iurors  to  assess  damages  upon  the  condemnation  of  land  shall  be 
disinterested,-'''  and  under  such  statutes  any  material  interest, 
however  slight,  must,  as  we  suppose.  dis(|ualil\ .  In  some  juris- 
dictions the  damages  are  assessed  by  the  commissioners,  oi  whom 
one  may  be  designated  by  the  plaintiff  and  one  by  the  defend- 
ant.''- We  think  there  is  reason  to  doubt  whether  a  ])arty  can 
be  compelled  to  submit  his  rights  to  the  decision  of  a  tribunal 
thus  constituted,  but,  of  course,  he  may  do  so  by  consent,  and 
ac(|uiescence  is  regarded  as  a  tacit  agreement.  In  many  states 
special  commissioners  to  assess  damages  upon  condemnation 
must  be  freeholders/'^'  though  such  a  requirement  is  not  usually 
m.ade  as  to  jurors,  whether  summoned  to  assess  the  damages  in 
the   hrst   instance,   or   on    appeal   from    the   commissioners,   and 


622:  P.crnet  v.  Camden  &:c.  R.  Co., 
14  X  J.  b.  145;  Pennsylvania  R. 
Co.  V.  birst  German  Lutheran 
Congregation,  53  Pa.  St.  445: 
Forbes  V.  Howard.  4  R.  I.  364; 
Buffalo  Bayou  &c.  R.  Co.  v.  Ferris. 
26  Tex.  588;  Powers  v.  Bears,  12 
Wis.  214.  One  may  have  a  claim 
against  the  company'  and  yet  not 
have  such  an  interest  as  will  pre- 
vent him  from  serving  as  a  com- 
missioner to  assess  damages.  Xew- 
becker  v.  Susquehannah  R.  Co..  1 
Pearson    (Pa.)    57. 

^"  There  is  considerable  conflict 
in  the  decisions  as  to  what  rela- 
tionship, if  any,  will  disqualify. 
owing  largely  to  differing  statutes. 
For  relationship  disqualifying,  see: 
?>cck  V.  Biggers.  66  Ark.  292.  50 
S.  W.  514;  Bradley  v.  Frankfort, 
99  Tnd.  417;  Taylor  v.  \\'orcester 
County,  105  Mass.  225;  Fyon  v. 
Haines.  73  ]\Iaine  56.  For  rela- 
tionship held  not  to  disqualify  see: 
North  Arkansas  &c.  R.  Co.  v. 
Cole.  71  Ark.  .38.  40  .S.  W.  312: 
Louisiana    Rv.    Co.   v.    Movere,    116 


La.  997,  41  So.  236;  Chase  v.  Rut- 
land, 47  Vt.  393. 

ss  For  the  construction  of  a  stat- 
ute providing  that  the  court  should 
appoint  five  commissioners  from  a 
list  of  twelve  names,  six  of  which 
were  furnished  by  the  company  and 
six  by  the  land-owner,  see  Troy  &c. 
R.  Co.  V.  Cleveland,  6  How.  Pr. 
(N.  Y.)  238. 

■''•'  In  Mississippi  it  was  held  thai 
one  holding  lands  under  a  title 
bond  conditioned  for  the  convey- 
ance to  him  of  a'  fee-simple  upon 
the  payment  of  the  purchase- 
money,  was  a  freeholder  within 
such  a  statute.  New  Orleans  &c. 
R.  Co.  V.  Hemphill.  35  Miss.  17. 
It  is  sufficient  if  the  commission- 
ers become  freeholders  at  any  time 
before  their  appointment.  New 
York  &c.  R.  Co.  v.  Townscnd,  36 
Mun  (X.  Y.)  630.  An  heir  of  one 
who,  by  will  directed  his  land  to 
be  sold,  was  held  to  be  a  free- 
holder. People  V.  Scott.  8  Hun 
(N.  Y.)  566. 


915  PROCEDURE  IN  APPROPRIATION  CASES  §  1302 

where  such  quaHiications  are  prescribed,  the  commissioners  or 
jurors  must  possess  them,  otherwise  an  objection  to  their  com- 
petency, opportunity  made,  will  prevail.*^'' 

§  1302.  Waiver  of  objections  to  lack  of  qualification. — 01)jec- 
tions  to  the  competency  of  commissioners  or  jurors  may  be 
waived  by  agreement,"^  or  otherw'ise.  It  is  generally  held  that 
taking  part  in  an  inquest  by  interested  persons  with  knowledge 
of  their  interest  is  such  a  waiver.''-  To  prevent  a  waiver  the  ob- 
jection should  be  taken  at  the  earliest  opportunity.^^  But  if 
there  is  excusable  ignorance  of  the  disqualification  the  general 
rule  stated  will  not  prevail."* 

§  1303  (1018).  Oath  must  be  taken  by  jurors  or  commission- 
ers.— The  commissioners  or  jurors  should  in  all  cases  be  sworn 
as  required  by  the  statute,  and  some  of  the  cases  hold  that  a  fail- 
ure on  their  part  to  take  the  prescribed  oath  wall  render  all  their 
proceedings  invalid.''"'     It  seems  to  us  that  the  failure  to  take  the 

60  See  Adams  v.  San  Angelo  560;  Wells  Co.  Road,  Matter  of,  7 
Waterworks  Co.  (Tex.  Civ.  App.),  Ohio  St.  16;  Emanuel  Hospital  v. 
25  S.  W.  165,  26  S.  W\  1104.  Metropolitan  R.  Co.,  19  L.  T.  N.  S. 

61  People  v.  Taylor,  34  Barb.  (N.  692. 

V.)    481.     See    New    York    &c.    R.  ^4  Giles    v.    Caines,   3    Caines    (N. 

Co.,    Matter    of,    35    Hun    (N.    Y.)  Y.)  107:  In  re  Rochester,  208  N.  Y. 

575.     But   compare     Michigan     Air  188,    101    N.    E.    875,    47    L.    R.    A. 

Line  R.  Co.  v.  Barnes,  40  Mich.  383.  (N.  S.)   151;  Newberry  v.  Furnival, 

62  Jameson  v.  Androscoggin  R.  56  N.  Y.  638;  Wolford  v.  Oakley,  1 
Co.,  52  Maine  412;  Walker  v.  Bos-  Sheldon  (N.  Y.),  261;  Elliott  Ap- 
ton  &c.  R.  Co.,  3  Cush.  (Mass.)'l;  pellate  Procedure,  §§  676,  691. 
Fitchburg  &c.  R.  Co.  v.  Boston  Where  the  act  which  disqualifies, 
&c.  R.  Co.,  3  Cush.  (Mass.)  58:  as  for  instance,  the  acceptance  of 
Mansfield  &c.  R.  Co.  v.  Clark,  23  a  retainer,  is  unknown  to  the  ad- 
.Mich.  519:  Smith  v.  School  District.  verse  party  the  failure  to  object  is 
40  Mich.    143:    Cnnvell   v.    London-  not  a  waiver. 

derr\-,  63  N.  H.  42.     See  also  Brad-  ^5  k  e  e  n  a  n    v.     Commissioners' 

ley   V.    Frankfort,    99    Ind.   417;    In  Court,  26  Ala.  568;  Frith  v.  Justices, 

re.  New  York  &c.   R.   Co.,  35   Hun  30    Ga.    723;    Harper    v.    Lexington 

(N.  Y.)   575.  &c.    R.    Co.,    2    Dana     (Ky.)    227; 

63  Astor  v.  New  York.  62  N.  Y.  Bowler  v.  Perrin,  Drain  Commis- 
580;  Hilltown  Road,  18  Pa.  St.  233;  sioner,  47  Mich.  154.  10  N.  W.  180: 
Burnham    v.    GofTstown,    50    N.    H.  State  v.  Bayonne.  35  N.  J.   L.  476: 


^  \:\():i  KAii.KOADs  iHG 


( ■; 


.■ath  ouiiht  not  to  be  av.-iilablc  in  a  collateral  attack.  Init  >houlil 
be  deemed  a  mere  irre.^ularity.  not  renderin.i;-  the  ])r()ceedini>:s  ab- 
solutely void.""  The  rtile  is  very  strictly  enforced  in  some  of  the 
courts,  and  it  is  held  that  the  record  must  show  affirmatively  that 
the  jurors  or  commissioners  were  duly  >\vorn."'  lUit  is  uenerrdly 
held  that  a  recital  in  the  record  that  the  commissioners  were 
sworn  accordin.^-  to  law  is  sufficient  to  show  that  they  took  the 
])roper  oath."^  and  this  certainly  is  the  sensible  doctrine.  A  mere 
irres4-ularity  in  the  form  of  the  oath  taken  will  not  ])r  cause  for 
settinij  aside  the  i)roceediniiS  where  it  is  ai)i)arent  that  the  proper 
matters  were  before  the  jury  for  consideration,  and  that  the  ob- 
iectinu"  partv  could  have  suffered  no  damag-es  from  the  irre,^-ular- 
itv.'"      I'roceediuL;-    to    a    hearing    without    objection    and    with 

People  V.  Conner.  46  Barb.  (N.  Y.)  Cnrt,  18  .\la.  482.  WIktc  the  sole 
333;  Adams  v.  San  Angelo  Water-  record  of  the  oath  is  contained  in 
works  Co.  (Tex.  Civ.  App.).  25  S.W.  the  record  certified  by  the  commis- 
165,  26  S.  W.  1104:  P.ohlman  v.  sioners  themselves,  the  oath  which 
Green  Bay  &c.  R.  Co..  40  Wis.  157.  they  took  must  be  set  forth  that  it 
See  also  Thomas  v.  I'.oise  City,  25  may  appear  that  the  statute  was 
Idaho  522,  138  Pac.  1110.  Omis-  complied  with.  State  v.  Van 
sion  of  the  word  "faithfully"  from  Geison.  15  X.  J.  L.  339:  In  re  Cam- 
prescribed  form  <if  the  i>ath  held  bria  Street.  75  Pa.  St.  357.  The  re- 
sufficient  to  invalidate  the  proceed-  turn  of  the  sheriff  that  the  jury 
int?s.  Gilroy.  In  re.  85  Hun  42-1.  were  duly  impanelled  and  sworn  ac- 
32  N.  Y.  S.  891.  but  sec  Cambria  cording  to  law.  in  discharge  their 
St..  In  re.  75   I'a.  St.  357.  duties,   "will   be   construed   to   be   a 

o'">  Muling  V.  Kaw  \'alley  R.  S:c.  statement  that  the  jury  were  prop- 
Co..  130  U.  S.  559,  9  Sup.  Ct.  603,  erly  sworn,  and  not  a  recital  of  the 
32  L.  ed.  1045,  citing  Commission-  substance  of  the  oath  administer- 
ers  V.  Espen,  12  Kans.  531;  Venard  ed."  New  Orleans  &c.  R.  Co.  v. 
V.  Cross,  8  Kans.  248:  Cooper  v.  Hemphill.  35  Miss.  17. 
Reynolds,  10  Wall.  (U.  S.)  308,  19  6o  Grafton  i^c.  R.  Co.  v  |-oreman, 
L.  ed.  931;  Voorhees  v.  Jackson.  10  24  W.  Va.  662.  But  see  Wilkinson 
Pet.  (U.  S.)  449.  9  b.  ed.  490.  v.  Trenton.  35  N.  J.  b.  485:  Gilroy. 

67  Virginia    R.    Co.   v.    Lovejoy,   8  In  re.  85   Hun  424.  ?,2  X.  ^',  S.  891. 

Nev.    100.  -^ii   ":i'li   before  one  not   authorized 

88  T^yon  V.  Green   P.ay  itc.  R.  Co..  to    administer    it    is    ineffectual    and 

42  Wis.   538;    Hannibal    &c.    R.    Co.  has    been    held    to    render    the    pro- 

V.    Morton,   27   Mo.   317;    New    Or-  ceeding   void    where    there    was    no 

leans    &c.    R.    Co.    v.    Hemphill,    35  appeal.     Thomas   v.   I'.oise   City.   25 

Miss.   17;   Road   &c..   In   re.  90  Pa.  Idaho  522.   138   Pac.  1110.     I'.ut  see 

St.    190:    T.ong    v.    Commissioner's  Woolsey  v.   Hamilton.  32  I  <  iwa  130. 


917 


PKOCKDIKE    IK   Ain^ROPKIATION    CASES 


§  1304 


knowledge  of  an  omission  to  take  the  oath  or  of  an  irrci^^uhirit}' 
in  the  manner  of  taking;  it,"°  or  taking  an  appeal  to  a  court  in 
whiclT  the  ])rocee(linms  are  tried  de  novo  amounts  to  a  waiver  of 
such  defects.'' 

§  1304  (1019).  Notice — General  doctrine. — The  authorities 
w  ilh  N'cry  hltle  contiicl  aiVirm  that  notice  is  essential  in  appropria- 
tion proceedings."-     There  is,  however,  a  conflict  upon  the  (|ues- 


■"  Rockford  &c.  R.  Co.  v.  McKiii- 
ley,  64  111.  338.  Parties  who  were  be- 
fore the  court  will  be  presumed  to 
h;ne  nutioe  nf  omissions  and  ir- 
n  the  i)ri)ceedings. 
Count\'     Ciimrs.,     63 


Clark.      9      Verg. 


regularities 
Raymond     \ 
Elaine   110. 

'1  Patton 
(Tenn.)  268. 

"-  Kennard  v.  Louisiana,  92  U.  S. 
480,  23  L.  ed.  478;  Windsor  v.  Mc- 
Veigh, 93  U.  S.  274,  23  L.  ed.  914; 
United  States  v.  Jones,  109  U.  S. 
513,  3  Sup.  Ct.  346,  27  L.  ed.  1015; 
Wulzen  V.  Board  of  Supervisors, 
101  Cal.  15,  40  Am.  St.  17  and  note: 
Brown  v.  Denver,  7  Colo.  305,  3 
Pac.  455;  Thomas  v.  Boise  City,  25 
Idaho  522,  138  Pac.  1110;  Campbell 
V.  Campbell,  63  111.  462;  Garvin  v. 
Daussman,  114  Ind.  429,  16  N.  E. 
826,  5  Am.  St.  637;  Kuntz  v.  Sump- 
tion. 117  Ind.  1,  19  N.  E.  474,  2  L. 
R.  A.  655  and  note;  Kansas  City 
&c.  R.  Co.  V.  Fisher,  53  Kans.  512, 
36  Pac.  1004;  Leavitt  v.  Eastman, 
77  Maine  117;  Whiteford  Township 
V.  Probate  Judge,  53  Mich.  130,  18 
N.  W.  593;  St.  Paul  v.  Nickl,  42 
Minn.  262,  44  N.  W.  59;  Knoblauch 
V.  Minneapolis,  56  Minn.  321.  57 
N.  W.  928;  Williams  v.  Monroe, 
125  Mo.  574,  28  S.  W.  853:  Kearney 
V.  Baliantine,  54  N.  J.  L.  194,  23 
Atl.  821;  Greenwich  &c.  R.  Co.  v. 
Greenwich  &c.  R.  Co.,  75  App.  Div. 


220,  78  N.  Y.  S.  24:  Happy  v. 
Mpsher,  48  X.  Y.  313;  Stuart  v. 
i'almer.  74  X.  Y.  183.  30  Am.  Rep. 
28^):  People  v.  OT.rien.  Ill  N.  Y. 
1.  18  N.  E.  692,  2  L.  R.  A.  255,  7 
Am.  St.  684  and  note;  People  v. 
Gilon,  121  N.  Y.  551,  24  N.  E.  944; 
Baltimore  &c.  R.  Co.  v.  Pittsburgh 
&c.  R.  Co..  17  W.  Va.  812;  Rowan 
V.  State,  30  Wis.  129,  11  Am.  Rep. 
559.  See  generally  Baltimore  &c. 
R.  Co.  V.  Pittsburgh  &c.  R.  Co.,  17 
W.  Va.  812;  Chesapeake  &c.  Canal 
Co.  V.  Union  Bank,  4  Cranch  C.  C. 
75;  Burns  v.  Alultnomah  R.  Co.,  8 
Sawyer  (U.  S.)  543;  Union  Pac. 
R.  Co.  V.  Leavenworth  &c.  R.  Co., 
29  Fed.  728;  Mulligan  v.  Smith,  59 
Cal.  206;  Chicago  &c.  R.  Co.  v. 
Smith,  78  111.  96;  Tracy  v.  Eliza- 
bethtown  &c.  R.  Co.,  80  Ky.  259; 
Atlantic  R.  Co.  v.  Cumberland 
County  Comrs.,  51  Alaine  36;  State 
v.  Reed,  38  N.  H.  59;  Gamble  v. 
:\IcCrady,  75  X.  Car.  509;  Carolina 
&c.  R.  Co.  V.  Penncarden  &c.  Co., 
132  X.  Car.  644,  44  S.  E.  358;  Zim- 
merman V.  Canfield,  42  Ohio  St. 
463:  Reitenbaugh  v.  Chester  Valley 
R.  Co.,  21  Pa.  St.  100;  Road  &c..  In 
re,  109  Pa.  St.  118;  Thetford  v. 
Kilburn,  36  Vt.  179;  Lynch  v.  Rut- 
land, 66  Vt.  570,  29  Atl.  1015;  Wal- 
bridge  V.  Cabot,  67  Vt.  114,  30  Atl. 
805:  State  v.  l-'ond  du  Lac,  42  Wis, 
287. 


ij  VAOA 


RAILROADS 


918 


tion  ^\•hethe^  the  statute  authorizing  the  proceedings  must  pro- 
vide for  notice.     It  is  held  by  many  of  the  courts  that,  although 
notice  is  indispensable,  it  is  not  essential  to  the  validity  of  the 
statute  that  it  should  provide  for  notice  to  the  property  owner," 
it  notice  is,  in  fact,  given.     Other  cases  hold  a  different  doctrine 
affirming  that  a  statute  providing  for  the  seizure  of  property  is 
not  valid  unless  it  also  provides  for  notice.'*     In  our  opinion  a 
statute  which  authorizes  the  seizure  of  property,  but  docs  not 
prcscrilx'  what  notice  shall  be  given  violates  fundamental  prin- 
ciples and  should  be  regarded  as  void.     It  seems  to  us  that  a 
statute  which  authorizes  the  exercise  of  the  extraordinary  power 
of  seizing  private  property  should  prescril)e  what  the  notice  shall 
be  insomuch  as  such  a  statute  should  be  complete  in  itself  in  so 
far  as  regards  the  fundamental  elements  of  the  procedure.     It 
ought  not  to  be  left  to  courts  to  supply  such  an  essential  part  of 
the  procedure  as  notice,  nor  ought  such  a  question  to  be  left  in 
such  doubt  that  it  can  only  be  solved  by  construction.     If  notice 
is  not  provided  for  by  the  legislature  the  omission  can  only  be 
supplied  by  judicial  legislation,  for  a  right  to  seize  private  prop- 
erty can  only  be  given  by  express  statutory  enactment  and  if  the 
courts  supply  what  is  omitted  in  such  a  statute  they  act  as  legis- 
l;;tors.     It  can  not  l)e  justly  said  that  the  omission  can  l)e  sup- 
plied by  the  aid  of  the  rules  of  the  common  law  since  the  right 
to  appropriate  property  depends  entirely  upon  statute  and  not 


73  Paulsen  v.  Portland,   149  U.   S. 
30,  13  Sup.  Ct.  750,  37  L.  cd.  637: 
Wilson  V.  Baltimore  &c.  R.   Co.,  5 
Del.   Ch.    524;    Peoria     &c.     Co.    v. 
Warner,  61  111.  52;  Tracy  v.  Eliza- 
bethtown  &c.  Co.,  80  Ky.  259;  State 
V.    Jersey    City,   24    N.    J.    L.    662; 
State  V.  Trenton,  36  N.  J.   L.  499; 
Sullivan    V.   Cline,   33   Ore.   270.    54 
Pac.    156.     These    authorities    gen- 
erally proceed  upon  the  theory  that 
a  provision   for  notice   may  be   im- 
plied and  that  if  it  is  given  the  fail- 
ure  to   expressly   provide   for    it   in 
the  statute  will  not  render  the  pro- 
ceedings void. 


74  Elliott  Roads  and  Streets  (3d 
cd.),  §  222;  Kuntz  v.  Sumption,  117 
Ind.  1,  19  N.  E.  474,  2  L.  R.  A. 
655  and  note;  State  v.  Fond  du  Lac, 
42  Wis.  287;  Seifert  v.  Brooks,  34 
Wis.  443.  See  Whiteford  Town- 
ship v.  Probate  Judge,  53  Mich. 
130,  18  N.  W.  593.  Dissenting 
opinions  of  Cooley,  C.  J.,  Sher- 
wood, J.,  and  Campbell,  J.,  in 
Whiteford  Twp.  v.  Probate  Judge. 
5,^  Mich.  130;  Quaere  in  People  v. 
Richards.  38  Mich.  214.  Dissenting 
opinion  of  Bartley,  J.,  in  Kramer  v. 
Cleveland  &c.  R.  Co.,  5  Ohio  St. 
140,    165;    Savannah    &c.    R.    Co.   v. 


919 


PROCEDURE  IN  APPROPRIATION  CASES 


§1304 


upon  the  common  law.  If  the  right  to  seize  property  is  entirely 
statutory  then,  as  it  seems  to  us,  the  notice  must  be  provided  lor 
l.v  the  statute,  since  a  notice  not  provided  for  by  statute  is  not 
]n-ovide(l  iov  by  law,  and  notice  not  provided  for  by  law  is  no 
notice  at  all.""'  While  it  is  well  established  that  notice  is  essen- 
tial yet  it  is  g-enerally  held  that  it  is  competent  for  the  les-islature 
t'>  prescribe  what  the  notice  shall  i)e.'''  The  legislature  may  pro- 
vide for  constructive  or  personal  notice,"  and  if  the  notice,  no 
matter  whether  personal  or  constructive,  be  not  palpably  and 
nnquestioiia[)ly  unreasonalde  it  will  be  sufiicient.     Constructive 


Mayor,  90  Ga.  680,  23  S.  E.  847; 
(latch  v.  Des  Aloines,  63  Iowa  718, 
18  N.  W.  310;  State  v.  .AlcGuirc. 
109  Minn.  88,  122  N.  W.  1120: 
Stuart  v.  Palmer,  74  N.  Y.  183,  30 
Am.  Rep.  289;  Board  of  Education 
V.  Aldredge,  13  Okla.  205,  73  Pac. 
1104;  Sterritt  v.  Young,  14  Wyo. 
146,  82  Pac.  946. 

"3  Harmon  v.  Birchard,  8  Blkf. 
(Ind.)  418;  Terre  Haute  &c.  R.  Co. 
v.  Baker,  122  Ind.  433,  441,  24  N.  E. 
83;  Scudder  v.  Jones,  134  Ind.  547, 
551,  32  N.  E.  221;  Norvell  v.  Porter, 
62  Mo.  309;  Osborne  v.  Schutt,  67 
Mo.  712;  Board  of  Education  of 
Stillwater  v.  Aldredge,  13  Okla.  205, 
73  Pac.  1104;  Sterritt  v.  Young,  14 
Wyo.  146,  82.  Pac.  946,  4  L.  R.  A. 
(N.  S.)  169.  See  also  Shippen 
Bros.  Lumber  Co.  v.  Elliott,  134 
Ga.  699,  68  S.  E.  509.  Some  of  the 
cases  hold  that  provision  for  notice 
may  be  implied.  Branson  v.  Gee, 
25  Ore.  462,  36  Pac.  527,  24  L.  R.  A. 
355;  Ulman  v.  Baltimore,  72  Md. 
587,  20  Atl.  141,  21  Atl.  709,  11  L. 
R.  A.  224.  See  generally  Paulsen 
V.  Portland,  16  Ore.  450,  19  Pac. 
450,  1  I..  R.  A.  673. 

"6  :\IcIntosh  v.  Pittsburgli.  112 
I'ed.  705;  Mason  v.  Messenger,  17 
Iowa  261;  Walker  v.  Boston  &c.  R. 


Co.,  3  Cusii.  (Mass.)  1;  Salem  v. 
Juistern  R.  Co.,  98  Mass.  431,  96 
Am.  Dec.  650;  Nishnabotna  Drain- 
age Dist.  v.  Campbell,  154  JMo.  151, 
55  S.  W.  276;  Middletown,  .Alatter 
of,  82  N.  Y.  196;  Elliott  Roads  and 
Streets  (3d  ed.),  §  223. 

"Harvey  v.  Tyler,  2  Wall.  (U. 
S.)  328,  17  L.  ed.  871;  Secombe  v. 
Railroad  Co.,  23  Wall.  (U.  S.)  108, 
23  L.  ed.  67;  Pennoyer  v.  Neff,  95 
U.  S.  714,  743,  24  L.  ed.  575;  Huling 
v.  Kaw  Valley  R.  &c.  Co.,  130  U.  S. 
559,  9  Sup.  Ct.  603,  32  L.  ed.  1045: 
Lent  V.  Tillson,  140  U.  S.  316,  11 
Sup.  Ct.  825,  35  L.  ed.  419;  Wilson 
V.  Hathaway,  42  Iowa  173;  Mis- 
souri &c.  Co.  V.  Shepard,  9  Kans. 
647;  Wilkin  v.  First  Division  of 
St.  Paul  &c.  R.  Co.,  16  Minn.  271; 
Weir  V.  St.  Paul  &c.  Co.,  18  Minn. 
155;  New  Orleans  &c.  Co.  v. 
Hemphill,  35  Miss.  17;  Polly  v. 
Saratoga  &c.  Co.,  9  Barb.  (N.  Y.) 
449;  Starbuck  v.  Murray,  5  Wend, 
(N.  Y.)  148.  21  Am.  Dec.  172: 
Owners  v.  Mayor,  15  Wend.  (N. 
Y.)  374:  United  States  &c.  Co.  v. 
United  States  &c.  Co.,  18  N.  Y.  199; 
Cupp  v.  Commissioners.  19  Ohio 
St.  173.  See  also  Dyer  v.  Balti- 
more, 140  Fed.  880. 


130;') 


UAILUOADS 


920 


notice  siitisl'ics  the  constitutional  provision  icciuirini^-  <hu'  process 
cif  law."''  The  weig'ht  of  authority  is  that  the  land-owner  should 
have  notice  of  the  time  when  the  a])plication  for  the  a])pointnient 
((f  commissioners  or  appraisers  or  for  the  callin.c;'  of  a  special 
jury  to  assess  damaiies  will  he  presented  to  the  court,"''  in  order 
tiiat  he  may  see  that  proper  persons  only  are  selected  to  make 
the  appraisement,  or  may  resist  the  application,  if  it  is  insufficient 
either  in  form  or  substance.**" 

§  1305  (1020).  Notice — Requisites  of. — As  notice  is  required 
in  order  to  satisfy  the  provisions  of  the  constitution  requirins^" 
chie  process  of  law.  it  must  be  a  reasonable  notice.     The  suljject 


"s  Hilling  V.  Kaw  Valley  R.  &c. 
Co.,  130  U.  S.  559,  9  Sup.  Ct.  603, 
32  L.  ed.  1045;  Hagar  v.  Reclama- 
tion Dist.,  Ill  U.  S.  701,  4  Sup.  Ct. 
663,  28  L.  ed.  569;  McMillen  v.  An- 
derson, 95  U.  S.  37,  24  L.  ed.  335; 
Davidson  v.  New  Orleans,  96  U.  S. 
97,  24  L.  ed.  616;  Mississippi  &c. 
Boom  Co.  V.  Patterson,  98  U.  S. 
403,  406,  25  L.  ed.  206;  Kuschke  v. 
St.  Paul,  45  Minn.  225,  47  N.  W. 
786.  See  also  St.  Paul  &c.  R.  Co. 
V.  Minneapolis,  35  Minn.  141,  27 
N.  W.  500;  Winnebago  &c.  Co.  v. 
Wisconsin  Midland  R.  Co.,  81  Wis. 
389,  51  N.  W.  576;  Wight  v.  David- 
son, 181  U.  S.  371,  21  Sup.  Ct.  616, 
45  L.  ed.  900. 

'^^  In  some  states,  notice  of  the 
formation  of  a  tribunal  for  the  as- 
sessment of  damages  is  not  neces- 
sary, but  notice  of  the  hearing  be- 
fore such  tribunal  is  sufficient. 
Zack  V.  Pennsylvania  R.  Co.,  25 
Pa.  St.  394;  Long  Island  R.  Co.  v. 
Pennctt.  10  Hun  (N.  Y.)  91;  Mid- 
dletown.  Matter  of,  82  N.  Y.  196; 
Hunter  v.  Matthews,  1  Rob.  (Va.) 
468;  Weir  v.  St.  Paul  &c.  R.  Co.. 
18      Minn.      155;      Chesapeake      &c. 


Canal  Co.  v.  Union  Bank,  4  Cranch 
( C.  C.)  75.  See  also  Bemis  v. 
Guirl  Drainage  Co.,  182  Ind.  36,  105 
N.  E.  496. 

^•^  Peoria  &c.  R.  Co.  v.  Warner, 
61  HI.  52;  Tracy  v.  Elizabethtown 
&c.  R.  Co.,  80  Ky.  259;  Central 
Turnpike  Corp.,  7  Pick.  (Mass.)  13; 
Langford  v.  County  Conirs.,  16 
Minn.  375;  Gamble  v.  McCrady,  75 
N.  Car.  509;  Baltimore  &c.  R.  Co. 
V.  Pittsburgh  &c.  R.  Co.,  17  W. 
Va.  812;  State  v.  Fond  du  Lac.  42 
Wis.  287.  See  also  Abney  v.  Clark, 
87  Iowa  727,  55  N.  W.  6;  Dixon  v. 
Baltimore  &c,  R.  Co.,  1  Mackey 
(D.  C.)  78;  Anderson  v.  St.  Louis, 
47  Mo.  479;  Union  Pac.  R.  Co.  v. 
Leavenworth  &c.  R.  Co.,  29  Fed. 
728.  In  Sterritt  v.  Young,  14  Wyo. 
146,  82  Pac.  946,  4  L.  R.  A.  (N.  S.) 
169,  it  is  held  that  the  statute  must 
provide  for  notice  of  the  time  fixed 
for  hearing  on  the  question  of  dam- 
ages as  well  as  for  appointment  of 
appraisers.  I'ut  in  St.  Toseph  v. 
Geiwitz,  148  Mo.  210,  49  S.  W.  1000 
it  is  held  that  the  land-owner  must 
take  cognizance  himself  of  all  pro- 
ceedings after  service  of  summons. 


921 


PROCEDITRE   IN    APPROPRIATION    CASES 


§1305 


is,  as  we  have  said,  so  lari^ely  a  le.^-islative  one  that  it  is  compe- 
tent for  the  legislature  to  prescribe  the  form,  and,  within  limits, 
the  substance  of  the  notice.  There  are  cases  holdings  that  where 
the  land-owner  is  a  resident  the  notice  must  be  personal,  but  the 
great  Aveig-ht  of  authority  is  that  the  legislature  may  provide  for 
notice  by  publication  or  by  posting  only,*'^  and  need  not  even 
require  it  to  be  addressed  to  the  owners  by  name ;  but  may  simply 
require  it  to  describe  the  land,  to  indicate  the  nature  of  the  pro- 
ceeding, and  to  specify  the  time  when,  and  the  place  where,  the 
parties  interested  must  appear  to  protect  their  rights.®-  A  fail- 
ure to  comply  with  the  requirements  of  the  statute  as  to  notice 
will,  unless  waived  l)y  appearance  or  otherwise,  render  all  sub- 
sequent proceedings  erroneous,  and  they  may  be  arrested  or  set 
aside  upon  motion. ^^  The  notice  must  be  definite  as  to  the  time 
and  place  where  the  proceeding  will  be  had,  and  notice  of  a  ])ro- 
ceeding  to  be  had  in  a  certain  village  which  covers  two  square 


SI  Lent  V.  Tillson,  11  Cal.  404,  14 
Pac.  71;  Baltimore  &c.  R.  Co.  v. 
North,  103  Ind.  486,  3  N.  E.  144; 
Indianapolis  &c.  R.  Co.  v.  State, 
105  Ind.  Zl,  4  N.  E.  316;  Wilson  v. 
Hathaway,  42  Iowa  173;  Missouri 
River  &c.  R.  Co.  v.  Shepard,  9 
Kans.  647;  Harper  v.  Lexington 
&c.  R.  Co.,  2  Dana  (Ky.)  227; 
State  V.  Beeman,  35  IMaine  242: 
Alethodist  P.  Church  v.  Baltimore, 
6  Gill.  (Md.)  391;  Hildreth  v.  Low- 
ell, 11  Gray  (Mass.),  345;  People  v. 
Richards,  38  Mich.  214;  St.  Paul 
&c.  R.  Co.  v.  Minneapolis,  35  Minn. 
141.  27  N.  W.  500;  State  v.  Trenton, 
Z()  N.  J.  L.  499;  Polly  v.  Saratoga 
&c.  R.  Co.,  9  Barb.  (N.  Y.)  449; 
Application  of  Village  of  Middle- 
town,  82  N.  Y.  196;  Cupp  v.  Com- 
missioners, 19  Ohio  St.  173;  Zim- 
merman V.  Canfield,  42  Oliio  St. 
463;  Road  &c.,  In  re.  114  Pa.  St. 
627,  7  Atl.  765;  Baltimore  &c.  R. 
Co.  V.  Pittsburg  &c.  R.  Co.,  21  W. 


Va.   812;   ante,  §   1304. 

S2  Mclntyre  v.  Marine,  93  Ind. 
193;  Indianapolis  &c.  Road  Co.  v. 
State,  105  Ind.  2>1 ,  4  N.  E.  316;  Mc- 
Micken  v.  Cincinnati,  4  Ohio  St. 
394.  Cases  in  preceding  note.  But 
see  Ellsworth  v.  Chicago  &c.  R. 
Co.,  91  Iowa  386,  59  N.  W.  78. 

83  Commissioners  v.  Thompson, 
15  Ala.  134;  ^Morgan's  Louisiana 
&c.  R.  Co.  V.  Bourdier,  1  McGloin 
(La.)  232;  ^^lorgan  v.  Chicago  &c. 
R.  Co.,  id  Mich.  428;  Brazee  v. 
Raymond,  59  Mich.  548,  26  N.  W. 
699;  New  Orleans  &c.  R.  Co.  v. 
Frederic,  46  Miss.  1 ;  New  York 
&c.  R.  Co.,  Matter  of,  62  Barb. 
(N.  Y.)  85;  Norton  v.  Wallkill  Val- 
ley R.  Co.,  63  Barb.  (N.  Y.)  11; 
Reitenbaugh  v.  Chester  Valley  R. 
Co.,  21  Pa.  St.  100;  Appeal  of  Cen- 
tral R.  Co.,  102  Pa.  St.  38.  See 
also  Lyle  v.  Chicago  &c.  R.  Co.,  55 
Minn.  223,  56  N.  W.  820. 


^  1 :;()() 


IIAILKOADS 


922 


miles  without  specifying"  any  particular  i)lacc  in  the  \  illage,  is 
\  old  for  indcfiniteness.''"'  W  here  there  is  no  notice  at  all  the  pro- 
ceedings will  be  treated  as  a  nullity  even  when  attacked  in  a  col- 
lateral proceeding.®'  Some  of  the  cases  go  so  far  as  to  hold  that 
the  proceedings  are  Noid  although  there  is  notice,  if  the  notice  is 
defective,  but  it  seems  to  us  that  some  of  the  cases  go  too  far. 
:\  provision  that  the  notice  shall  recite  the  substance  of  the  peti- 
tion was  held  to  be  substantialh'  complicij  w  ith  by  a  notice  which 
informed  the  land-owner  that  the  company  would  make  applica- 
tion for  the  appointment  of  commissioners  to  view  his  property 
.-.nd  assess  the  dam.-iges  he  would  sustain  l\v  the  establishment  oL 
a  railroad  across  it  upon  a  location  which  was  particularly  de- 
scribed, although  it  did  not  purport  to  recite  the  petition.**^'  If 
the  statute  requires  the  notice  to  name  the  owner,  the  require- 
ment must  be  C()ni])lie(l  \vith;  otherwise  the  proceedings  will  be 
erroneous.'*" 


§  1306   (1021).     Notice — Political   questions  —  Expediency.  — 

The  rule  that  there  must  be  notice  in  order  to  constitute  due 
process  of  law  does  not  extend  to  questions  upon  w  hich  the  pro])- 
erty  owner  is  not  entitled  to  a  hearing.     There    are    questions 


^*  Minneapolis  &c.  R.  Co.  v. 
Kanne,  32  Minn.  174;  Johnson,  In 
re,  49  N.  J.  L.  381.  8  Ad.  113;  Wall- 
kill  Valley  R.  Co.  v.  Norton,  12 
Abb.  Pr.  (N.  S.)  317;  Rensselaer 
&c.  R  Co.  V.  Davis,  43  N.  V.  137: 
Broadway  &c.  R.  Co.,  In  re,  69 
Hun  (N.  Y.)  275,  23  N.  Y.  S.  609. 
See  Thompson  v.  Chicago  &c.  Co., 
100  Mo.  147,  19  S.  W.  77,  as  to  the 
effect  of  failure  to  hear  the  appli- 
cation at  the  time  specified  in  the 
notice. 

85  Hull  V.  Chicago  &c.  R.  Co.,  21 
Nebr.  371.  3  N.  W.  162;  Lohnian  v. 
St.  Taul  &c.,  18  Minn.  174;  Crugcr 
V.  Hudson  River  R.  Co.,  12  N.  Y. 
190;  Leavitt  v.  Eastman.  77  Maine 
117:  Barnes  v.  Fox,  61  Iowa  18,  15 
N.  W.  581. 

8«  Quincy    &c.    R.    Co.   v.   Taj'lor, 


43  Mo.  35. 

■'*"  Birge  v.  Chicago  &c.  R.  Co.,  65 
lusva  440,  21  N.  W.  767;  Ellsworth 
V.  Chicago  &c.  R.  Co.,  91  Iowa  386, 
59  N.  W.  78.  If  the  notice  name 
only  a  life  tenant  the  remainder- 
man is  not  bound  by  the  proceed- 
ing. Chicago  &c.  R.  Co.  v.  Smith. 
78  III.  96.  In  these  cases  the  pro- 
ceedings were  held  void,  collater- 
all}-,  as  to  persons  not  named.  The 
interest  of  the  life  tenant  is  not  af- 
fected by  a  proceeding  against  the 
remainder-man.  Railroad  Co.  v. 
I'.oyer,  13  Ta.  St.  497.  See  also 
generally  as  to  naming  those  in- 
terested, Warwick  Sav.  Inst.  v. 
Providence,  12  R.  I.  144;  Huling  v. 
Kaw  Valley  R.  &c.  Co..  130  U.  S. 
559,  9  Sup.  Ct.  603,  32  L.  ed.  1045. 


023 


PROCEDURE  IN  APPROPRIATION  CASES 


§  1  :wi 


Upon  which  the  parties  are  not  entitled  to  a  hearin.i^:  and  as  to 
those  questions  it  is  not  necessary  that  there  should  be  notice, 
unless  the  statute  requires  it.^^  The  question  whether  the  pro- 
posed improvement  shall  be  made,  and  in  what  mode,  are  political 
questions  which  may  be  settled  in  any  manner  chosen  by  the 
legislature,  without  any  notice  to  the  owner  except  such  as  it  sees 
fit  to  prescribe,*^  provided,  of  course,  that  the  proposed  use  is  a 
public  one,^°  and  the  constitution  places  no  limit  upon  this  right. 
But  where  the  constitution  permits  the  condemnation  of  the 
property  only  after  a  public  necessity  for  the  taking  has  l)een 
found  by  a  jury,  the -property  owner  is  entitled  to  such  notice  as 
will  enable  him  to  dispute  the  existence  of  such  a  necessity .°^  It 
has  been  held  that  at  whatever  stage  of  the  proceedings  the 
owner  of  land  sought  to  be  condemned  is  summoned  to  appear 
after  such  notice  he  has  the  right  to  contest  the  appropriation  oL 
his  land  to  the  petitioner's  use.^^ 


ss  Weaver  v.  Templin,  113  Ind. 
298,  14  N.  E.  600;  Preble  v.  Port- 
land, 45  Maine  241;  People  v. 
Smith,  21  N.  Y.  595;  Baltimore  &c. 
R.  Co.  V.  Pittsburgh  &c.  R.  Co.,  17 
W.  Va.  812;  Holt  v.  Somerville,  127 
Mass.  408.  Where  the  statute  re- 
quires that  notice  shall  be  given 
upon  questions  of  policy,  exped- 
iency, necessity  or  the  like,  then 
notice  is  essential.  Paul  v.  Detroit. 
32  Mich.  108;  Pearsall  v.  Board  of 
Supervisors,  74  Mich.  558,  52  N.  W. 
77,  4  L.  R.  A.  193;  State  v.  Fond 
du  Lac,  42  Wis.  287.  See  also 
Luther  v.  Comrs.  of  Bruscombe 
Co.,  164  N.  Car.  241,  80  S.  E.  386. 
The  statute  need  not  provide  for 
notice  of  hearing  upon  questions  of 
expediency  or  the  like,  but,  owners 
are  entitled  to  be  heard,  in  general, 
on  all  questions  subscc|ucnt  t(i 
seizure.  Lancester  v.  A  u  g  u  st  a 
Water  Dist.,  108  Maine  137,  79  Atl. 


463,  Ann.  Cas.  1913A,  1252  and 
note. 

S9  Secombe  v.  Railroad  Co.,  23 
Wall.  (U.  S.)  109,  23  L.  ed.  67; 
Lent  V.  Tillson,  72  Cal.  404.  14 
Pac.  71;  Bemis  v.  Guirl  Drain- 
age Co.,  182  Ind.  36,  105  N.  E. 
496;  Challiss  v.  Atchison  &c.  R. 
Co.,  16  Kans.  117;  Harper  v.  Lex- 
ington &c.  R.  Co.,  2  Dana  (Ky.) 
227;  Weir  v.  St.  Paul  &c.  R.  Co.,  18 
Minn.  155;  Kramer  v.  Cleveland 
&c.  R.  Co.,  5  Ohio  St.  140;  Zim- 
merman V.  Canfield,  42  Ohio  St. 
463. 

0"  Baltimore  &c.  R.  Co.  v.  Pitts- 
burgh &c.   R.   Co.,   17  W.  Va.  812. 

91  Seifert  v.  Brooks,  34  Wis.  443. 
See  also  Baltimore  &c.  R.  Co.  v. 
Pittsburgh  &c.  R.  Co,  17  W.  Va. 
812. 

•■>-  Baltimore  &c.  R.  Co.  v.  Pitts- 
burgh  &c.   R.   Co.,   17  W.  Va.  812. 


i^  i:!()7 


i;ailuoads 


924 


§  1307  (1022).  Notice — Description. — No  ])recise  and  par- 
ticular description  of  the  property  taken  need  be  contained  in  the 
notice  unless  the  statute  particularly  requires  it,''^  and  even  where 

a  (k'scrii)tion  was  reciuired.  it  has  been  held  sufficient  to  describe 
the  land  as  that  "now  .>ccu])icd  by  the  New  Jersey  railroad  coni- 
])any  as  the  location  of  its  track.'""  or  to  describe  it  l)y  reference 
t(.  a  map  filed  by  the  condemning  company."'  But  where  the 
statute  prt)vides  for  a  definite  description,  it  must  be  s(miewhat 
strictly  complied  with.""  Defective  descriptions  may  be  cured  by 
amendment  and  courts  will  oenerally  refuse  to  set  aside  an  order 
ajjpointing-  commissioners  until  the  moving  party  has  had  an  op- 
]H)rtunitv  to  apply  to  amend  and  has  failed  to  do  so.°^  The  prin- 
ciple that  if  the  persons  entitled  to  notice  ai)pear  and  take  part 
in  the  proceedings,  of  which  they  are  required  to  be  notified, 
failure  to  object  operates  as  a  waiver  of  objections,  applies  to 
the  descriptions,  and.  indeed,  to  all  other  parts  of  the  notice.''** 

§  1308  (1023).  Service  of  notice. — \\  here  the  mode  of  giving 
or  serving  notice  is  prescribed  by  statute  that  mode  must  be  sub- 
stantially pursued.     Where  notice  is  prescribed  and  the  mode  of 


•'•*  Doughty  V.  Somerville  &c.  R. 
Co.,  21  N.  J.  L.  442;  Wilkin  v.  First 
Division  &c.  R.  Co.,  16  Minn.  271. 

0*  Coster  V.  New  Jersey  R.  Co., 
23  N.  J.  L.  227. 

95  Hazen  v.  Boston  &c.  R.  Co.,  2 
Gray  (Mass.)  574.  Hut  see  Cen- 
tral Park  Comrs.,  In  re,  51  Barb. 
(N.   Y.)    277. 

'■>''  Strang  v.  Beloit  &c.  R.  Co.,  16 
Wis.  635;  Vail  v.  Morris  &c.  R. 
Co.,  21  N.  J.  L.  189.  See  also  Mid- 
land R.  Co.  v.  Smith,  109  Ind.  488. 
9  N.  E.  474;  Lyle  v.  Chicago  &c. 
R.  Co.,  55  Minn.  223,  56  N.  W.  820. 

"7  Woodcliff  Land  Imp.  Co.  v. 
New  Jersey  &c.  R.  Co.,  72  N.  J.  t.. 
137,  60  Atl.  44;  Savannah  &c.  R. 
Co.  V.  Postal  Tel.  &c.  Co..  115  Ga. 
554,  42  S.  E.  1. 


i'8  Huston  V.  Clark,  112  111.  344; 
Swinney  v.  Fort  Wayne  &c.  R.  Co., 
59  Ind.  205,  219;  Indiana  &c.  R. 
Co.  V.  Allen,  100  Ind.  409;  Atchi- 
son &c.  R.  Co.  V.  Patch,  28  Kans. 
470;  Stephens  v.  Commissioners,  36 
Kans.  664,  14  Pac.  175;  Barre 
Turnpike  Co.  v,  Appleton,  2  Pick. 
(Mass.)  430;  East  Saginaw  &c.  R. 
Co.  V.  Benham,  28  Mich.  459;  Con- 
cord R.  Co.  V.  Greely,  17  N.  H.  47: 
Boston  &c.  R.  Co.  v.  Folsom,  46  N. 
H.  64:  Brock  v.  Barnet,  57  Vt.  172: 
Muire  v.  Falconer,  10  Grat.  (Va.) 
12;  Corrigal  v.  London  &c.  R.  Co.. 
5  M.  &  G.  219,  44  Eng.  C.  L.  123. 
See  also  Union  Depot  Co.  v.  Fred- 
erick, 117  Mo.  138,  21  S.  W.  1118. 
1130,  26  S.  W.  530;  Galveston  &c. 
R.  Co.  V.  Bandat,  18  Tex.  Civ.  App. 
595,  45  S.  W.  939. 


925  PROCEDIRK    IX    APPROPRIATION   CASES  §  1308 

service  is  not  desij^nuted.  it  seems  to  us  that  service  would  be 
good  if  made  in  accordance  with  the  general  rules  governing 
service,  for  the  particular  statute  may,  in  that  respect,  be  aided 
])v  otlu-r  statutes  and  other  rules  uf  law.''''  It  has  been  held  that 
where  service  upon  an  agent  is  relied  upon,  it  must  be  shown 
that  the  agent  was  authorized  to  receive  such  service/  but  this 
mav  be  done  by  showing  the  duties  or  position  of  the  agent,  and 
that  he  is  embraced  within  the  statute  authorizing  service  upon 
the  agents.-  Where  the  statute  provides  for  notice  by  publica- 
tion and  the  notice  is  published  in  different  newspapers,  sent  to 
different  subscribers  for  i)art  of  the  prescribed  time,  it  will  not 
be  eflfective  although  taking  all  the  publications  in  the  different 
papers,  it  appears  that  it  was  published  the  prescribed  number  of 
weeks.''  Where  the  notice  is  by  publication  the  affidavit  pre- 
scribed bv  statute  must  be  filed.*  It  is  a  general  rule  that  where 
notice  bv  pul)lication  is  prescribed  it  must  be  given  in  accordance 
with  the  statute  in  all  material  particulars.'^     There    are    cases 

9»  Notice    by    mail,    unless     such'  Toledo  &c.  R.  Co..  46  ]\lich.   190.  9 

notice  is   provided  for  by  the   stat-  N.   W.  249.     But   it   has   been   held 

ute,    is    not    sufficient.     Morgan    v.  that    service    may    be    either    upon 

Chicago  &c.  R.  Co.,  36   ]\Iich.  428.  the  agent  or  the  owner  where  the 

But  see   Crane  v.   Camp.   12   Conn.  statute    permits    service     upon     the 

464.     Notice  by  publication,  as  pre-  agent.     Saginaw     &c.      R.      Co.     v. 

scribed  by  statute,  is  good.  Huling  Bordrier,   108  Mich.  236,  66  N.  'W. 

V.  Kaw  Valley  R.  &c.  Co.,  130  U.  .^  62. 

559,  9  Sup.  Ct.  603,  32  L.  ed.  1045;  ^  St.   Paul    &c.   R.   Co.,   In   re,   36 

St.  Paul  &c.  R.  Co.  v.  Minneapolis.  Minn.  85.  30  N.  W.  432,  28  Am.  & 

35  Minn.  141.  27  N.  W.  500,  24  Am.  Eng.  R.  Cas.  255. 

&    Eng.    R.    Cas.    309;    Winnebago  -  Hull  v.  Chicago  &c.  R.  Co.,  21 

&c.   Co.   V.   Wisconsin    &c.    Co.,   81  Nebr.  371.  32  N.  W.   162. 

Wis.  389,  51    N.  W^   576;   Birge  v.  ■*  Brown  v.   St.   Paul  &c.  R.   Co., 

Chicago   &c.   R.   Co..   65    Iowa  440,  38   Minn.   506,  38   N.  W.  698;    Bar- 

21    N.   W.   767,  20  Am.  &   Eng.   R.  ber    v.    Morris,    37    Minn.    194,    33 

Cas.    291.     It    is    held    that    where  N.  W.  559,  5  Am.  St.  836.     See  also 

personal   service   is    required,   serv-  New  Jersey  Cent.  R.  Co.'s  Appeal, 

ice  on  the  owner  in  another  state  102  Pa.  St.  38;  Parker  v.  Ft.  Worth 

satisfies  the  statute.     State  v.  Hud-  &c.   R.   Co.,  84  Tex.  333,  19  S.  W. 

son    River    R.    &c.    Co.    (N.   J.),   25  518. 

Atl.  853.  ■''  Mississippi   River  &c.   R.   Co.  v. 

1  Memphis  &c.  R.  Co.  v.  Parsons  Jones,  54   Mo.  App.  529.     See   Chi- 

&c.   Co.,  26   Kans.   503;   Dunlap  v.  cago   &c.   R.   Co.   v.   Smith,   78   111. 


,;  lljOy  KAILUOAOS  'J26 

holdinj?  that  where  a  part  only  of  those  entitled  thereto  are  i^iven 
notice,  proceedings  which  are  otherwise  regular  will  bin<l  such  as 
are  notified,  but  will  be  in\a!i(l  as  lo  those  not  receivinii;-  notice, 
but  there  is  some  diversity  of  opinion  on  the  g^eneral  questi(,)n.'' 
Where  notice  as  to  some  of  the  land-owners  is  insufficient  it  is 
iu)t  improper  to  dismiss  as  to  them  and  continue  the  proceedings 
as  to  those  sufficiently  notified.'  Infants,  who  own  an  estate  in 
common  with  their  mother,  with  whom  they  live,  are  not  bound 
l)v  a  notice  addressed  to  the  mother  only.®  Where  service  is  re- 
quired to  be  made  upon  the  owner  or  owners  it  must  be  made 
upon  all  who  come  within  the  meaning  of  the  term  "owner"  or 
"owners."  In  general,  the  word  owner  includes  the  holder  of 
any  legal  or  e(|uitable  estate,  such  as  lessees,^  mortgagees,^''  or 

96;   Bradley  v.   ^Missouri   Pacific    R.  \i.    L".    v.     l-rcderic,    46     Miss.     1; 

Co.,   91    Mo.   493,  4   S.   W.   427,   30  Moses  v.  St.   T.ouis   cS:c.   Dock   Co., 

Am.   &   Eng.   R.   Cas.   379;    Kansas  84    Mo.   242;    State    v.    Easton    and 

City  V.  Mastin,  169  Mo.  80.  68  S.  W.  Amhoy  &c.  R.  Co.,  36  X.  J.  L.  181. 

1037;  Hull  V.  Chicago  &c  R.  Co.,  21  "  Milwaukee    Southern     Ry.    Co., 

Nebr.     371,    32     N.    W.     162.     Rut  In  re,  124  Wis.  490.  102  X.  \V.  401. 

actual    personal    service   on   a    non-  ^  New     Orleans     &c.     R.     Co.     v. 

resident   has   been    held    equivalent  l'"rc(leric,    46    Miss.    1:    Swinncy    v. 

to    publication.     State     v.     Hudson  lH)rt    Wayne    &c.    R.    Co..    59    Ind. 

River    R.    &c.    Co.    (N.    J.),   25   Atl.  205.     See,     generally,     l.olmian     v. 

853.     The     courts     of     Washington  St.    Paul   &c.   R.   Co..   18   Minn.    174: 

hold  that  the  statutes  of  that  state  Rlieiner    v.    Union    &C.    Iv.    C"..    31 

do  not  require  that  the  affidavit  for  .Minn.  li',*).  17  X.  W.  b23.   14  .\ni.  & 

service  by  publication  should  state  l^ng.  R.  Cas.  373.  But  see  Charles- 

that  the  owner's  residence  was  un-  ton    &c.    Co.    v.    Comstock.    36    W. 

known    to    and    could    not    be    dis-  Yn.  263,  15   S.   E.  69. 

covered    by    any    of    the    agents    or  '-'Pennsylvania  R.  Co.  v.  Eby,  107 

officers  of  the  corporation.  Moyna-  Ra.  St.  166;   Colcough  v.   Xashville 

han    v.    Superior    Court.    42   Wash,  ^'vc.    R.    Co..   2    Head    (Tenn."!    171; 

172,  84  Pac.  655;  Hunt  v.   Smith.  9  l^.altimore    <S:c.    R.    Co.    v.    Thomi)- 

Kans.  137.  son,    10   Md.   76:    Gilligan   v.    I'rovi- 

0  Columbus   &c.    R.   Co.   v.   With-  dence.   11    R.   I.  258. 

crow.  82  Ala.   190,  3  So.  23;   Smith  i"  Dodge    v.    Omaha    X:o.    R.    Co., 

V.  Chicago  &c.  R.  Co.,  67  111.   191:  20   Xebr.  276.  29   X,   W.  936:    Sev- 

Garmoe  v.  Sturgeon,  65  Iowa    147.  erin  v.  Cole.  38  Iowa  463.     But  see 

21  N.  W.  493;  Detroit  &c.  R.  Co.  v.  contra  as  to  mortgagees  and  judg- 

Dctroit,  49  Mich.  47,  12  N.  W.  904;  ment  creditors,  Williams  v.  Hutch- 

Barlage  v.  Detroit    &c.    R.    Co.,   54  inson  &c.  R.  Co.,  62  Kans.  412,  63 

Mich.   564,  20  N.  W.   587,    17   Am.  Pac.  430,  84  Am.  St.  408. 
&   Eng.   R.   Cas.   131;   New   Orleans 


927 


PKOCKDlKi:    IN    Al'PKOPUlATIOX    CASES 


1309 


\'eiidees  in  possession. ^^  No  general  designation  of  the  "persons 
interested"  liy  the  language  used  in  the  statute  can  supply  the 
places  of  the  names  of  such  persons,  where  the  statute  requires 
the  notice  to  be  given  to  "all  persons  interested."^-  Where  one 
is  notified  as  an  occupant,  he  must  defend  for  whatever  interest 
he  has.^'" 

§  1309   (1024).     Summoning  the  jury  or  commissioners. — The 

general  rule  is  that  the  proxisions  of  the  statute  as  to  the  ap- 
pointment of  commissioners  or  the  summoning  of  a  jury  must  be 
strictly  pursued.^*  But  where  the  statute  simply  provides  that 
the  proceedings  shall  be  in  a  certain  court  before  a  jury,  the  jury 
is  to  be  drawn  as  in  other  cases.^^  The  failure  to  fix  a  day  for  the 
jury  to  meet,  as  required  by  the  statute,  has  been  held  to  in- 
validate a  warrant  for  summoning  them.^*^  Some  of  the  courts 
h.old  that  the  order  or  warrant  tnider  \\-hich  they  act  should  state 
(iefinitc'K'  the  duties  which  the  jury  or  commissioners  are  to  per- 


il Smitli  V.  Ferris,  6  liun  (N.  ¥.■) 
553. 

1-  Birge  v.  Chicago  &c.  R.  Co.. 
65  Iowa  440,  21  X.  W.  767.  A 
mortgagee  is  a  person  interested 
within  the  meaning  of  sncli  a  stat- 
ute. Pratt  V.  Bright,  29  X.  J.  Eci. 
128;  JNIichigan  &c.  R.  Co.  v.  Barnes. 
40  Mich.  383;  Wilson  v.  European 
&c.  R.  Co.,  67  Maine  358.  So  also 
are  persons  holding  judgment  liens 
against  the  land.  Watson  v.  Xew 
York  Cent.  R.  Co.,  6  Abb.  CN.  Y.) 
Pr.  X.  S.  91;  State  v.  Easton  &c. 
R.  Co.,  36  X.  J.  L.  181. 

!■'  McTntyre  v.  Easton  &c.  R.  Co., 
26  X.  J.  Eq.  425.  See  generally 
Piatt  V.  Bright,  29  X.  J.  Eq.  128: 
Severin  v.  Cole,  38  Iowa  463:  Balti- 
more &c.  R.  Co.  V.  Baltzell.  75  Md. 
94,  23  Atl.  74;  Boynton  v.  Peter- 
borough, 4  Cush.  (Mass.)  467: 
Quincy  &c.  R.  Co.  v.  Taylor,  43 
Mo.  35;  Cory  v.  Chicago  &c.  R. 
Co.,    100   Mo.   282,    13    S.    W.   346: 


Xorton  V.  Wallkill  &c.  R.  Co..  63 
Barb.  (X.  Y.)  11;  Xew  York  &c. 
R.  Co.,  In  re,  29- Hun  (N.  Y.)  269: 
Broadway  &c.  R.  Co.,  In  re.  34 
Hun    (X.   Y.)   414. 

I'*  A  substantial  compliance  has 
been  held  sufficient.  Queen  v. 
Lancaster  &c.  R.  Co.,  6  A.  &  E. 
X.  S.  759,  51  E.  C.  L.  757. 

1^  It  is  said,  however,  that  there 
can  not  be  a  peremptory  challenge 
to  a  juror  unless  it  is  expressly 
conferred  by  statute,  and  that  a 
statute  allowing  peremptory  chal- 
lenge in  "civil  causes"  does  not  ap- 
ply to  proceedings  under  the  right 
of  eminent  domain  Peninsular  R. 
Co.  V.  Howard,  20  Mich.  18.  See 
Davis  V.  Bangor  &c..  60  Maine  303. 
We  can  not  believe  that  the  doc- 
trine of  the  cases  cited  can  apply 
where  the  statute  provides  in  gen- 
eral  terms   for  a  jury  trial. 

1^  Chesapeake  &c.  Canal  Co.  v. 
Kev.   3    Cranch    (C.    C.)    599. 


i^  1310  RAILROADS  928 

form.  Init  this  rule  can  not  apply  where  the  statute  ])rovi(les  for 
the  submission  of  the  matter  to  an  ordinary  jury.^^  It  is  also 
held  that  the  warrant  must  be  returned  to  the  i)roper  court  or  all 
proceedin.^-s  under  it  will  be  void."^  It  is  said,  however,  that  if 
more  than  the  required  number  of  jurors  are  summoned,  the  pro- 
ceeding's will  not  l)e  erroneous,  if  only  twelve  are  empanelled. ^^ 
A  jury,  summoned  by  a  disinterested  deputy  sheriff,  while  an- 
other was  interested,  was  held  to  have  no  power  to  act  under  a 
statute  which  provided  that  if  the  sherifT  or  either  of  his  deputies 
was  interested,  the  jury  should  be  summoned  by  the  coroner.-" 
And  wdiere  the  statute  required  that  a  precept  be  issued  to  the 
sheriff  to  summon  a  jury,  it  was  held  to  be  error  for  him  to  select 
the  jury  from  a  list  of  names  prepared  by  his  deputy.-^ 

§  1310  (1025).  Parties. — The  general  rule  is  that  all  persons 
who  have  an  estate,  interest  or  right  in  the  land  sought  to  be  ap- 
])ropriated  should  be  parties  to  the  i)roceedings.--     As  we  have 

17  Heise  v.  Pennsylvania  R.  Co..  &c.  R.  Co.  v.  Alley,  34  Mich.  18; 
62  Pa.  St.  67.  But  see  Mitchell  v.  Williams  v.  Monroe,  125  Mo.  574, 
Bridgewater,  10  Ciish.  (Mass.)  411.  28   S.   W.  853;    State   v.    Easton    R. 

18  Cassidy  v.  Kennebec  &c.  R.  Co.,  36  N.  J.  L.  181;  Patterson  v. 
Co.,  45  Maine  263.  Binghamton,  88  Hun  272.  34  X.  Y. 

19  Fitchburg  R.  Co.  v.  Boston  &c.  S.  416;  Moore  v.  Mayor.  8  X.  V. 
R.  Co.,  3  Cush.  (Mass.)  58.  HO.   59   Am.   Dec.  473;    Gwynne   v. 

-"  I'larrc    &c.    Corporation   v.   Ap-  Cincinnati.  3  Ohio  24.  17  Am.  Dec. 

plcton,  2  Pick.   (Mass.)   430.  Where  576;    Justice    v.     Philadelphia.      169 

the  officer  who  summoned  the  jury  Pa.   St.  503,  32  Atl.  592,  36  W.   N. 

was  a  stockholder  the  proceedings  Car.    509;    Davidson    v.    Texas    &c. 

were  set  aside  and  a  venire  de  novo  R.    Co.,   29   Tex.    Civ.    App.    54.    67 

awarded.      Woodstock    R.     Co.    v.  S.  W.   1093;  Austin  v.   Rutland  &c. 

Tuper.  12  New  Brunswick  457.     By  R.    Co.,   45    Vt.   215;    Walbridgc    v. 

appearing    and    taking   part    in    the  Cabot,    67    Vt.    114.     30     Atl.     805; 

proceedings,   the    defendant   waives  Charleston  &c.  R.  Co.  v.  Comstock, 

all    objections   on    account     of    the  36  W.  Va.  263.  15  S.  E.  69:  Davis  v. 

sheriff    being    an    interested    party.  La  Crosse  &c.  R.  Co..  12  Wis.   16; 

Corrigal   v.   London   &c.   R.   Co.,   5  Philips  &c.,  In  re,  L.  R.  6  Eq.  250; 

yi.  &  G.  219,  44  Eng.  C.  L.  123.  Pfleger,  In  re.  L.  R.  6  Eq.  426.  See 

21  Pennsylvania  R.  Co.  v.  Heister,  also  Anderson  v.  Pemberton,  89 
8  Pa.  St.  445.  Mo.  61,  1  S.  W.  216;  Rule  v.  Sioux 

22  Shclton  V.  Derby,  27  Conn.  414;  County.  94  Nebr.  736,  144  X.  W. 
Chicago  &c.  R.  Co.  v.  Cicero,  154  806;  South  Carolina  R.  Co.  v.  Am- 
III.  656,  39  N.  E.  574;  Grand  Rapids  crican  Tel.  &c.  Co..  65  S.  Car.  459, 


929  PROCEDURE  IN  APPROPRIATION  CASES  §  1310 

elscwliere  said  our  oiJiiiion  is  thai,  while  it  is  true  that  the  general 
rule  is  as  stated,  yet  it  is  only  persons  whose  rights,  titles,  in- 
terests, or  estates  appear  of  record  that  must  l)e  made  parties, 
except  where  possession  conveys  notice.  We  do  not  believe  that 
a  company  desiring  to  appropriate  land  is  bound  to  look  else- 
where than  to  the  records  or  to  the  occupancy  of  the  lands.  As 
a  rule  proceedings  to  secure  the  condemnation  of  lands  must  l^e 
prosecuted  by  the  party  entitled  to  the  lands,  and  not  by  a  con- 
tractor or  agent. -^  Where  damages  are  sought  under  the  statute 
in  cases  where  land  is  approjjriated  the  owners  are,  of  course,  the 
proper  parties  jilaintiffs.-''  J'roceedings  for  condemnation  of  th'.^- 
land  should  be  brought  in  the  name  of  the  company  authorized 
to  construct  the  road  for  which  it  is  taken.  And  it  has  been  held 
that  the  fact  that  such  company  has  ])arted  with  its  ])ropert\-  and 

43  S.   E.  970;   Storm   Lake   v.    lovvu  make   it  necessary  tliat  all   persons 

Falls   &c.   R.    Co.,   62   Iowa  218,    17  interested    in    the    property    should 

N.  W.  489;  Charleston  &:c.  R.  Co.  v.  be  made  parties,  but  damages  may 

Hughes,  105  Ga.  1,  30  S.  E.  972.  70  be    assessed    to    the    persons    made 

Am.    St.    17.     But    it    is    held    suffi-  parties,  and  they  can  not  complain 

cient   to   make   the   trustee   a    party  of  the  failure  to  bring  in  other  in- 

without  the  beneficiaries.     Small  v.  terested     persons.     Dowie    v.    Chi- 

Georgia  So.  R.  Co.,  87  Ga.  602,   13  cago  &c.  R.  Co..  214  111.  49,  75   X. 

S.  E.  694;  National  R.  Co.  v.  Easton  E.  354. 

&c.  R.  Co.,  36  N.  J.  L.  181.  And  ^^  Colorado  &c.  R.  Co.  v.  Ruedi. 
in  a  proceeding  to  condemn  the  2  Colo.  App.  202,  29  Pac.  1034: 
rights  of  an  abutting  owner  the  Kansas  &c.  R.  Co.  v.  Streeter,  8 
municipality  in  which  the  highway  Kans.  133.  See  Cory  v.  Chicago  &c. 
lies  is  not  a  necessary  party.  Phila-  R.  Co.,  100  Mo.  282,  13  S.  W.  346: 
delphia  &c.  Ferry  Co.  v.  Intercity  Deitrichs  v.  Lincoln  &c.  R.  Co.,  13 
Link  R.  Co..  73  N.  J.  L.  86.  62  Nebr.  361,  13  N.  W.  624;  Junction 
Atl.  184.  Some  courts  re<|uire  the  &c.  R.  Co.  v.  Silver,  27  Kans.  741, 
petitioner  at  his  peril  to  ascer-  14  Am.  &  Eng.  R.  Cas.  324;  Pro- 
tain  and  name  in  the  petition  the  prietors  &c.  v.  Nashua  &c.  Co.,  10 
true  owner  of  the  land  sought  to  Cush.  (Mass.)  385. 
be  condemned  and  taken,  and  the  -*  Hibbs  v.  Chicago  &c.  R.  Co., 
person  so  named  is  not  required  to  39  Iowa  340.  But  it  is  held  that 
prove  title.  Chicago  &c.  R.  Co.  v.  unless  the  statute  authorizes  the 
Diver,  213  111.  26,  72  N.  E.  758.  The  owner  to  initiate  the  proceedings 
Illinois  courts  construe  a  statute  he  can  not  do  so.  Indianapolis  &c. 
requiring  petitions  in  condemnation  Co.  v.  Reed.  52  Ind.  357;  Benton- 
proceeding  to  describe  all  persons  ville  &c.  R.  Co.  v.  Baker,  45  Ark. 
interested    in    the    property    not    to  252.     In   Pennsylvania  the  proceed- 


i;no 


KAILUOADS 


930 


liancliises  by  sale,-'  or  lease, -^  does  not  prevent  the  institution  of 
such  proceedings  in  its  name.  The  proceeding  may  he  main- 
tained by  a  de  facto  corporation.'-"  So,  it  has  been  held  that  the 
fact  that  proceedings  are  prosecuted  in  the  name  of  the  petitioner 
as  agent  of  the  railroad  company  does  not  invalidate  them.-^ 
Where  damages  are  to  be  assessed  for  land  already  appropriated, 
the  owner  of  the  land  at  the  time  it  was  taken  is  the  proper  party 
defendant,-^  and  in  case  of  his  death  pending  proceedings,  they 
should  ordinarily  be  revived  in  the  name  of  his  personal  repre- 
sentatives.^°    But  if  a  future  acquisition  of  title  is  sought,  the 


inj^-  must  be  by  the  holder  of  tlic 
title  as  owner  or  lessee;  it  can  not 
be  by  an  administrator.  Mountz  v. 
Philadelphia  &c.  R.  Co..  203  Pa.  128. 
52  Atl.  15. 

-'  Cory  V.  Chicag^o  &c.  R.  Co., 
100  Mo.  282,  13  S.  W.  346.  In  this 
case  it  was  held  that  a  statute  re- 
(|uiring  actions  to  be  brought  in 
the  name  of  the  real  party  in  in- 
terest does  not  embrace  proceed- 
ings of  this  character  nor  affect 
the  jurisdiction  of  the  court. 

-''  Gottschalk  v.  Lincoln  &c.  R. 
Co.,  14  Nebr.  389,  15  N.  W.  695. 
See  also  State  v.  Superior  Court  of 
King  County,  31  Wash.  445.  72 
Pac.  89,  66  1..  R.  A.  897:  Cliicago 
(S:c.  R.  Co.  V.  Illinois  Cent.  R.  Co.. 
113  111.  156:  Metropolitan  El.  R. 
Co.,  In  re,  18  N.  Y.  St.  134,  2  N.  Y. 
S.  278. 

-"Morrison  v.  Indianapolis  &c. 
R.  Co.,  166  Ind.  511,  76  N.  E.  961, 
n  N.  E.  744,  and  cases  there  cited 
in  the  opinion  of  the  court;  ante, 
§  1201;  note  in  50  L.  R.  A.  (N.  S.) 
236. 

2«  Hannibal  6tc.  R.  Co.  v.  .Mur- 
ton.  27  Mo.  317. 

-'*  Davidson  v.  Boston  &c.  R.  Co., 
3  Cush.  (Mass.)  91;  Drury  v.  Mid- 
land R.  Co.,  127  Mass.  571.  In 
I'cnnsvh  ania.     llu-     location     nf     a 


railroad  fixes  its  right  to  take  any 
lands  across  which  it  runs,  and  all 
assessments  of  damages  must  be 
made  with  reference  to  the  date  of 
the  location,  and  in  favor  of  the 
person  owning  the  land  at  that 
time.  Davis  v.  Titusville  &c.  R. 
Co..  114  Pa.  St.  308,  6  Atl.  IZfy. 

■•••"  Valley  R.  Co.  v.  Bohm,  29  Ohio 
St.  6.33;  Peoria  &c.  R.  Co.  v.  Rice, 
75  ill.  329;  Darling  v.  Blackstone 
&c.  Co.,  16  Gray  (Mass.)  187;  Up- 
per Appomattox  Co.  v.  Hardings, 
11  Grat.  (Va.)  1;  Monterey  County 
V.  Gushing,  83  Cal.  507,  23  Pac.  700. 
But  it  is  held  in  some  jurisdictions 
at  least,  that  the  heirs  should  be 
made  parties.  Valley  R.  Co.  v. 
Bohm,  29  Ohio  St.  633;  Satterfield 
V.  Crow,  8  B.  Mon.  (Ky.)  553.  See 
also  Peoria  &c.  R.  Co.  v.  Rice,  75 
111.  329.  If  proceedings  to  assess 
the  compensation  for  lands  already 
taken  are  brought  after  the  death 
of  the  owner,  his  personal  repre- 
sentatives, and  not  the  heirs  or  de- 
visees, are  the  proper  parties.  Whit- 
man V.  Boston  &c.  R.  Co.,  3  Allen 
(Mass.)  133;  Church  v.  Grand 
Rapids  &c.  R.  Co.,  70  Ind.  161; 
Neal  v.  Knox  &c.  R.  Co.,  61  Maine 
298.  But  see  Kane  v.  Kansas  City 
&c.  R.  Co.,  112  Mo.  34,  20  S.  W. 
532. 


931 


PROCEDl'RE   IX    APPROPRIATION    CASES 


§1311 


owner  of  the  land  at  the  time  the  proceedings  are  instituted  is  the 
proper  defendant.^'  If  the  land  has  been  seized  by  the  railroad 
company  without  right,  and  subsequently  a  proceeding  is  begun 
to  acquire  title,  the  owner  of  the  land  at  the  time  the  proceeding 
is  instituted  is  entitled  to  the  compensation.^^ 

§  1311  (1025a).  Parties  —  Grantor  or  grantee  —  Interested 
parties  generally.''-' — A  right  to  compensation  once  accrued  does 
not  pass  by  a  subsequent  conveyance  of  the  land,  even  with  cove- 
nants of  warranty,  unless  the  deed  contains  an  express  stipula- 
tion to  that  effect.''^''  It  follows  from  this  rule  that  the  grantor, 
where  there  is  no  assignment,  is  the  proper  party  in  the  proceed- 
ings to  recover  the  damages.     Though  even  where  the  compen- 


31  Smith  v.  Chicago  &c.  R.  Co., 
67  111.  191;  Elizabethtown  &c.  R. 
Co. 'v.  Helm,  8  Bush.  (Ky.)  681; 
Stewart  v.  White,  98  Mo.  226,  11 
S.  W.  568;  Houston  v.  Paterson 
&c.  Traction  Co.,  69  N.  J.  L.  168, 
54  Atl.  403.  One  who  was  not  an 
owner  of  the  land  at  the  time  the 
proceedings  were  instituted  can  not 
take  an  appeal  from  the  award;  the 
fact  that  he  has  purchased  the 
property  after  condemnation  pro- 
ceedings were  begun  does  not  make 
him  a  proper  party  to  such  pro- 
ceedings. Connablc  v.  Chicago  &c. 
R.  Co.,  60  Iowa  27.  14  N.  W.  75; 
Cedar  Rapids  &c.  R.  Co.  v.  Chi- 
cago &c.  R.  Co.,  60  Iowa  35,  14 
N.  W.  76.  One  who  purchases 
land  after  the  condemnation  of  a 
right  of  wa}-  across  it  has  no  claim 
to  the  compensation  therefor.  After 
condemnation  the  claim  to  compen- 
sation is  a  personal  claim  of  the 
owner  in  whose  favor  it  was  as- 
sessed. Dixon  v.  Baltimore  &c.  R. 
Co.,  1  Mackey  (D.  C.)  78,  3  Am.  & 
Eng.  R.  Cas.  201.  See  also  ante. 
§  1274,  et  seq. 


32  Hatfield  v.  Central  R.  Co.,  29 
N.  J.  L.  571;  Donald  v.  St.  Louis 
&c.  R.  Co.,  52  Iowa  411,  3  X.  W. 
462;  Harrington  v.  St.  Paul  &c.  R. 
Co.,  17  ]\Iinn.  215;  Galveston  &c. 
R.  Co.  v.  Pfeufifer,  56  Tex.  66. 
Contra  McLendon  v.  Atlanta  &c. 
R.  Co.,  54  Ga.  293.  See  Pomeroy 
V.  Chicago  &c.  R.  Co.,  25  Wis.  641. 

"^  Part  of  this  section  was  part  of 
§  1025  in  the  original  edition. 

-*  ISIcLend'on  v.  Atlanta  &c.  R. 
Co.,  54  Ga.  293;  Chicago  &c.  R.  Co. 
V.  Maher,  91  III.  312;  Indiana  &c. 
R.  Co.  V.  Allen,  100  Ind.  409;  Drury 
V.  Midland  R.  Co..  127  :\Iass.  571; 
Carli  V.  Stillwater  &c.  R.  Co.,  16 
Minn.  260;  Tenbrooke  v.  Jahke,  11 
Pa.  St.  392;  Davis  v.  Titusville  &c. 
R.  Co.,  114  Pa.  St.  308.  6  Atl.  736; 
Lewis  V.  Wilmington  &c.  R.  Co.. 
11  Rich.  L.  (S.  Car.)  91:  Paducah 
&c.  R.  Co.  V.  Stovall,  12  Heisk. 
(Tenn.)  1;  Central  R.  Co.  v.  ]Mer- 
kel,  32  Tex.  12Z;  Pomeroy  v.  Chi- 
cago &c.  R.  Co.,  25  Wis.  641.  See 
also  Little  Rock  &c.  R.  Co.  v. 
Greer,  11  Ark.  387,  96  S.  W.  129; 
ante,  §  1274,  ct  seq. 


§1311 


IJAILKOAUS 


932 


sation  is  required  to  i)rcce(le  the  takins'.  it  has  l)een  held  tliat  the 
construction  of  a  raih'oad  upon  the  land  of  another  with  his 
knowledii^e  and  without  any  objection  on  his  part  so  far  lixes 
the  rights  of  the  i)arties  that  the  sul)se(|uent  conveyance  of  the 
land  carries  with  it  no  right  to  the  damages  caused  by  such  con- 
struction."'' But  the  right  althongh  it  does  not  pass  with  the 
land  niav  be  an  assignable  one.  As  we  have  said  the  proceeding 
must  be  against  all  persons  having  an  interest  in  the  land  sought 
to  be  taken. ^"     This  would  seem  to  include  mortgagees,  whether 


"■"  A  mortgagee  in  possession  is 
entitled  to  the  same  notice  as  an 
owner.  ?.allard  v.  Ballard  Vale  Co., 
5  Gray  (Mass.)  468:  Tarker,  Peti- 
tioner. 36  X.  H.  84.  In  England 
an  ecinitablc  mortgagee  is  entitled 
to  notice.  .Martin  v.  London  &c. 
R.  Co.,  35  L.  J.  Ch.  795.  Where 
the  statnte  simply  provides  tor  a 
proceeding  against  the  '"owners" 
and  contains  no  provision  for  the 
protecti<in  of  the  inchoate  rights 
the  company  may  accpiire  the  land 
free  from  all  inchoate  rights  by 
simpl\-  proceeding  against  those 
holding  the  present  title,  and  rights 
of  dower,  curtesy,  etc.,  etc.,  can 
only  he  urged  against  the  compen- 
sation awarded.  Moore  v.  New 
York,  4  Sandf.  (N.  Y.)  456:  Uc- 
Cracken  v.  llayward,  2  How. 
(U.S.)  608,  11  L.  ed.  398. 

•■"  In  State  v.  Missouri  I'ac.  R. 
Co.,  75  Nebr.  4,  105  N.  W.  983, 
there  was  a  tax  lien,  and  the  lien- 
holder  was  not  made  a  party,  and 
the  court  said:     "The  lien  of  these 


taxes  was  a  matter  of  record.  It 
could  have  been  easily  ascertained, 
and  coidd  have  easily  been  provid- 
ed for.  Several  cases  have  been 
brought  to  our  attention  in  which 
the  courts  of  other  states  have  held 
that  upon  the  suggestion  of  the  jrail- 
way  company  the  court  would  re- 
(|uire  taxes  then  existing  upon  the 
land  to  be  paid  out  of  the  con- 
demnation money  while  the  same 
was  in  the  hands  of  the  court. 
rhiladeli)hia  &c.  R.  Co.  v.  Pennsyl- 
vania &c.  R.  Co..  151  l\-i.  569.  25 
.■\ti.  177.  However  this  may  be. 
there  can  be  no  doubt  that  under 
our  statute  the  railway  company 
might  i)rotect  itself  by  making 
Henholders  jiarties  to  the  proceed- 
ings, and,  if  it  neglects  to  do  this, 
and  allows  the  holder  of  the  fee  to 
f)btain  the  entire  award,  it  can  not 
afterwards  insist  that  the  lienhold- 
ers  shall,  by  such  proceeding,  be 
deprived  of  their  interest  in  the 
])roperty," 


933 


PROCEDURE  IN  APPROPRIATIOX  CASES 


§  i:'.n 


ill  possession,''  or  not.'-  If  tlie  staliitc  i^ives  the  rij^ht  lo  com- 
pensation to  the  person  owning  the  property  taken  at  a  ])articu- 
lar  time,  as  "when  the  raih^oad  is  finished,"  a  subsequent  grantee 
can  not  have  the  damages  assessed.^"  Some  of  the  courts  hold 
that  judgment  creditors  are  necessary  parties.'"  but  other  courts, 
with  better  reason,  liold  otherwise  distinguishing  between  a 
mortgage  lien  and  a  judgment  lien.*^  X'endees  holding  under  an 
executory  contract  for  the  purchase  of  the  land  taken,  should  be 
parties  to  the  proceedings,''-  as  well  as  those  who  are  properly 


""  South  Park  Comrs.  v.  Todd. 
112  111.  379;  Sevcrin  v.  Cole,  38 
Iowa  463;  Wilson  v.  European  «S:c. 
R.  Co.,  67  Maine  358;  Michigan  &c. 
R.  Co.  V.  Barnes,  40  Mich.  383: 
Stewart  v.  Raymond  R.  Co.,  7  S.  & 
M.  (Miss.)  568;  North  Hudson  &c. 
R.  Co.  V.  Booraeni.  28  N.  J.  Eq. 
450;  Adams  v.  St.  Johnsburj-  &c.  R. 
Co.,  57  Vt.  240;  Aspinwall  v.  Chi- 
cago &c.  Co.,  41  Wis.  474;  Wooster 
V.  Sugar  River  Vallej'  R.  Co.,  57 
Wis.  311,  15  N.  W.  401:  Martin  v. 
London  &c.  R.  Co.,  L.  R.  1  E(|. 
Cas.  145;  2  Jones  ]^Iortg.  (7th  ed.) 
§  681a.  In  Breed  v.  Eastern  R. 
C^o.,  5  Gray  (Mass.)  470,  n,  it  is 
said  that  the  mortgagor  can  re- 
cover the  full  amount  of  damages 
without  reference  to  the  mortga- 
gee. And  a  similar  holding  has 
been  made  in  other  cases.  But  the 
courts  in  which  this  rule  obtains 
holds  that  the  mortgage  lien  in 
equity  follows  the  fund  which  is  a 
substitute  for  the  land,  and,  that  by 
the  timely  application  to  a  court  of 
chancery,  the  mortgagee  may  have 
such  fund  applied  an  his  debt,  al- 
though it  is  not  due.  Crane  v. 
Elizabeth,  36  N.  J.  Eq.  339;  Mc- 
Intyre  v.  Easton  &c.  R.  Co.,  26 
N.  J.  Eq.  425;  Farnsworth  v.  Bos- 
ton. 126  Mass.  1;  Astor  v.  Hoyt,  5 
Wend.  (N.  Y.)  603. 


-'^  Indiana  &c.  R.  Co.  v.  Allen, 
100  ind.  409.  See  also  Severin  v. 
Cole,  38  Iowa  463;  Wilson  v.  Eu- 
ropean &c.  R.  Co.,  67  Maine  358: 
Piatt  v.  Bright,  29  N.  J.  Eq.  128. 
But  compare  Schumacker  v.  Tob- 
erman,  56  Cal.  508;  Chicago  &c.  R. 
Co.  v.  Shelden,  53  Kans.  169,  35 
Pac.  1105.     See  ante.  §  1278. 

•"•'  Lewis  v.  Wilmington  &c.  R. 
Co.,  11  Rich.  L.  (S.  Car.)  91. 

*"'  Where  the  statute  provides 
that  a  judgment  shall  operate  as  a 
lien  upon  the  lands  of  the  defend- 
ant, u  payment  of  the  damages  to 
such  a  judgment  creditor  ainounts 
pro  tanto,  to  a  payment  to  the 
owner.  Chicago  &c.  R.  Co.  v. 
Chamberlain,  84  111.  333. 

41  Watson  V.  New  York  &c.  R. 
Co.,  47  N.  Y.  157;  Gimbel  v.  Stolte. 
59  Ind.  446;  Shirk  v.  Thomas,  121 
Ind.  147.  149,  22  N.  E.  976.  16  .\m. 
St.  381.  See  also  Williams  v. 
Hutchinson  &c.  R.  Co.,  62  Kans. 
412.  63  Pac.  430.  84  Am.  St.  408. 

■*-  I'inkerton  v.  Boston  &c.  R. 
Co.,  109  :\Iass.  527;  Hastings  &c. 
R.  Co.  V.  Tngalis,  15  Nebr.  123.  16 
N.  W.  762;  St.  Louis  &c.  R.  Co.  v. 
Wilder.  17  Kans.  239;  Colcough  v. 
Nashville  &c.  R.  Co.,  2  Head. 
(Tenn.)  171.  The  holder  of  an 
equitable  interest  is  entitled  t" 
compensation  under  a  statute  which 


^  ]■■',]} 


RAILROADS 


934 


(iesignatecl    "the    t)\vners."*^      The    courts    ha\e    held    the    term 
"owners"  broad  enou^'h  to  inchide  lessees,^''  hie  tenants,'"'  revcr- 


provides  for  the  payment  of  dam- 
ages to  "parties  interested."  Drury 
V.  Midland  R.  Co.,  127  Mass.  571. 
See  also  Anderson  v.  Pembertnn. 
89  Mo.  61,  1  S.  W.  216. 

*^  Vendees  in  possession  have 
been  held  to  be  owners.  Smith  v. 
Ferris,  6  Hun  (N.  Y.)  553.  And  s  ■ 
have  mortgagees.  Dodge  v.  Omaha 
&c.  R.  Co.,  20  Nebr.  276,  29  N.  W. 
936;  Severin  v.  Cole,  38  Iowa  463; 
Wade  V.  Hennessy,  55  Vt.  207.      • 

**  McCauley  v.  Brooks,  16  Cal. 
11;  Storm  Lake  v.  Iowa  Falls  &c. 
R.  Co.,  62  Iowa  218,  17  N.  W.  489; 
Baltimore  &c.  R.  Co.  v.  Thompson. 
10  Md.  76;  Rogers  v.  Docks  Co^  34 
1..  J.  Eq.  165;  North  Pennsjdvania 
R.  Co.  V.  Davis,  26  Pa.  St.  238; 
Getz  V.  Philadelphia  &c.  R.  Co., 
105  I'a.  St.  547;  Pennsylvania  R. 
Co.  V.  Eby,  107  Pa.  St.  166;  Col- 
cough  V.  Nashville  &c.  R.  Co.,  2 
Head.  (Tenn.)  171;  Telephone  &c. 
Co.  V.  Forke,  2  Tex.  App.  Civ. 
Cas.  318;  Willey  v.  Southeastern 
R.  Co.,  1  :\IcN.  &  G.  58;  ante, 
§  1308.  Where  a  tenancj^  expires 
pending  condemnation  proceedings, 
the  tenant  can  not,  by  liolding  over 
with  the  consent  of  the  owner,  ac- 
(|uirc  any  right  as  against  the  con- 
demning corporation,  Schreiber  v. 
Chicago  &c.  R.  Co.,  115  111.  340,  3 
N.  E.  427.  See  Englewood  &c.  R. 
Co.  V.  Chicago  &c.  R.  Co.,  117  111. 
611.  6  N.  E.  684.  Where  the  land 
is  held  by  lease  the  compensation 
should  be  apportioned  l:)ctween  the 
lessor  and  lessee  according  to  the 
value  of  their  respective  interests. 
Baltimore  &c.  R.  Co.  v.  Thompson, 
10    Md.    76.     The    damage    to    the 


lessee  should  be  ascertained  by  ref- 
erence tip  the  difference  between 
the  annual  value  of  the  land  before 
and  after  the  taking.  Lawrence  v. 
Pioston,  119  Mass.  126.  Lessees  of 
land  with  covenants  of  renewal  are 
entitled  to  the  value  of  their  rights 
under  such  covenants,  in  addition 
to  the  value  of  the  remaining  term. 
North  Pennsylvania  R.  Co.  v. 
Davis,  26  Pa.  St.  238;  Norwich  R. 
Co.  V.  Wodehouse,  11  Beav.  382. 
See  Alabama  R.  Co.  v.  Kenney,  39 
Ala.  307.  W'here  the  tenant  had  a 
reasonable  expectancy  of  many 
years'  possession  of  the  land  ot' 
which  she  had  long  held  posses- 
sion, she  was  held  entitled  to  the 
marketable  value  of  such  expect- 
ancy. l-"arli^w.  Ex  parte,  2  B.  & 
Ad.  341.  ]\Iost  cases,  however, 
hold  that  a  tenant  can  assert  no 
rights  as  against  the  condemning 
corporation  which  he  could  not  in- 
terpose to  a  notice  from  his  land- 
lord to  quit.  Reg.  v.  Hungerford 
Market  Co.,  4  B.  &  Ad.  596;  Reg. 
V.  London  &c.  R.  Co.,  10  Ad.  &  El. 
3;  Rex.  v.  Liverpool  &c.  R.  Co.,  4 
Ad.  &  El.  650;  Palmer  &c.  Market 
Co.,  Matter  of.  9  Ad.  &  El.  463. 
Where  a  new  lease  has  been  ex- 
ecuted to  take  effect  when  the  old 
term  ends,  the  tenant  is  entitled  to 
the  value  of  the  new  lease.  Cobb 
v.  I'.oston,  109  Mass.  438. 

4s  Railroad  Co.  v.  Boyer,  13  Pa. 
St.  497;  Ross  v.  Elizabethtown  &c. 
R.  Co.,  20  N.  J.  L.  230;  Bentonville 
R.  Co.  V.  Baker,  45  Ark.  252.  The 
value  of  the  life-tenant's  interest  is 
to  be  estimated  by  multiplying  the 
net    annual    value    of   the    premises 


935 


PKOCEDUKE  IN  APPROPRIATION  CASES 


§  1311 


sioners,*'"'  heirs  or  devisees/'"  the  owner  of  land  dedicated  as  a 
street,  but  not  accepted,  ^^  and  tenants  in  common,*"  or  persons 
with  vested  interests  which  make  up  the  entire  estate.''"  Also, 
persons   holding  estates   in   trust^^    and   persons   holding   under 


by  the  years  of  the  life-tenant's  ex- 
pectancy of  life,  and  reducing  the 
same  by  calculation  to  a  cash  basis. 
Pittsburgh  &c.  R.  Co.  v.  Bentley, 
88   Pa.  St.  178. 

46  Ross  V.  Elizabethtown  &c.  R. 
Co.,  20  N.  J.  L.  230;  Bentonville 
R.  Co.  V.  Baker,  45  Ark.  252.  See 
also  Charleston  &c.  R.  Co.  v. 
Hughes,  105  Ga.  1,  30  S.  E.  972,  70 
Am.  St.  17. 

^'^  Boynton  v.  Peterborough  &c. 
R.  Co.,  4  Cush.  (Ma.ss.)  467;  Pitts- 
burgh &c.  R.  Co.  V.  Swinney,  97 
Ind.  586.  Where  the  owner  dies 
after  the  right  of  compensation  has 
accrued,  the  right  to  compensation 
vests  in  his  personal  representa- 
tives. Whitman  v.  Boston  &c.  R. 
Co.,  3  Allen  (Alass.)  133:  Xeal  v. 
Knox  &c.  R.  Co.,  61  Maine  298; 
Church  V.  Grand  Rapids  &c.  R.  Co., 
70  Ind.  161.  But  executors  are  not 
ordinarily  necessary  parties.  High- 
way Comrs.  of  Ross  v.  Chambers, 
265  111.  113,  106  N.  E.  492. 

48  Pease  v.  Paterson  &c.  Trac- 
tion Co.,  69  N.  J.  L.  524,  54  Atl.  524. 

49  Bowman  v.  Venice  &c.  R.  Co., 
102  111.  459;  Pittsburgh  &c.  R.  Co. 
V.  Hall,  25  Pa.  St.  336;  Columbi-i 
&c.  Bridge  Co.  v.  Geise,  34  N.  J. 
L.  268;  Watson  v.  Milwaukee  &c. 
R.  Co.,  57  Wis.  332.  15  N.  W.  468. 
Under  the  statutes  of  some  states, 
it  has  been  held  that  the  omission 
to  make  one  tenant  in  common  a 
party  would  avoid  the  proceedings. 
Grand  Rapids  &c.  R.  Co.  v.  Alley, 
34  Mich.  16:  Phillips  v.  Sherman, 
61   Maine  548:  Morgan's   Louisiana 


&c.  R.  Co.  V.  Bourdier,  McGloin 
(La.),  232:  Railroad  Co.  v  Bucher, 
7  Watts  (Pa.)  33. 

5"  Philadelphia  &c.  R.  Co.  v.  Wil- 
liams, 54  Pa.  St.  103;  Lexington 
&c.  R.  Co.  V.  McMurtry,  3  B.  Mon. 
(Ky.)  516;  Colcough  v.  Nashville 
&c.  R.  Co.,  2  Head.  (Tenn.)  171; 
Gerrard  v.  Omaha  &c.  R.  Co.,  14 
Nebr.  270,  15  N.  W.  231;  Stone- 
ham  V.  London  &c.  R.  Co.,  L.  R. 
7  Q.  B.  1.  See  also  Grandjean  v. 
San  Antonio  (Tex.),  38  S.  W.  837 
(reversed  91  Tex.  430,  41  S.  W.  477, 
44  S.  W.  476);  Chehalis  Co.  v.  El- 
lingson,  21  Wash.  638,  59  Pac.  485. 
Where  compensation  is  assessed 
to  but  one  of  several  owners  of 
an  estate,  the  presumption  will  be 
that  it  is  his  interest  in  the  prem- 
ises. Rex.  V.  Nottingham  Water 
Works,  6  Ad.  &  El.  355.  Where 
the  statute  requires  the  company  to 
"make  compensation  to  the  owners 
or  proprietors  of  all  private  lands, 
etc.,  taken,  or  for  any  loss  or  dam- 
age they  may  sustain  thereb}^"  it 
was  held  that  compensation  must 
be  made  to  any  person  having  a 
beneficial  interest  in  the  land.  Lis- 
ter V.  Lobley,  6  Nev.  &  M.  340: 
Russell  V.  Shenton,  3  Q.  B.  449: 
Chauntler  v.  Robinson,  4  Exch.  163. 
The  holder  of  an  easement  is  en- 
titled to  compensation  for  the  de- 
struction of  his  easement.  Phila- 
delphia &c.  R.  Co.  V.  Williams,  54 
Pa.   St.   103. 

=51  State  V.  Easton  &c.  R.  Co.,  36 
N.  J.  L.  181:  Davis  v.  Charles 
River  &c.  R.  Co.,  11  Cush.  (Mass.) 


§1311 


KAILRUADS 


936 


a  tax  deed/-  or  by  adverse  possession  which  might  ripen  into  an 
absolute  title,^'*  have  Hkewise  been  held  to  hv  necessary  ])arties.^' 
One  who  has  taken  steps  to  accjuire  title  to  pultlic  lands  under 
the  homestead  or  preemption  laws  has  a  \  csted  ri,L;iit  which 
niakes  him  a  necessary  party  to  the  condemnation  of  a  ri^ht  of 
way  across  such  lands. ^■'  P.nt  it  has  been  held  that  the  holder  of 
a  mere  license  not  cou])led  with  an  interest  is  not  entitled  to  com- 
pensation for  taking-  the  lands  upon  which  the  license  is  to  be 
exercised.''"  Some  (jf  the  cases  hold  that  the  husband  or  wife  of 
the  land-owner  should  Ik-  made  a  party,  that  all  interests  in  the 
land  may  be  properly  adjudicated,'"  but  we  (hj  not  believe  this 


506;  Hidden  v.  Davisson,  51  Cal. 
138.  Where  one  partner  held  prop- 
erty in  trust  for  the  firm,  it  was 
held  proper  for  botli  to  join  in  a 
petition  for  damages.  Reed  v. 
Hanover  &c.  R.  Co..  105  Mass.  303. 
Where  tlic  railroad  company  in- 
stitutes proceedings,  it  is  irregular 
to  join  the  cestui  cine  trust  as  a 
party.  State  v.  Easton  &c.  R.  Co., 
36  N.  J.  I,.  181.  A  receiver  of  a 
railroad  whose  property  is  sought 
to  be  condemned  is  a  necessary 
part}-.  State  v.  Superior  Court  of 
King  County,  77  Wash.  593,  13S 
Pac.  277. 

■''-  Gerrard  v.  Omaha  &c.  R.  Co., 
14  Nebr.  270,  15  N.  W.  231.  See 
also  Sanitary  Dist.  v.  Mimger,  264 
111.  256,  106  N.  !■:.  185  (a  proper 
party);  State  v.  .Missom'i  Pac.  R. 
Co.,  75  Nebr.  4,  105  N.  W.  983.  P.ut 
it  is  held  that  the  holder  of  an  in- 
valid tax  deed  does  not  have  any 
interest  in  the  land  and  is  not  en- 
titled to  compensation  out  <if  the 
award.  Sanitarj-  Dist.  v.  .Murphy, 
261  111.  269,  103  X.  E.  1001. 

■'"'=*  Winder,  E.x  parte,  L.  R.  6  Ch. 
Div.  696. 

•'•■*  A  trespasser  in  possession  has 
no  such   interest  as   to  entitle   him 


to  be  made  a  party.  Rosa  v.  Mis- 
souri &c.  R.  Co.,  18  Kans.  124. 

■'"'''  Red  River  &c.  R.  Co.  v.  Sture, 
32  -Minn.  95,  20  N.  W.  229;  Doran 
V.  Central  Pacific  R.  Co.,  24  Cal. 
245:  Rosa  v.  .Missouri  &c.  R.  Co., 
18  Kans.  124.  One  in  possession  of 
public  lands  without  right  can  not 
recover  compensation  for  anything 
but  crops  and  improvements.  Cali- 
fornia Northern  R.  Co.  v.  Gould, 
21  Cal.  254;  Doran  v.  Central  Pac. 
R.  Co.,  24  Cal.  245;  Western  Pac. 
R.  Co.  V.  Tevis,  41  Cal.  489;  Rosa 
V.  Missouri  &c.  R.  Co.,  18  Kans. 
124;  Knoth  v.  Barclay,  8  Colo.  300, 
6  Pac.  924;  Allard  v.  Lobau,  3  Mar- 
tin (La.)  N.  S.  293. 

■"'•  i^>ird  V.  Great  Eastern  R.  Co., 
34  I..  J.  C.  I'.  366.  And  it  has  been 
held  that  the  holder  of  a  note  se- 
cured l)y  deed  of  trust  on  the  land 
is  not  entilled  to  notice  and  has 
no  right  to  attack  the  proceedings 
in  an  independent  suit  in  his  own 
name,  ^fartin  v.  Dist.  of  Columbia. 
26  App.  D.  C.  146. 

^"  East  Tennessee  &c.  R.  Co.  v. 
Love,  3  Head.  (Tenn.)  63;  Corey  v. 
Probate  Judge,  56  Mich.  524,  23 
N.  W.  205.  See  also  Colorado 
Cent.  R.  Co.  v.  Allen,  13  Colo.  229, 


!»:J7 


PROCEDURE    IN    A1'1'R(J1'R1ATI0N    CASES 


§1312 


to  be  sound  doctrine,  where  the  title  is  wholly  in  the  one,  for  we 
think  an  inchoate  rij^ht  is  not  such  a  riia;"ht  as  entitles  the  ])erson 
possessed  of  it  to  be  made  a  i)arty  in  ])r()ceedings  under  the  riiii'ht 
of  eminent  domain.''* 

§  1312.  Parties — Joinder — Effect  of  failure  to  join. —  If  tlie 
title  is  doubtful,  all  persons  claiming'  an  interest  should  be  made 
parties."'"  I^roceedings  in  which  a  necessary  party  was  not  joined 
are  not  binding  as  to  such  party. ''^'     But,  according  to  the  weight 


22  Pac.  605.  Some  authorities  hold 
tliat  tlic  title  to  land  held  in  fee  by 
the  husband  can  be  divested  with- 
out makini>-  the  wife  a  party.  Ran- 
dall \-.  'i'c.xas  Cent.  R.  Co.,  63  Tex. 
586:  Wheeler  v.  Kirtland,  27  N.  J. 
Eq.  5.i4.  See  Weaver  v.  Gregg,  6 
Ohio  St.  547,  67  Am.  Dec.  355. 
After  the  death  of  the  husband,  hi> 
widow  is  a  necessary  party  to  the 
Condemnation  of  land  in  which  her 
right  of  dower  has  not  been  other- 
wise divested.  Columbia  &c.  Bridge 
Co.  V.  Geise,  34  N.  J.  L.  268:  New 
Orleans  &c.  R.  Co.  v.  Frederic,  46 
Aliss.  1.  In  Colorado,  it  is  neces- 
sary to  join  both  husband  and  wife 
as  defendants  in  a  condemnation 
proceeding.  Colorado  &c.  R.  Co. 
V.  Allen,  13  Colo.  229,  22  Pac.  605. 

^'8  Venable  v.  Wabash  &c.  R.  Co., 
112  :\Io.  103,  20  S.  W.  493,  18  L.  R. 
A.  68,  71,  quoting  Elliott  Roads 
and  Streets,  108:  Baker  v.  Atchison 
&c.  R.  Co.,  122  Mo.  396.  30  S.  W. 
301;  Chouteau  v.  Missouri  Pac.  R. 
Co.,  122  Mo.  375,  22  S.  W.  458,  30 
S.  W.  299. 

•■^"Bentonville  &c.  R.  Co.  v. 
Stroud.  45  Ark.  278.  See  also  Mc- 
Curdy  v.  Chestnut  Hill  R.  Co.,  8 
Weekly  Notes  Cas.  (Pa.)  143: 
Wade  V.  Hennessy,  55  \'t.  207: 
Charleston  &c.  Co.  v.  Conistock,  36 


W.  Va.  263.  15  S.  E.  69.  The  fact 
that  one  owner  is  omitted  does  not 
affect  the  validity  of  the  proceed- 
ings as  to  those  who  are  made 
parties  unless  the  statute  expressly 
requires  all  parties  in  interest  to 
be  joined  in  a  single  proceeding. 
State  V.  Easton  &c.  R.  Co.,  36  N. 
J.  L.  181.  In  some  cases  the  fact 
that  proceedings  were  void  as  to 
one  party  in  interest  has  been  held 
to  invalidate  them  as  to  all.  An- 
derson V.  Pemberton,  89  Mo.  61,  1 
S.  W.  216;  Brush  v.  Detroit,  32 
Mich.  43. 

6"  Detroit  &c.  R.  Co.  v.  Detroit. 
49  Mich.  47,  12  N.  W.  904;  Smith 
V.  Chicago  &c.  R.  Co.,  67  111.  191: 
Indiana  &c.  R.  Co.  v.  Conness,  184 
111.  178,  56  N.  E.  402;  Charleston 
&c.  R.  Co.  V.  Hughes,  105  Ga.  1,  30 
S.  E.  972,  70  Am.  St.  17.  Under  a 
statute  providing  that,  in  condem- 
nation proceedings  by  a  telegraph 
company  to  obtain  a  right  of  way 
along  a  railroad  right  of  way.  it  is 
sufficient  to  give  jurisdiction  if  the 
corporation  owning  the  easement 
is  made  a  party  defendant,  but  that 
only  the  interest  of  the  parties  be- 
f')re  the  court  shall  bo  condemned 
in  such  proceedings,  it  has  been 
held  that  the  owner  of  the  fee,  who 
is  not  a  party  to  such  proceedings. 


s;  i:n- 


KAILKOADS 


938 


of  aulhorit}".  this  will  not  ncccssuril}-  invalidale  the  proceeding's 
as  against  those  who  \vere  properly  made  parties/'^  Where  the 
corporation  had  in  good  faith  condemned  the  title  of  all  persons 
of  whose  interest  it  had  any  knowledge,  and  was  proceeding  in 
i;'ood  faith  to  build  its  road,  it  was  held  that  a  court  of  equit)' 
should  refuse  to  enjoin  the  construction  of  the  road  at  the  suit  of 
(jue  not  made  a  i)art}  if  the  corporation  would  execute  a  sufficient 
l)ond  to  insure  the  speedy  condemnation  of  the  complainant's  in- 
terests and  payment  of  his  damages."'-  In  a  proceeding  against 
an  infant,  it  is  usual!}'  necessary  that  he  l)e  personally  served 
with  notice,  and  that  his  interests  be  actively  defended  1)y  a 
guardian  ad  litem  appointed  b}'  the  court."'  Unless  the  statute 
provides  otherwise,  all  persons  ha\  ing  an  interest  in  the  land 
sought  to  be  taken  may  be  joined  in  a  single  proceeding  although 


is  not  affected  by  a  judgment  of 
condemnation  against  tb.c  railroad 
company.  Phillips  v.  Postal  Tel. 
Cable  Co.,  130  N.  Car.  513,  41  S.  K. 
1022,  89  Am.  St.  868,  judgment  re- 
versed on  rehearing,  42  S.  E.  587. 
State  V.  Easton  &c.  R.  Co.,  36  N.  J. 
L.  181;  Garmoe  v.  Sturgeon,  65 
Jovva  147,  21  N.  W.  493;  Columbus 
&c.  R.  Co.  V.  Witherow,  82  Ala. 
190,  3  So.  23;  Hagar  v.  Brainerd,  44 
\' t.  294. 

•■1  St.  Louis  &c.  R.  Co.  v.  Postal 
&c.  Co.,  173  111.  508,  51  N.  E.  382: 
Indiana  &c.  R.  Co.  v.  Conness,  184 
111.  178,  56  N.  E.  402;  Stevens  v. 
Norfolk,  46  Conn.  227;  Houston 
&c.  R.  Co.  V.  Postal  &c.  Co.,  18 
Te.x.  Civ.  App.  502,  45  S.  W.  179; 
State  v.  Super.  Ct.  King  County, 
31  Wash.  445,  72  Pac.  89,  66  L.  R. 
A.  897  and  note.  See  also  Row- 
land V.  Mercer  County  Trac.  Co., 
90  N.  J.  L.  82,  102  Atl.  814.  But 
compare  Grand  Rapids  &c.  R.  Co. 
V.    Alley,    34    'SWch.    16;    Morgan's 


Eonisiana  I'vrc.  R.  Co.  v.  Bourdicr. 
1   .Mc(}loin    (La.)  232. 

f'=  Columbus  &c.  R.  Co.  v.  With- 
erow, 82  Ala.  190,  3  So.  23.  Any 
considerable  delay  on  the  part  of 
a  land-owner  in  asserting  his  rights 
will  be  sufficient  reason  to  refuse 
an  injunction  restraining  the  op- 
eration of  the  railroad  across  his 
land,  after  the  rights  of  the  public 
have  intervened.  Whittlesey  v. 
Hartford  &c.  R.  Co.,  23  Conn.  421. 
See  Richards  v.  Des  Moines  Val- 
ley R.  Co..  18  Iowa  259;  Irish  v. 
Burlington  &c.  R.  Co.,  44  Iowa 
380:  Torrey  v.  Camden  &c.  R.  Co., 
18  N.  J.  Eq.  293;  Stretton  v.  Great 
Western  &c.  R.  Co.,  40  I,.  T.  Eq. 
50. 

'^2  Hotchkiss  V.  Auburn  &c.  R. 
Co.,  36  Barb.  (N.  Y.)  600;  Missouri 
Pacific  R.  Co.  V.  Carter,  85  Mo. 
448;  Clarke  v.  Gilmanton,  12  N.  H. 
515.  But  see  New  Orleans  &c.  R. 
Co.  V.  Hemphill,  35  Miss.  17. 


939 


PROCEDURE  IN  APPROPRIATION  CASES 


§  1313 


their  interests  are  separate."'  But  a  provision  that  "any  number 
of  owners,  residents  in  the  same  county  or  circuit,  may  be  joined 
in  one  petition,"  was  held  to  impliedly  forbid  the  joinder  of  those 
not  residing;"  in  the  same  county  or  circuit. "^^ 

§  1313  (1026).  Parties — Amendments. — There  is  a  diversity 
cf  opinion  as  to  the  right  to  amend,  some  of  the  cases  holding  that 
as  the  proceeding's  are  in  invitum,  material  amendments  can  not 
l>c  allowed,  but  other  cases  take  a  more  liberal  view  and  allow 
amendments.*'*'  Thus  it  has  been  held  that  the  proceedings  may 
be  amended  at  any  time  upon  cause  shown,*'^  either  by  the  addi- 
tion of  new  parties,''^  or  by  discontinuing  as  to  those  found  to 
have  no  interests.*'^  Where  there  is  a  change  of  interest  the 
company  acquiring  the  interest  may  be  substituted  as  petition- 
er.'"    The  tendencv  of  the  modern  cases  is  to  liberallv  extend 


''*  Hot  Springs  R.  Co.  v.  Tj^Ier, 
36  Ark.  205;  Evergreen  &c.  Assn. 
V.  Reecher,  53  Conn.  551.  5  Atl. 
353:  Webster  v.  Holland.  58  Maine 
168:  Goodwin  v.  Gibbs.  70  Maine 
243:  Proprietors  &c.  v.  Nashua 
&c.  R.  Co.,  10  Cush.  (Mass.)  385: 
Reed  v.  Hanover  Branch  R.  Co.. 
105  Mass.  303;  ]\IcKee  v.  St.  Louis, 
17  Mo.  184;  Troy  &c.  R.  Co.  v. 
Cleveland,  6  How.  Pr.  (N.  Y.) 
238:  Railroad  v.  Boyer.  13  Pa.  St. 
497:  Getz  v.  Philadelphia  &c.  R. 
Co..  105  Pa.  St.  547:  Colcough  v. 
Nashville  &c.  R.  Co..  2  Head 
(Tenn.)  171.  Persons  who  are 
jointly  interested  in  the  land  should 
be  joined  as  defendants.  East 
Saginaw  &c.  R.  Co.  v.  Benham, 
28  Mich.  459:  Grand  Rapids  &c.  R. 
Co.  V.  Alley.  34  :\lich.  16;  South- 
ern Pacific  R.  Co.  V.  Wilson,  49 
Cal.  396:  Ashby  v.  Eastern  R.  Co.. 
5  Met.  (Mass.)  368,  38  Am.  Dec. 
426  and  note;  Whitcher  v.  Benton, 
48  N.  PI.  157,  97  Am.  Dec.  97. 
'■'■''  Quincy  &c.  R.  Co.  v.  Kellogg, 


54  Mo.  334.  See  as  to  defendants, 
Kansas  City  Interurban  R.  Co.  v. 
Nelson,  193  :\Io.  297,  91  S.  W. 
1036. 

«G  Littlcfield  V.  Boston  &c.  R. 
Co.,  65  iNIaine  248;  Colorado  &c. 
R.  Co.  V.  Allen,  13  Colo.  229,  22 
Pac.  605. 

""  Chicago  &c.  R.  Co.  v.  Gates. 
120  111.  86.  11  N.  E.  527;  Davidson 
V.  Boston  &c.  R.  Co..  3  Cush. 
CMass.)  91;  New  York  &c.  R.  Co., 
Tn  re,  26  Hun  (N.  Y.)  194;  Bow- 
man V.  Venice  &c.  R.  Co.,  102  111. 
459.  See  generally  Quincy  &c.  R. 
Co.  V.  Kellogg,  54  I\Io.  334;  Mis- 
souri Pacific  R.  Co.  V.  Wilson,  45 
Mo.  App.  1;  Wood  v.  Commis- 
sioners. 122  Mass.  394;  Fitch  v. 
Stevens,  2  Mete.  (Mass.)   505. 

«s  New  York  &c.  R.  Co..  Matter 
of.  26  Hun  (N.  Y.)  194:  Wood  v. 
Comrs.  of  Bridges,  122  Mass.  394. 

•5^  Missouri  Pac.  R.  Co.  v.  Car- 
ter. 85  Mo.  448. 

70  California  &c.  R.  Co.  v. 
Hooper,   76  Cal.   404,   18  Pac.   599, 


§  1314  RAILROADS  940 

the  rii^lit  lo  make  anu-ndmcnts,  and  this,  we  think,  is  the  true 
doctrine.''  The  right  lo  amend  should  not.  however,  he  so  ex- 
tended as  to  work  injustice  to  a  party  by  unjustly  delaying-  pro- 
ceedings or  depriving  him  of  reasonable  0])portunity  to  prepare 
lor  trial. "- 

§  1314  (1027).  Effort  to  agree. — In  most  of  the  states  rail- 
road companies  are  only  authorized  to  resort  to  an  assessment  of 
the  damages  for  land  taken  under  the  ]>o\\er  of  eminent  domain 
after  an  ineffectual  attcni])!  to  agree  ui)on  a  ])rice  for  its  purchase. 
The  decisions  upon  this  subject  are  numerous  and  not  entireh' 
harmonious.'-'  In  some  of  the  states  the  statutes  expressly  re- 
(luire  the  petition  for  such  an  assessment  to  show  that  the  com- 
jiaii}'  has  been  unable  to  acquire  title  to  the  land  sought,  and  the 
reason   of  its  in<abilit\'   to  do   so.  and   under   such   a   statute   the 


Sec     f^cncrally     Rochester     &c.     R.  of,  67   X.   \.  371:   Roj-d   v.   Neglcy, 

Co..    In   re.   54  TTun   634,  26   X.   Y.  40    I'a.    St.    377;    Pennsylvania    &c 

S.  753.  R.   Co.  V.   Runnel).  81   Pa.  St.  414. 

'1  The    text    is    quoted    with    ap-  A   petition  can  not  be  so  amended 

proval    in    Houston    &c.    R.    Co.    v.  as   to  l)rino-  the  proceedin!?s   under 

Postal   Tel.    &c.    Co.,    18   Tex.    Civ.  a  statute  different  from  that  under 

.•\pp.  502.  45   S.   W.   179,   182.     See  whicli  they  were  commenced.     Pe- 

also   New   York   Munic.   Ry.    Corp.  oria    ^c.    R.    Co.    v.    Black.    58    111. 

V.     Parkhill.     145     N.     Y.     S.     447:  33.      And    it    is    lield    tliat    a    notice 

Coons  V.  McKees  Rocks  Borous^li.  cannot  be  amended  while  the  mat- 

243  Pa.  340,  90  Atl.  141.  ter  is  before  the  assessors.     Nash- 

"-  Southwestern     &c.    R.    Co.    v.  ville    &c.    R.    Co.    v.    Western    Un. 

Hickory    &c.    Ditch    Co..    18    Colo.  Tel.  Co.,  142  Ga.  525,  83  S.  E.  123; 

489,  33  Pac.  275:  Contra  Costa  Coal  ""-Reed   v.    Ohio   &c.   R.   Co..   126 

Mines  R.  Co.  v.  Moss,  23  Cal.  323:  111.    48,    17    X.    E.    807.    36    Am.    & 

Windham    v.    Litchfield,    22    Conn.  ]'-nj>-.  R.  Cas.  234;  Suburban  R.  Co. 

226:    Coohiian   v.   Fleming?,   82   Ind.  v.     Metropolitan     &c.     El.     R.     Co., 

117:   Midland  &c.  R.  Co.  v.  Smith,  193    111.  217.  61    X.   E.    1090:   .Swin- 

109  Ind.  488,  9  X.  E.  474:  Chica,£?o  ney  v.  Fort  Wayne  &c.  R.  Co..  59 

&c.  R.  Co.  V.  Hunter,  128  Ind.  213,  Ind.   205;    Lake    Shore    &c.    R.    Co. 

27  N.  E.  477:  Eslich  v.  :\rason  City  v.   Cincinnati   &c.    R.   Co..   116   Tnd. 

itc.  R.  Co..  75  Iowa  443,  39  N.  W.  578.   19  N.  E.  440.  37  Am.   &  Eur. 

700:   Grand  Junction   &c.   R.  Co.  v.  R.  Cas.  430:   Council   Bluffs  &c.   R. 

Comity     Com..     14    Gray     (Mass.)  Co.    v.    Bentley,  .62    Iowa    446,    17 

553:   Youns  v.   Laconia.   59   N.    H.  X.  W.  668,  20  Am.  &  Eng.  R.  Cas. 

534:    Prospect    &:c.    R.    Co.,    Matter  401:    :Minneapolis    &c.    R.    Co.    v. 


941                              PROCEDURE  IN  APPROPRIATION  CASES  §  1314 

reason  should  \)v  slated  in  llic  petition.''  liy  some  of  the  courts 
it  is  held  that  inability  t(;  ag'ree  is  a  jurisdictional  fact  in  the 
absence  of  which  the  court  can  not  entertain  a  proceeding'  to  con- 
demn  pro])erty,"'  but  there   are  decisions   asserting  a   different 

Chicago  &c.  R.  Co.,  116  Iowa  681,  X.  T.  1..  227:  New  York  &c.  R.  Co., 
88  N.  W.  1082;  Grand  Rapids  &c.  Matter  of.  62  Barb.  (X.  Y.)  85; 
R.  Co.  V.  Weiden,  70  Mich.  390.  .\dams  v.  Saratoga  &c.  R.  Co.,  10 
38  X.  W.  294;  Fort  Street  &c.  Co.  X.  Y.  328:  T.ockport  &c.  R.  Co.. 
V.  Jones.  83  Mich.  415,  47  X.  W.  .Matter  of.  77  X.  Y.  557,  563:  Pow- 
349;  r^rartiuc'ttf  &c.  R.  Co.  v.  Long-  crs  v.  Hazelton  &c.  R.  Co.,  33  Ohio 
.vcar.  133  Midi.  94.  94  X.  W.  670,  St.  429;  Orc-on  R.  &c.  Co.  v.  Ore- 
10  Dot.  T,c-  X.  ni;  Chicago  &c.  gon  Real  Estate  Co..  10  Ore.  444; 
R.  Cn.  V.  Young.  96  Mo.  39,  8  S.  Reitcnliaiigh  v.  Chester  Valley  R. 
W.  776;  Wilkinson  v.  St.  I.anis  Co..  21  Pa.  St.  100.  See  also  South 
&c.  Co.,  102  :^[o.  130.  14  S.  W.  177:  Dakota  Cent.  R.  Co.  v.  Chicago  &c. 
State  V.  Xati.uial  Docks  &c.  Co..  R.  Co.,  141  Fed.  578:  Howard 
55  X.  J.  ]..  194,  26  Atl.  145:  Xcw  Realty  Co.  v.  Paducah  &c.  R.  Co.. 
York  &c.  R.  Co.  V.  Godwin.  12  182  Ky.  494.  206  S.  W.  774.  In  a 
Ahl).  Pr.  X.  .S.  (X.  ^  .)  21:  Allen  case  where  a  court  in  condemna- 
V.  Wilmington  &c.  R.  Co..  102  X.  tion  proceedings  by  a  railway  corn- 
Car.  381.  9  S.  E.  4:  Hickory  v.  pany  decided  on  the  issue  wheth- 
Southern  R.  Co.,  137  X"'.  Car.  189.  er.  before  the  commencement  of 
49  S.  E.  202:  Oregon  &c.  R.  Co.  the  proceedings,  the  company  had 
V.  Oregon  &c.  Co.,  3  Ore.  178;  made  a  bona  fide  effort  to  acquire 
Xeal  V.  Pittsburgh  &-c.  R.  Co..  2  flic  land  by  offering  a  fair  price 
Grain  (Pa.^)  137:  Sullivan  v.  Mis-  therefor,  that  on  the  evidence  of- 
souri  &c.  R.  Co.,  29  Tex.  Civ.  .\pp.  fered  it  was  a  case  for  the  jury,- 
429,  68  S.  W.  745.  Init  that   the   land-owner  might   la- 

^•*  Marsh,    Matter    of.    71     X.    Y.  ter     offer     additional     evidence     to 

^^^-  perfect  his  record,  it  was  held  that 

''•  Lincoln  v.   Colusa   Co..  28   Cal.  the  refusal   of  another  judge   liear- 

662;    Williams    v.    Hartford    &c.   R.  hig    the    case    to    hear    such    addi- 

Co..   13   Conn.  397;   Chicago  &c.  R.  tional    testimony   did    not   oust   the 

Co.    V.     Chamberlain,    84    111.    333:  court  of  its  jurisdiction  to  impanel 

Reed   v.   Ohio   &c.   R.    Co.,    126   Til.  the   jury,  and   that  the   decision   of 

48,   17   X"^.    E.  807;    Lake   Shore   &c.  the  court  that  it  was  a  proper  case 

R.    Co.    v.    Cincinnati    &c.    R.    Co.,  for    the    jury    was    a    decision    that 

116   Ind.   578.   19   X.   E.   440;   Whis-  the  company  had  made  a  bona  fide 

ler   v.   Drain   Conirs..  40  Mich.   5*^^)1:  effort  to  acquire  the  land  necessary 

Ells  V.  Pacific   R.  Co.,  51    Mo.  200;  as    a    condition    ])reccdent    for    the 

Kansas    City   &c.    R.   Co.   v.    Camp-  impaneling  of  a  jury.     Detroit  &c. 

bell.  62  Mo.  585;  Doughty  v.  S.mii  •  R.   Co.   v.    Hall,   133   Mich.  302.   94 

erville  &c.  R.  Co.,  21  X.  J.  T..  442:  X.  W.  1066. 
Coster    V.    Xew   Jersey    R.    Co.,    23 


N  1314 


RAILROADS 


942 


doctrine.'"  In  some  states  where  an  attempt  to  ag-ree  is  made 
necessary,  proceedings  in  which  no  attempt  to  agree  was  showri 
have  been  held  void,  even  upon  a  collateral  attackJ^  But  it  has 
been  held  that  the  fact  that  there  wa;^  no  failure  to  agree  as  al- 
leged in  the  petition  was  not  ground  .'or  an  injunction  against 
entry  thereunder  since  the  lar  -I-owner  had  a  perfect  remedy  at 
law  by  trial  in  the  condemnation  proceeding."*  And  it  is  held 
that  the  efifort  to  agree  must  extend  to  all  the  matters  sought  to 
be  settled  by  the  condemnation  proceedings.'^  The  general  rule 
is  that  the  petition  must  allege  an  unsuccessful  attempt  to  agree. *^ 
It  is  generally  sufficient  to  aver  the  inability  to  agree  in  the  Ian- 


""  It  was  held  in  Illinois  that 
such  a  provision  in  a  statute  was 
directory.  Hall  v.  People,  57  111. 
307.  And  in  Massachusetts  and 
Tennessee,  it  has  been  held  that 
under  the  statutes  in  question,  one 
of  the  parties  •:ould  elect  not  to 
agree,  and  begin  proceedings  forth- 
with. Aetna  Mills  v.  Waltham, 
126  Mass.  422;  Bigelow  v.  Missis- 
sippi Central  &c.  R.  Co.,  2  Head 
(Tenn.)  624.  See  Chicago  &c.  R. 
Co.  V.  Randolph  &c.,  103  Mo.  451, 
•15  S.  W.  437.  In  Farnsworth  v. 
Lime  Rock  R.  Co.,  83  Maine  440, 
22  Atl.  Z72,,  it  is  held  that  it  is  not 
fatal  to  fail  to  allege  a  failure  to 
agree  as  it  will  be  presumed.  See 
also  Texas  Midland  R.  Co.  v. 
Southwestern  Tel.  Co.,  24  Tex. 
Civ.  App.  198,  58  S.  W.  152. 

"Whitely  v.  Platte  County,  7Z 
Mo.  30;  Cunningham  v.  Pacific  R. 
Co.,  61  Mo.  33;  Moses  v.  St.  Louis 
Sectional  Dock  Co.,  84  Mo.  242; 
Adams  v.  Saratoga  &c.  R.  Co.,  10 
N.  Y.  328.  Contra.  Ney  v.  Swin- 
iiey,  36  Ind.  454.  See  Lake  Shore 
&c.  R.  Co.  V.  Cincinnati  &c.  R. 
Co.,  116  Ind.  578,  19  N.  L.  440; 
Borland  v.   Mississippi   &c.   R.   Co., 


8  Iowa  148;  Oregonian  &c.  R.  Co. 
v.  Hill,  9  Ore.  377;  Southern  111. 
&c.  Co.  V.  Stone,  194  Mo.  175,  92 
S.   W.  475. 

78  St.  Louis  &c.  R.  Co.  V.  South- 
western Tel.  Co.,  121   Fed.  276. 

"^  Lake  Shore  &c.  R.  Co.  v.  Cin- 
cinnati &c.  R.  Co.,  116  Ind.  578. 
19  N.  E.  440. 

so  Portland  &c.  Co.  v.  Bobb,  88 
Ky.  226,  10  S.  W.  794;  Contra 
Costa  R.  Co.  V.  :\Ioss,  23  Cal.  323: 
Lockport  &c.  R.  Co.,  Matter  of, 
77  N.  Y.  557;  Oregon  R.  &c.  Co. 
V.  Oregon  &c.  Co.,  10  Ore.  444; 
O'Hara  v.  Pennsylvania  R.  Co.,  2i 
Pa.  St.  445;  Darlington  v.  United 
States,  82  Pa.  St.  382,  22  Am.  Rep. 
766.  In  Pennsylvania  R.  Co.  v. 
Porter,  29  Pa.  St.  165,  the  peti- 
tioner was  permitted  to  amend  its 
petition  by  inserting  an  allegation 
of  inability  to  agree  upon  tlie  com- 
pensation. See  Cunningham  v. 
Pacific  &c.  R.  Co..  61  Mo.  2>i\  Gear 
V.  Dubuque  &c.  R.  Co..  20  Iowa 
523,  89  Am.  Dec.  550;  Toledo  &c. 
R.  Co.  V.  Detroit  &c.  R.  Co.,  62 
Mich.  564,  29  N.  W.  500,  4  Am.  St. 
875,  28  Am.  &  Eng.  R.  Cas.  272; 
Kansas   City  &c.    R.   Co.  v.   Camp- 


943 


PUOCKDUKK   IN    APi'KOl'HlATlOX    CASES 


§  l:n4 


guage  t)f  tlu'  statute. '^^  and  it  is  not  necessary  to  set  forth,  in  spe- 
cific detail,  wliat  has  Ijeen  done.®-  The  general  averment  of  an 
inril)ilit\  "to  acquire  the  right  of  way  from  said  owners  by  v(j1- 
untary  grant  or  purchase"  was  held  to  be  a  substantial  compli- 
ance with  a  statute  authori/.itig  condemnation  only  in  case  the 
compensation  could  not  be  agreed  upon.*'-'  And  under  a  similar 
statute  an  allegation  that  the  parties  were  unable  to  agree  as  to 
the  right  of  way  was  held  sufficient  after  verdict.®'  The  aver- 
ment of  an  effort  to  agree  should,  however,  be  ])ositive  and  not 
merely  by  \\-ay  of  recital.®'  Proof  must  be  made  of  the  attempt 
to  agree  in  like  manner  with  the  other  facts  averred,®*^  though  it 
has  been  said  that  a  failure  to  traverse  the  allegation  of  such  an 
tittempt  waived  the  necessity  for  proof  upon  this  point.®"  The 
affidavit  of  an  agent  of  the  corporation  has  been  held  sufficient 
I)rima  facie  evidence  that  it  could    not    agree    with    the    land- 


bell,  62  Mo.  585:  St.  Louis  &c.  R. 
Co.  V.  Lewright,  113  Mo.  660,  21 
S.  W.  210;  Oregon  &c.  R.  Co.  v. 
Oregon  &c.  Co..  10  Ore.  444;  Phil- 
adelphia &c.  Co.,  In  re,  7  Phila. 
(Pa.)  461. 

^1  Cory  V.  Chicago  &c.  R.  Co., 
100  Mo.  282.  13  S.  W.  346;  Lock- 
port  &c.  R.  Co..  Matter  of,  11  N. 
Y.  557:  Reitenbaugh  v.  Chester 
Valley  R.  Co.,  21  Pa.  St.  100. 

s2  Suburban  R.  T.  Co.,  Matter 
of.  38  Hun  (N.  Y.)  553;  Hannibal 
&c.  R.  Co.  v.  Muder,  49  Mo.  165; 
United  States  v.  Oregon  R.  i*tc. 
Co.,  16  Fed.  524.  See  also  St. 
Louis  &c.  R.  Qo.  V.  Postal  Tel. 
Co.,  173  111.  508.  51  N.  E.  382: 
Colorado  Fuel  &c.  Co.  v.  Four 
Mile  R.  Co.,  29  Colo.  90,  66  Pac. 
902;  Cincinnati  &c.  R.  Co.  v.  Bay 
City  &c.  R.  Co.,  106  Mich.  473.  64 
N.  W.  471. 

^3  Bowman  v.  Venice  &c.  R.  Co., 
102  111.  459:  Chicago  &c.  R.  Co.  v. 
Chamlierlain.    84    111.   ZZZ. 


^*  Oregon  R.  &c.  Co.  v.  Oregon 
."tc.  Co.,  10  Ore.  444. 

S5  Lake  Shore  &c.  R.  Co.  v.  Cin- 
cincinnati  &c.  R.  Co.,  116  Ind  578, 
X.   E.   440. 

^•5  Gilmer  v.  Lime  Point,  19  C;il. 
47;  Williams  v.  Hartford  &c.  R. 
Co..  13  Conn.  397:  Marsh.  Matter 
of,  71  X.  Y.  315:  Schenectady  R. 
Co.  V.  Lyons,  41  Misc.  506.  85  X. 
Y.  S.  40;  Powers  v.  Hazelton  &c. 
R.  Co.,  ZZ  Ohio  St.  429;  Oregon  R. 
&c.  Co.  V.  Oregon  &c.  R.  Co.,  10 
Ore.  444.  But  see  Southern  111. 
il'c.  Co.  V.  Stone,  194  !Mo.  175.  92 
S.  W.  475. 

s"  Ward  V.  Minnes'ota  &c.  R.  Co., 
119  111.  287.  10  X.  E.  365;  Presi- 
dent &c.  V.  Dif¥ehach.  1  Yates(Pa.) 
367.  In  Cnr}-  v.  Chicago  &c.  R. 
Co..  100  ^\i^.  282.  13  S.  W.  346.  the 
plaintiff  sought  to  set  aside  as  void 
condemnation  proceedings  based 
upon  a  petition  which  contained 
ihe  averment  that  the  company 
'can  not  agree  with  the  defendants 


§  1315  RAILROADS  944 

owner.***  The  attempt  to  agree  must  be  made  in  good  faith.  l)ut 
an  attempt  to  buy  at  A\hat  the  ctjmpany  deems  a  reasonable  i)rice 
has  been  held  sufficient.**^  And  where  no  answer  was  returned  to 
either  of  two  propositions  submitted  to  the  hind-owner,  tlie  com- 
pany was  ])ermitted  to  condemn.'^*'  Where  several  estates  in  the 
same  land  w-ere  held  by  different  persons  it  was  held  that  an  in- 
ability to  agree  with  the  owner  of  the  fee  was  sufficient.'"  So  it 
has  been  held  that  an  efl'ort  need  not  be  made  to  obtain  the  con- 
sent of  the  mortgagee  wdiere  the  owner  of  the  premises  has  re- 
fused his  consent."- 

§  1315    (1028).      Petition    or    articles    of    appropriation. — The 

pleading  on  the  part  of  a  party  seeking  to  secure  the  condemna- 
tion of  land  is  usuall_\-  called  a  petition,  but  in  some  states  it  is 
called  the  "article  of  ap])ropriation."  \Ve  shall  use  the  term 
"petition"  as  designating  the  pleading  or  instrument  filed  by  a 
{)art}-  who  seeks  to  secure  the  condemnation  of  j^-ivate  propertv. 
According  to  some  of  the  authorities  a  petition  for  the  assess- 
ment  of  damages  constitutes  a   complaint,    the    sufficiency    of 

us  to  tlie  amount  of  compensation  &c.   R.    Co.,    In   re,   110   N.   Y.    119, 

to  be  paid."   The  court  said:    "This  17  N.   E.  678;  Niagara  &c,  R.  Co., 

averment    conformed    to    the    gen-  In  re,  108  N.  Y.  375.  15  N.  E.  429: 

eral  law,  was  sufficient,  and  it  was  Eort    Street    Sec.    Co.    v.    Jones,    83 

not  necessary  to  sustain  this  aver-  Midi.    415,    47    N.    W.    349;    West 

mcnt  of  the  petition  by  oral  testi-  Virginia    &c.    Co.    v.    Volcanic    &c. 

mony:    nor    was    it    competent    for  R.,   5    W.   Va.   382.      See    Coster   v. 

the  plaintiff  to  nullify  the  effect  of  New  Jersey  &c.  R.  Co.,  23  N.  J.  L. 

the    record    by    denying    the    truth  227. 

of   such  assertion."  «"  Prospect      Park     tK:c.     K.     Co.. 

88  Doughty  V.  Somerville  R.  Co.,  flatter  of,  67  N.  Y.  371. 

21   N.  J.  L.  442.     Proof  of  inability  "«  West    Virginia    Trans.    Co.    v. 

to  agree  with  an  agent  not  disclos-  Volcanic    Oil    &c.    Co.,    5    W.    Va. 

ing  his  principal's  identity  has  been  382. 

held  insufficient.    Pittsburg  &c.  Ry.  ">  Toledo   &c.   R.   Co.   v.   Dunlap, 

Co.  V.  Gage,  280  111.  6.39,  117  X.   !■.  47   Mich.   456,   11    N.  W.  271.     See 

726.      As    to    proving   an    effort   to  also   Thomas   v.    St.    Louis    (S:c.    R. 

agree,  see  Ward   v.   .Minnesota   &'^  Co.,   164  III.  634,  46  N.   E.  8. 

R.  Co..  119   111.  287,  10  N.  E.  365;  ^2  Coles  v.  Midland  Tel.  &c.  Co., 

Bridwell  v.  Gate  City  &c.  Co.,  127  67  N.  J.  L.  490,  51   Atl.  448. 
Ga.   520,   56   S.    E.   624;    Rochester 


945 


PROCKIMKK   IN    Al'l'IKJl'UIATION   CASES 


§  1315 


which  may  l)c  tested  as  in  ordinary  actions,'^''  but  additional 
pleadings  are  not  contemplated  under  many  of  the  statutes,  and 
it  has  been  held  that  if  any  are  filed,  they  may  be  stricken  from 
tlic  files  on  motion."*  The  general  rule  is  that  until  a  proper  pe- 
tition is  filed,  the  court  has  no  power  to  take  any  action  in  the 


'■'••  Cluirch  V.  Grand  Rapids  &c. 
R.  Co.,  70  Tnd.  161.  In  Denver 
&c.  R.  Co.  V.  Lamborn,  8  Colo. 
380,  8  Pac.  582,  it  is  said  that  pro- 
ceedings to  condemn  land  are  spe- 
cial proceedings,  and  are  governed 
hy  different  rules  of  pleading  and 
practice.  The  time  and  way  to 
object  for  want  of  proper  title, 
parties,  etc.,  is  by  exceptions  to 
t'le  report  of  the  appraisers  when 
it  is  filed.  Camp  v.  Coal  Creel: 
&c.  R.  Co..  11  Lea  (Tenn.)  705.  A 
petition  for  condemnation  for  a 
right  of  way,  containing  an  accu- 
rate description  of  the  property, 
and  alleging  the  authority  of  the 
petitioner  to  take  the  property,  the 
names  of  the  occupants  and  the 
owners,  and  the  purpose  of  the 
taking,  and  that  petitioner  has  lo- 
cated its  line  in  good  faith,  is  a 
su^'^cicnt  compliance  with  Rev.  St. 
§  1544.  Florida  Cent.  &c.  R.  Co. 
V.   Bell,  43   Fla.  319,  31   So.  259. 

n*  Smith  v.  Chicago  &c.  R.  Co., 
105  111.  511;  Jnhnson  v.  Freeport 
X-c.  R.  Co..  Ill  111.  41.1.  See  also 
Fayetteville  &c.  R.  Co.  v.  Hunt, 
51  .-Xrk.  330,  11  S.  W.  418:  St.  Louis 
&c.  R.  Co.  V.  Postal  &c.  Co.,  173 
111.  508.  51  N  E.  382:  New  Orleans 
c^c.  R.  Cn.  V.  AfcNeelv.  47  La 
Ann.  1298,  17  So.  798:  Sheldon  v. 
.\iinneapoli.>^  c'tc.  R.  Co.,  29  Minn. 
318.  13  X.  W.  134.  But  see  Reed 
V.  Ohio  c'tc.  R.  Co..  126  Til.  48.  17 
X.  F.  807:  Decatur  v.  Grand  Rap- 
ids  &c.   R.   Co.,    146   Ind.    577,   45 


N.  E.  793:  Mellichar  v.  Iowa  City, 
116  Iowa  390,  90  N.  W.  86.  In 
some  jurisdictions  provision  is 
made  for  filing  written  objections 
which  may  not  only  operate  as  a 
demurrer  but  may  raise  certain 
issues  of  fact  to  be  determined 
before  appraisers  are  appointed. 
Morrison  v.  Indianapolis  &c.  R. 
Co.,  166  Ind.  511,  76  N.  E.  961,  77 
N.  E.  744.  .And  a  cross-petition 
has  been  held  proper  in  some 
cases.  ^lix  v.  Lafayette  &c.  R. 
Co.,  67  111.  319:  Port  Huron  &c. 
R.  Co.  V.  Voorheis,  50  Mich.  506, 
15  .N.  W.  882.  Under  the  Illinois 
statute,  where  the  interests  of  the 
defendant  are  not  accurately  stated 
in  the  petition,  a  cross-petition 
may  be  filed,  setting  out  fully  his 
interests.  Johnson  v.  Freeport 
&c.  R.  Co.,  116  III.  521,  6  N.  E. 
211.  An  answer  describing  land 
and  claiming  damage  thereto  was 
held  to  answer  the  purpose  of  a 
cross-petition.  Chicago  &c.  R.  Co. 
V.  Hopkins,  90  Til.  316.  At  what- 
ever stage  of  the  proceedings  ad- 
ditional parties  are  made  defend- 
ants to  such  a  proceeding,  they 
may,  after  notice  to  appear,  con- 
test the  appropriation.  Baltimore 
c<tc.  R.  Co.  V.  Pitts1)tn-gh  &c.  R. 
Co.,  17  W.  Va.  812.  An  answer 
is  not  necessary  in  Washington, 
but  the  property-owner  may  show 
value  and  damage  without  it.  Pos- 
tal Tel.  &c.  Co.  v.  Northern  Pac. 
R.  Co.,  211  Fed.  824. 


^'   DH.")  RAILROADS  946 

I)remises.'*^'  Ji^ii'i^><licti(inril  facts  must  l)e  averred.'"'  Proceedings 
to  condemn  property  undi-r  the  power  of  eminent  domain  are 
])urelv  statutor}-.  and  the  statute  must  be  strictly  ])ursued.^'  and 
the  fact  that  all  preliminary  requirements  of  the  statute  have 
1)een  met  should  be  stated  in  the  petition,''*  except  where  the  stat- 
ute provides  what  the  petition  shall  contain.  It  is  com])etent 
lor  the  legislature  to  ])rescribe  what  the  petition  shall  contain, 
r.nd  if  it  conforms  to  the  statutory  requirement  it  is  sufficient.  .V 
sidxstantial  com])liance  \\  ith  the  requirements  of  the  statute,  as 
1"  the  form  and  wo'-ding  of  the  petition,  is  sufficient,"''  but  it  is 
held  that  the  omissi(jn  of  any  averment  required  1)y  the  statute 
\\ill  render  it  fatall}'  defective.^     The  allegations  of  the  i)etition 

"•'''  Smitli   V.    Chicago   &c.    R.    Co..  statute    authorized    the    hind-owner 

105   TIL   511;  Toledo  &c.   R.  Co.  v.  to    petition    for   the   assessment   of 

East  Saginaw  &c.  R.  Co.,  72  ]Mich.  damages,    a    general    statement    of 

206.    40   N.    W.    436:    Flint    &c.    R.  the  fact  that  the  railroad  "angled" 

Co.  V.  Board  &c..  72  ^Ticli.  234.  40  across  his  land  was  held  sufficient- 

X.  W.  448.  ly  definite  to  authorize  the  assess- 

"'■'  Durham    &c.    R.    Co.    v.    Ricli-  ment    of    damages    for    land    upon 

mond   &c.   R.   Co..   106  N.   Car.   16,  which  a  railroad  had  alread}--  been 

10  S.    E.   1041,   44   Am   &   Eng.    R.  constructed.      Martinsville    &c.    R. 

Cas.    168.      See   New   York   &c.    R.  Co.  v.  Bridges,  6  Tnd.  400. 
Co..    In    re,   62   Barb.    (N.    Y.)    85;  i  Grove    St.,    In    re.    61    Cal.    438. 

Norton   V.   Wallkill    &c.   R.   Co..   61  TFailure  to  aver  that  "pul)lic  intcr- 

Barl).    (X.    Y.)    476;    St.    T.ouis    &c.  ests    required"    the    imiMovemcnt.) 

R.    Co.   V.    Eewright,    113   Mo.    660,  Reed  v.   Ohio    &c.   R.   Co.,   126  111. 

21    S.  W.  210;  Trester  v.   Missouri  48,   17  N.   E.  807;    Lake  Shore  &c. 

Pac.  R.  Co.,  33  Nebr.  171,  49  N.  W.  R.    Co.    v.    Cincinnati    &c.    R.    Co., 

1110.  116  Ind.  578.  IQ  N.  E.  440.     (Fail- 

■''  Colorado    Cent.    R.    Co.    v.   Al-  urc  to  aver  an   inability'  to  agree.) 

len.  13  Colo.  229.  22  Pac.  605.  Powers    v.     Irish.    23     Mich.     429; 

»«  Colorado   Cent.    R.    Co.   v.    Al-  Hays    v.    Campbell,     17    Ind.    430. 

len,     13     Colo.    229,    22     Pac.    605;  (Failure  to  state  names  of  owners 

Durham    &c.    R.    Co.    v.    Richmond  of    land    taken.)      Durham    &c.    R. 

^•c.  R.  Co..  106  N.  Car.  16,  10  S.  E.  Co.   v.    Richmond    &c.    R.    Co.,    106 

1041;    Front   &c.   R.   Co.'s   Petition.  N.  Car.  16,  10  S.  E.  1041.     (Failure 

1    Pennew.    (Del.)   370,  41   .^tl.  200.  to  allege   filing  of  map,   giving  no- 

'•'•'  Townsend    v.    Chicago    &c.    R.  tice.  etc.)      Colorado   Cent.   R.   Co. 

Co.,  91   111.  545;  Bowman  v.  Venice  v.  Allen.  13  Colo.  229.  22  Pac.  605. 

&c.    R.    Co.,    102    111.    459;    Indian-  (Xo    averment    of    value    of    prop- 

apolis    &c.    R.    Co.   v.   Christian,   93  erty    sought    to    be     taken.)       See 

Ind.  360;  Stevens  v.  Board  of  Su-  United    States    v.    Oregon    R.    &c. 

pervisors,  41  Iowa  341.    Where  the  Co.,  16  Fed.  524. 


947  PROCEDURE  IN  APPROPRIATION  CASES  §  1315 

should  be  positive  and  not  merely  by  way  of  recital,-  and  the  fact? 
set  forth  must  be  definitely  stated.'  The  petition  must  be  prop 
erly  sii^ned,  and  where  the  statute  requires  verification  it  must 
be  verified  1)y  the  proper  party.*  A  failure  to  give  the  names  of 
the  owners  in  the  petition  has  been  held  to  be  cause  for  de- 
murrer,'' hut  this  defect  may  be  cured  by  amendment.''  It  has 
i^een  held  sufficient  to  give  the  names  and  residences  of  a  num- 
ber of  land-owners,  with  a  description  of  the  property  of  each, 
in  schedules  attached  to  the  jietition."  If  the  name  of  one  joint- 
owner  is  contained  in  the  petition  it  is  sufficient  to  give  the  court 
jurisdiction,  though  wdiere  the  rights  of  one,  in  any  material 
sense,  depend  upon  the  disposition  of  the  case  as  to  the  others, 
each  party  would  have  a  right  to  insist  on  all  the  parties  being 
brought  before  the  court  before  proceeding  to  a  trial.®  Where 
the  petition  avers  ownership  on  the  part  of  a  defendant  he  need 
offer  no  proof  of  his  title,^  but  the  character  of  his  estate  mav  be 

2  Lake  Shore  &c.  R.  Co.  v.  Cin-  S.  E.  171;  Peoria  &c.  R.  Co.  v. 
cinnati  &c.  R.  Co.,  116  Ind.  578,  Laurie,  63  III.  264;  Union  &c.  Co. 
IQ  N.  E.  440.  V.  Frederick,  117  Mo.  138,  21  S.  W. 

3  Hays  V.  Camphell,   17  Ind.  430.  1118,  57  Am.  &  Eng.   R.   Cas.  656; 

*  Harvey  v.  Lloyd,  3  Pa.  St.  331;  California  Southern  R.  Co.  v.  Col- 
Metropolitan  &c.  R.  Co..  In  re,  7  ton  Land  &c.  Co.  (Cal.),  2  Pac.  38. 
N.  Y.  S.  708:  New  York  &c.  R.  «  Russell  v.  Turner.  62  Maine 
Co.,  In  re,  33  Hun  (N.  Y.)  148.  496;  Washington  Ice  Co.  v.  Lay, 
Verification  by  attorney  held  suffi-  103  Ind.  48,  2  N.  E.  222;  Bowman 
cient.  St.  Lawrence  &c.  R.  Co..  v.  Venice  &c.  R.  Co.,  102  III.  459. 
In  re,  133  N.  Y.  270,  31  N.  E.  218.  '  Board  of  Commissioners,  Mat- 
As   to   signature   and    execution   b}-  tcr   of,   52   N.   Y.    131. 

a  corporation  or  its  agent,  see  De-  '^  Bowman  v.  Venice  &c.  R.  Co., 
troit  V.  Beecher.  75  Midi.  454.  42  102  III.  459.  Including  as  joint 
N.  W.  986,  4  L.  R.  A.  813:  Trestcr  owners,  persons  having  no  inter- 
V.  Missouri  Pac.  R.  Co.,  33  Nebr.  est  in  the  property  is  immaterial, 
171.  49  N.  W.  1110;  Coles  v.  Mid-  if  the  true  owners  are  named. 
land  &c.  Co.,  67  N.  J.  L.  490,  51  Boyd  v.  Negley,  40  Pa.  St.  377. 
.A.tl.  448:  Metropolitan  El.  R.  Co.,  See  generally  as  to  naming  own- 
In  re,  26  N.  Y.  St.  968,  7  N.  Y.  S.  ers,  Toledo  &c.  R.  Co.  v.  Munson, 
707:  Reitenbaugh  v.  Chester  Val-  57  ^lich.  42,  23  N.  W.  455:  Thomas 
ley  R.   Co.,  21   Pa.  St.  100.  v.    St.    Louis    &c.    R.    Co.,    164    111. 

■•  !\lorton     V.     Franklin     Co.,     62  634,   46  N.   E.  8. 

Maine    455.      See    Hill    v.    Glendon  »  Crise   v.   Auditor,    17   Ark.   572; 

&c.    R.    Co.,    113    X.    Car.    259,    18  Solnia  R.  Co.  v.  Camp,  45  Ga.  180; 


{.  1316  KAlLKOAnS  ')4S 

inquii-fd  into,'"  and  it  has  bt'eii  held  that  naniin.^"  a  i)t'rson  as  a 
respondent  in  pro.ceedin.^s  for  the  condemnation  of  land  is  an 
I'dniission  of  Ids  title,  unless  it  is  expressly  denied." 

§  1316.  Limited  and  unlimited  petitions. — AN'here  the  statute 
does  not  compel  a  railroad  comi)any  to  take  a  certain  hxed  in- 
terest or  amount,  the  comi>any  may  usually  limit  the  interest  or 
takinii"  in  its  jjctition  or  instrument  of  ai)])ropriation,  and.  in  such 
case  the  awa.rd  of  dama,<4es  will  ordinarily  be  smaller  but  may  nor 
cover  future  injuries  or  additional  uses,  or  constitute  a  bar  to 
future  (lama,i4es.  to  the  extent  that  it  would  under  a  i^xmeral 
;md  less  limited  petition,  if  the  company  has  by  stipulation  or 
limited  i)etition  confined  the  taking  to  the  right  to  use  in  a  spe- 
cified manner  or  onl}-  to  a  limited  extent  the  damages  are  usually 
assessed  on  that  basis  ;ind  if  the  company  afterwards  undertakes 
to  make  a  chan.^e  not  contemplated  therein  an  action  for  dam- 
ages may  lie  against  it:  but  where  the  petition  and  order  do  not 
limit  the  taking  the  general  rule  is  that  the  condemning  ])arty 
will  accjuire  the  right  to  constitute  or  change  its  works  in  any 
wav  \\-ithin  its  powers  so  long  as  it  is  not  negligent  and  does  not 
\iolate  the  rights  of  adjacent  l.and-owners  and  kee])S  within  the 

Peoria  &c.  1\.  Co.  v.  T, auric.  63  R.  Co.,  23  'SUnu.  114.  Unless  the 
III.  264:  St.  Louis  &c.  R.  Co.  v.  statute  provides  for  submitting  the 
I'cters.  68  ill.  144:  Xorristown  (|uestion  of  title  to  iheni,  commis- 
Turnpike  Co.  v.  I'.iuket.  26  Ind.  ^ioners  to  assess  damages,  can  not 
53;  St.  Paul  &c.  R.  Co.  v.  Mat-  pass  upon  questions  of  title.  Spring 
thews,  16  Minn.  341:  Rippe  v.  Chi-  Valley  Water  Works  v.  San  Fran- 
ca^f.  &c.  R.  Co..  23  Minn.  18.  Tt  cisco.  22  Cal.  434.  .\s  to  state- 
is  said  that  in  all  cases  where  the  ment  of  title  in  petition,  sec  Sani- 
land-owner  seeks  to  recover  dam-  tary  Dist.  v.  Pittsburgh  <Scc.  R. 
ages  for  land  not  taken,  he  must  Co..  216  111.  575.  75  N.  E.  248. 
establish  his  ownership  of  the  i'  Golden  &c.  R.  Co.  v.  Hag- 
land.  St.  Paul  &c.  R.  Co.  V.  :^Tat-  gart,  9  Colo.  346.  12  I'ac.  215:  Chi- 
thews.  16  Minn.  341.  oago  &c.  R.  Co.  v.  Hopkins,  90 
'"International  &c.  R.  Co.  v.  111.  3l6.  See  also  Tracy  v.  Mt. 
I'.enitos.  59  Tex.  326.  The  owner  Pleasant.  165  Iowa  435,  146  N.  W. 
is  at  liberty  to  show  that  his  title  78;  Idint  &c.  R.  Co.  v.  Detroit 
is  different  from  that  stated  in  the  &c.  R.  Co.,  64  Mich.  350,  31  N.  W. 
petition.     Brisbine  v.   St.   Paul   &c.  281. 


949  PKOCKOfm:    in    Al'l'KOl'UiATION    CASES  §  1-31T 

limits  of  llu'  original  ai)i)roi)riati()n.''-=  The  instrument  of  appro- 
]  riation  and  the  order  are  usually  looked  to  for  a  description  of 
V  hat  was  taken  and  as  hxing  the  basis  for  the  assessment  of 
damag-es.''  The  petiticm  should  be  broad  enough  to  authorize 
the  condemnation  for  the  use  desired,  for  the  condemnor  is 
nsuallv  confined  to  the  use  specified  therein."  And.  so.  on  the 
(;ther  hand,  it  should  not  be  too  broad  if  only  a  limited  use  is  de- 
sired. If  the  petition  specifies  and  asks  for  the  condemnation  of 
the  entire  interest  the  condemnor  can  not  insist  on  taking  a  dif- 
ferent and  less  interest  and  limiting  the  compensation  to  that 
without  .-imendment  or  consent  of  the  other  party.^' 

§  1317  (1029).  Contents  of  the  petition. —  In  many  i^i  tlie 
states  the  petition  must  state  that  the  taking  is  necessary  for 
public  u<'i.\'^"  and  this,  in  effect,  is  required  in  most  of  the  states.""' 

1-' Cleveland   &c.    R.   Co.   v.   Had-  I'ac.   903:    Nnrtlnvcstern    Elec.    Co. 

ley.    17*)    fnd.   429,   439.   440.    101    X.  v.    Zimmerman.    67    Ore.    150.    135 

E.   473,   45   L.   R.   A.    (X.    .S.)    796:  Pac.    330.    Ann.    Cas.    1915C,   927n. 

Cleveland    t'tc.    R.    Co.    v.    Dnan.    47  The  petition  must  be  broad  enough 

Ind.  App.  322,  94  N.   E.  598.  to  authorize  the  condemnation   for 

13  Southern   Ind.    R.   Co.   v.    Indi-  the   use   desired,   for  the  petitioner 

anapolis   &c.   R.    Co..   168   Ind.  360.  will  be  confined  to  the  use  specified 

81    N.    E.   65.    13    L.    R.    A.    (N.   S.)  in  the  petition.     Barnes  v.  Chicago 

197:   Cleveland   &c.   R.   Co.  v.  Had-  &c.  R.  Co.   (Tex.).  33  S.  W.  601. 
ley,    179   Ind.   429,   438,  439,   101   N.  i'  In   Illinois  the  statute  requires 

K.  473,  45   L.  R.  A.   (N.  S.)  796.  the  petition   to   set  forth  "the  pur- 

3+  r.arnes  v.   Chicago   &c.   R.   Co.  pose    for    which    said    property    is 

"(Tex.  Civ.  App.),  33  S.  W.  601.  sou.ght  to  be  taken,"  and  from  this 

!■•  R  i  c  h  m  o  n  d    v.    Thomi)son's  the   court   is   required   to   judge   of 

1  loirs,   116  A'a.   178,  81    S.  E.  105.  the    necessity   of   taking   the    prop- 

!'■■  ^'alley     R.     Co.     v.     Dohm.     34  erty,    and    of    the    public    nature    of 

Ohio  St.   114:   Atchison   &c.  R.   Co.  the   tisc    for   which   it    is    sought   to 

V.  Lyon,  24  Katis.  745:  South  Caro-  be    taken.      Smith    v.    Chicago    &c. 

lina  &c.  R.  Co.  v.  R.lakc.  9  Rich.  L.  R.  Co.,  105  111,  511.     See  also  Val- 

(S.    Car.)    228:    Grand    Rapids    &c.  ley    R.    Co.   v.    Rohm.   34   Ohio   St. 

R.    Cm.    v.    \'au    nrielo.    24    Mich.  114;   I'.roadway  &c.   R.  Co.,   Matter 

409;   Smith  v.  Chicago  &c.  R.  Co.,  of,  73  Hun  7.  25  N.  Y.  S.  1080.    But 

105    111.    511:    Grove    St..    In    re,    61  as  to  what  is  suflicient,  see  Fletch- 

Cal.    438.       See    Louisville    &c.    R.  er  v.  Chicago  &c.  R.  Co..  67  ?k[inn. 

Co.   V.    Lang.    160   Ky.   702,    170    S.  3.39.  69  X\  W.  1085:  :\robile  &c.  R. 

W.  2:  Colville  V.  Judy.  73  ^lo.  651:  Co.    v.    Postal    Tel.    &c.    Co..    120 

Helena  v.  Harvey,  6  Mont.  114,  9  Ala.  21,  24  So.  408;   Eckart  v.   Ft. 


v^  1318 


KAILKOAOS 


950 


It  seems  to  us  that  even  where  there  is  no  statute  requiring-  the 
petition  to  show  that  the  land  is  needed  for  a  jnildic  use  this  fact 
!v.ust  be  alleged,  but  that  the  allegation  is  sufficient  if  it  shows 
that  the  land  is  required  for  legitimate  railroad  purposes.  The 
purpose  for  which  property  is  sought  to  be  taken  should  be  stated 
that  it  mav  l)e  known  whether  such  purpose  is  within  the  objects 
for  which  land  may  be  taken  l)y  authority  of  the  particular  stat- 
ute under  which  the  proceeding  is  brought. ^^  The  authority  of 
corporations  to  take  land  under  the  eminent  domain  should  ap- 
pear in  the  petition  either  by  reference  to  the  laws  under  which 
it  was  incorporatefl'-'  or  1)}'  other  averments.  ]^)Ut  in  New  Jersey. 
.-Mid  probablv  in  man}-  of  the  states,  it  is  not  necessary  to  set  out 
that  the  borough  consented  to  the  location  of  the  route.-" 

§  1318.     Contents   of   petition — Description    of    property. — In 

some  states  the  petitioner  may,  by  leave  of  court,  amend  the 
description  contained  in  his  petition,  and  the  writ  issued  thereon 
for  the  assessment  of  damages.-^  If  only  a  general  description 
is  required  by   statute,   the  courts  can   not  require  more,'-  but 


Wayne  &c.  Trac.  Co.,  181  Ind. 
352.'  104  N.  E.  762;  Clarke  v.  Chi- 
cago &c.  R.  Co.,  23  Ncbr.  613,  2,7 
X.  W.  484.  In  California  it  is  held 
that  the  petition  need  not  contain 
u  statement  that  the  proposed  lo- 
cation is  compatible  with  the  great- 
est public  good  and  the  least  pri- 
vate injury  is  required.  San  Fran- 
cisco &c.  R.  Co.  V.  Leviston,  134 
Cal.  412,  66  Pac.  473. 

18  New  York  Central  &c.  Co., 
Matter  of,  5  Hun  (N.  Y.)  86.  The 
petition  must  show  a  case  within 
the  statute.  Mound  City  v.  Ma- 
son. 262  111.  392,  104  N.  E.  685; 
Westport  &c.  Co.  v.  Thomas,  175 
Ind.  319,  94  N.  E.  406.  See  also 
Valley  Railway  Co.  v.  Bohm,  34 
Ohio  St.    114. 

^»  Atkinson  v.  Marietta  &c.  R. 
Co.,  15  Ohio  St.  21.  See  also 
Illinois    Cent.    R.    Co.    v.    Chicago, 


138  TIL  453,  28  N.  E.  740;  Hartford 
<.S:c.  R.  Co.  V.  Wa.t^Mier,  7?)  Conn. 
506,  48  Atl.  218;  Brinkerhoff  v. 
Newark  &c.  Traction  Co.,  66  N.  J. 
L.  478,  49  Atl.  812.  Commission- 
ers appointed  in  pursuance  to  such 
a  petition  have  no  authority  to 
pass  upon  the  corporate  existence 
of  tlie  petitioner.  Schroeder  v.  De- 
troit &c.  R.  Co.,  44  Mich.  387,  6 
N.  W.  872. 

20  Brinkerhoflf  v.  Newark  &c. 
Traction  Co.,  66  N.  J.  L.  478,  49 
All.  812. 

21  Hunt  v.  New  York  dic.  R.  Co., 
99  Ind.  593;  Midland  R.  Co.  v. 
Smith,  109  Ind.  488.  9  N.  E.  474. 
See  also  New  York  Munic.  Ry. 
Corp.  v.  Parkhill,  145  N.  Y.  S.  447: 
City  of  Chehalis  v.  Centralia,  77 
Wash.  672,,  138  Pac.  293. 

22  Wright  v.  Wilson,  95  Tnd.  408. 


i).")! 


PROCEDIKE   IN    APi'HOI'KIATlON    CASES 


§  1318 


there  should  always  be  a  reasonably  accurate  description  of  the 
land  sought  to  be  seized.-'  That  is  certain  which  can  be  made 
certain  bv   references  contained   in   the   petition.-*     Stating  the 


2't  California  &c.  R.  Co.  v.  Hoop- 
er, 76  Cal.  404.  18  Pac.  599:  Chi- 
cago &c.  R.  Co.  V.  Chicago,  132 
111.  372.  23  N.  E.  1036;  Prather  v. 
TofifcM-soiivillc  S:c.  R.  Co.,  52  Ind. 
16:  Mani.stce  &c.  R.  Co.  v.  Fow- 
ler. 7?>  Mich.  217.  41  N.  W.  261: 
r>ay  City  &c.  R.  Co.  a\  Hitchcock. 
90^Iich.  533.  51  X.  W.  808:  De- 
troit &c.  R.  Co.  V.  Gartner,  95 
Mich.  318.  54  X.  W.  946:  Sheldon 
V.  Minneapoli.s  &c.  R.  Co.,  29 
^linn.  318.  13  N.  W.  134;  West  v. 
West  &c.  R.  Co.,  61  Miss.  5-36;  St. 
Louis  &c.  R.  Co.  V.  Lew-right,  113 
Mo.  660,  21  S.  W.  210:  Atchison 
&c.  R.  Co.  V.  Boerncr,  34  Nebr. 
240,  51  X.  W.  842,  33  Am.  St.  637: 
State  V.  Hudson  &c.  R.  Co..  38 
N.  J.  L.  548:  •:\Ietropolitan  &c.  R. 
Co.  V.  Dominick.  55  Hun  198.  8 
N.  Y.  S.  151:  Ames  v.  Union  Co.. 
17  Ore.  600,  22  Pac.  118,  27  Am.  & 
Eng.  Corp.  Cas.  60:  O'Hara  v. 
Pennsylvania  &c.  R.  Co.,  25  Pa. 
St.  445:  Pennsylvania  &c.  R.  Co. 
V.  Porter.  29  Pa.  St.  165;  Parker 
V.  Fort  Worth  &c.  R.  Co.,  84  Tex. 
?,:!,Z,  19  S.  W.  518:  Strang  v.  Beloit 
&c.  R.  Co.,  16  Wis.  635.  See  also 
San  Francisco  &c.  R.  Co.  v.  Gould. 
122  Cal.  601,  55  Pac.  411:  Omaha 
&c.  R.  Co.  V.  Rickards.  38  Nebr. 
847,  57  X.  W.  739;  New  York 
Munic.  Ry.  Corp.  v.  Parkhill,  145 
X.  Y.  S.  447;  Houston  &c.  R.  Co. 
V.  Postal  &c.  Co..  18  Tex.  Civ. 
App.  502.  45  S.  W.  179.  181  fciting 
text).  Where  it  is  properly  de- 
scribed an  erroneous  statement  as 
to    the    number    of   acres    will    not 


rcndor  the  petition  bad.  lllyes-v. 
White  River  &c.  Co.,  175  Tnd.  118. 
93  N.  E.  670.  .\nd  it  has  been  held 
that  the  decree  may  correct  an 
erroneous  description  in  the  peti- 
tion. City  of  Chelralin  v.  Centra- 
li-.  77  Wash.  673.  138  Pac.  293. 

2+Quincy  Sec.  R.  Co.  v.  Kellogg. 
54  Mo.  334:  Miller  v.  Porter.  71 
1 11(1.  521:  Tllinois  Cent.  R.  Co.  v. 
Lnstant.  167  111.  85,  47  X.  E.  62: 
Silver  V.  Chicago  &c.  R.  Co.,  123 
111.  293,  14  X.  E.  12.  In  a  petition 
and  warrant  for  the  assessment  of 
damages  occasioned  by  one  rail- 
road building  its  road  across  the 
road  of  another,  the  place  injured 
was  described  as  a  "part  of  the 
land  and  bridge  heretofore  held 
and  occupied  by  the  petitioners, 
for  railroad  purposes,  measuring 
about  five  rods  in  length  and  forty 
feet  in  width  and  laying  a  little 
west  of  the  draw  in  their  bridge 
from  Charleston  to  Somerville, 
and  nearly'  contiguous  thereto." 
with  a  reference  added  to  the  field 
location  and  actual  construction 
of  their  road.  Grand  Junction  &c. 
R.  Co.  v.  County  Comrs.  14  Gray 
(Mass.)  553.  See  California  &c. 
R.  Co.  V.  Southern  &c.  R.  Co..  67 
Cal.  59.  7  Pac.  123;  Marion  &c.  R. 
Co.  V.  Ward.  9  Ind.  123:  Cleveland 
&c.  R.  Co.  v.  Prentice,  13  Ohio 
St.  Z7Z;  Bennett,  Ex  parte,  26  S. 
Car.  317.  2  S.  E.  389;  Ohio  River 
&:c.  R.  Co.  V.  Harness,  24  W.  Va. 
511:  London  v.  Sample  &c.  Co., 
91  Ala.  606.  8  So.  281. 


8  1318  RAILROADS  952 

particular  eig'hty  acres  through  which  the  road  would  run  and 
the  general  direction  it  would  follow,  with  a  reference  to  a  map 
filed  with  the  petition  was  held  a  sufficient  (lescri])ti()n.-''  Where 
.'I  .petition  describes  three  different  surveys  and  locations  of  a 
railroad,  without  designating"  which  one  it  seeks  to  condemn,  it 
lias  been  held  to  be  a  nullity,-"  but  we  doubt  the  soundness  of 
this  decision,  for  we  think  such  proceeding  could  not  be  assailed 
collaterally,  although  the  petition  would  be  insufficient  as  against 
a  direct  assault.  It  is  held  that  a  description  by  reference  to  the 
map  and  survey  on  file  in  the  county  register's  office  is  not  suffi- 
cient.-^    Where   the   statute   requires   the   petition   to   contain   a 

-•''Kansas  City  &c.  R.  Co.  v.  ],.  cd.  213;  San  l'~ranciscn  &c.  R. 
Story,  96  Mo.  611,  10  S.  W.  203;  Co.  v.  ^lahoney,  29  Cal.  112;  Jack- 
Cory  V.  Chicago  &c.  R.  Co.,  100  sonvillc  &c.  R.  Co.  v.  Adams,  28 
Mo.  282,  13  S.  W.  346.  44  Am.  &  I'la.  631,  10  So.  465,  14  L.  R.  A. 
Eng.  R.  Cas.  183;  Cincinnati  &c.  533;  Cliicago  &c.  R.  Co.  v.  Abbott, 
R.  Co.  V.  Bay  City  &c.  R.  Co.,  44  Kans.  170,  24  Pac.  52;  Baltimore 
106  Mich.  473,  64  N.  W.  471;  &c.  Co.  v.  Morgan's  Louisiana  &c. 
State  V.  Cent.  N.  J.  &c.  Co..  53  Co.,  37  La.  Ann.  883;  Meriam  v. 
X.  J.  L.  341,  21  Atl.  460,  11  L.  Brown,  128  Afass.  391;  Brock  v. 
R.  A.  664;  Stillwater  &c.  R.  Co.  v.  Old  Colony  &c.  R.  Co.,  146  Mass. 
Slade,  36  App.  Div.  587.  55  N.  Y.  194,  15  N.  E.  555;  Morris  &c.  Co.  v. 
S.  966.  .A.iding  description  by  ref-  Central  R.  Co.,  16  N.  J.  Eq.  419; 
erence  to  maps  and  plats.  Cory  v.  Douglity  v.  Somerville  &c.  Co.,  21 
Chicago  &c.  R.  Co.,  100  Mo.  282,  N.  J.  L.  442;  South  Brooklyn  &c. 
13  S.  W.  346,  44  Am.  &  Eng.  R.  R.  Co.,  In  re,  50  Hun  405,  2  N.  Y. 
Cas.  183;  Kansas  City  &c.  R.  Co.  613;  Wheeling  &c.  R.  Co.  v.  Cam- 
V.  Story,  96  Mo.  611.  10  S.  W.  203;  den  &c.  Co.,  35  W.  Va..  205.  13  S. 
St.  Louis  &c.  R.  Co.  V.  Fowler.  113  E.   369. 

Mo.  458,  20  S.  W.  1069;  New  York  2(i  Qulf  &c.  R.  Co.  v.  Mud   Creek 

&c.    R.    Co.,    In    re.    70    N.    ^".    191;  tScc.    R.    C,    1    Tex.    App.    Civ.    Cas. 

I'remont    &c.    R.    Co.    v.    Mattheis.  169. 

35  Nebr.  48,  52  N.  W.  698;  Vail  v.  -"  Chicago  &c.  R.  Co.  v.  San  ford. 

Morris  &c.  R.  Co.,  21   N.  J.  L.  189.  23    Mich.    418.     The    petition    must 

Construction    of   statutes   reciuiring  contain    such    a    description    of   the 

maps,  plans  or  profiles  to  be  filed.  land    sought    to    be    condemned    as 

Chicago  &c.  R.  Co.  v.  Chicago  &c.  will   show   its   location   and   bound - 

R.    Co.,    112    111.    589;    Johnson    v.  aries.     A   defective  description   can 

Towsley.    13    Wall.    (U.    S.)    72,   20  not  be  remedied  by  a  reference   in 

)..    ed.    485;    Lansdale    v.    Daniels,  the  petition  to  a  deed.     New  York 

100  U.  S.  113.  25  L.  cd.  588;  United  &c.    R.    Co.,    In    re,   70    N.    Y.    191. 

States  V.  McLaughlin,  30  Fed.  147,  But  see  Grand  Junction  &c.  R.  Co. 
127  U.   S.  428.  8  Sup.   Ct.    1177,  32 


953  PROCEDURK   IN   APl'Kor'KIATlOX   CASfIS  §  ^'^^^^ 

cle.scrii)ti('n  oi  each  tract  of  land  takfii  l)y  map  or  definite  survey, 
it  is  not  sufficient  to  descrihe  it  sim])ly  "as  staked  out  upon  and 
across"  a  certain  section.-"*  It  has  l)een  held  unnecessary  that 
th.e  petitioner  shall  enihrace  in  one  petition  all  the  descriptions 
ill  the  conntv  necessary  for  the  ccnistruction  of  the  road.-''  Neither 
should  the  petition  include  separate  tracts  of  land  lying  outside 
the  county  except  where  one  tract  lies  partly  within  and  i)artly 
without  the  county.'"  ]Jescril)ino-  the  land  sought  to  be  con- 
demned as  a  certain  number  of  feet  on  each  side  of  the  center 
line  of  the  railroad,  as  the  same  is  located,  staked,  and  marked, 
has  been  held  sufficient.''  So,  also,  it  seems,  is  the  description  of 
the  right  of  way  as  extending  diagonally  through  "a  tract  of 
land,"  from  a  point  near  the  northeast  corner  to  a  point  near 
the  southwest  corner.-''^  A  description  of  a  right  of  way  as  a 
strip  "about  one  hundred  feet  wide"  extending  across  a  quarter 
section  "about  ten  rods  north"  of  the  center  thereof,  however, 
has  been  held  insufficient.'"  The  description  should  in  all  cases 
be  sufficiently  definite  to  enable  one  skilled  in  such  matters  to 
locate   it   on   the  ground."'^     The  petition   should   show   that   the 

V.  County  Comrs..  14  Gray  (Mass.)  Court,   45   Wash.  321.   88   Pac.  334. 

553;    Lancaster   v.   Augusta    Water  335   (citing  text).     Such  a  descrip- 

Dist.,    108    Maine    137,   79   .A.tl.   463,  tion  will  control  other  parts  of  the 

Ann.  Cas.   1913A,  1252.  petition       inconsistent       therewith. 

28  Toledo  &c.  R.  Co.  v.  ^[unson,  Lower  v.    Chicago   &c.    R.    Co..    59 
57  Mich.  42,  23  N.  W.  455.  But  ref-  b)\va   563,   13   N.  W.  718. 

erence  to  stakes  and  the  like  may  "-  Indianapolis  &c.  R.  Co.  v. 
be  sufficient  in  other  cases.  Chi-  Ncwsom.  54  Ind.  121. 
cago  &c.  R.  Co.  V.  Swan,  120  Mo.  "-^  Midland  R.  Co.  v.  Smith.  109 
30,  25  S.  W.  534;  Suver  v.  Chicago  Ind.  488.  9  N.  E.  474.  See  however 
&c.  R.  Co..  123  111.  293.  14  N.  E.  where  it  was  also  described  as  ly- 
12;  West  v.  West  &c.  R.  Co..  61  ing  west  of  and  adjoining  a  rail- 
Miss.  536.  road  right  of  way.     Joliflf  v.   Mun- 

29  Marquette  &c.  R.  Co.  v.  Long-  cie   Elec.   Light   Co..   181    Ind.   650. 
year.   133   Mich.  94.  94  N.  W.  670.  105  N.  E.  234. 

10  Det.  Leg.  N.  HI.  ■'*  Rising   Sun   &c.   Co.   v.   Ilamil- 

■■'"Toluca    &c.    R.    Co.    v.    Haws,  f  m,  50  Tnd.  580;  Spoflford  v.  Bucks- 

194  111.  92.  62  N.   E.  312.  ])<>i-t  &c.  R.  Co..  66  Maine  26;  Chi- 

31  Lower  v.   Chicago  &c.   R.  Co.,  cago    &c.    R.    Co.    v.    Sanford.    25 

59  Iowa  563,  13  N.  W.  718;  Cleve-  .Mich.    418;    .Mansfield    &c.    R.    Co. 

land    &c.    R.    Co.    v.    Prentice,    13  v.  Clark,  23  :Mich.  519;  Toledo  &c. 

Ohio    St.    373:    State    v.    Superior  R.  Co.  v.   :\[unson,  57  Mich.  42,  23 


^.  l:;i!)  KAILKOADS  954 

property  is  within  the  jurisdiction  of  the  court.""'  Some  of  the 
courts  hold  that  the  petition  must  state  the  value  of  the  land 
soui,dit  to  be  appropriated,"'"  but  this  is  not  always  required.^" 
The  petitioner  in  a  cross-petition  praying  for  an  award  of  dam- 
a<:^es  to  land  which  is  not  taken  must  allege  that  he  is  the  owner 
of  the  tract  alleg^ed  to  be  damaged,  and  if  the  petitioner  desires 
to  question  such  allegation  it  must  raise  the  issue  by  appropriate 
pleadings.''^ 

§  1319   (1029a).     Petition — Defects   and  manner   of  testing. — 

As  alreadv  stated,  in  some  jurisdictions  the  petition  is  treated 
much  as  an  ordinary-  complaint.  It  has  been  held  that  it  may  be 
ficmurred  to  in  a  proper  case.-'"'  but  that  a  motion  to  strike  ouf*" 
or  dismiss  it'*^  will  not  lie.  Some  statutes  proxide  that  the  de- 
fendant may  file  written  objections  and  that  no  pleadings  other 
than  the  petition  and  that  no  other  pleadings  shall  be  allowed 
aside  from  exception  to  the  report  of  the  ai:)iM-aisers.  Under  such 
a  statttte  it  is  held  that  if  the  ol)jections  challenge  the  sufficiency 

X.   W.   455;    Wilkin    v.    First    Divi-  fnniia   (."^c.   R.   Co.  v.   Sontlicrn   &c. 

sion    &c.    R.    Co.,    16    Minn.    271;  R.    Co.,  67   Cal.  59,  7   Pac.   123,  20 

West  V.  West  &c.  R.  Co.,  61  r^Iiss.  .\m.    &    Eug.   R.   Cas.   309;    United 

536;  Quincy  &c.  R.  Co.  v.  Kellogg,  States    v.    Oregon    &c.    R.    Co.,    16 

54  Mo.  334;  State  v.  American  &c.  Fed.   524. 

Co.,    43    N.   J.    L.    381;    New    York  3"  See  cases  last  cited  in  last  pre- 

&c.    R.    Co.,    In    re,   90   N.    Y.   342;  ceding   note. 

Hussner  v.  Brooklyn  City  R.   Co.,  ^^  Chicago    &c.   R.    Co.   v.    Diver, 

96  N.  Y.  18;  Pennsylvania  R.  Co.  v.  213  111.  26,  72  N.  E.  758.     See  also 

Porter,  29  Pa.  St.  165;  Ohio  River  Wcstport    Stone    Co.    v.    Thomas, 

R.  Co.  V.  Harness,  24  W^  Va.  511.  175  Tnd.  310,  94  N.  E.  406. 

This   is   also   held   sufficient   in    the  ■"•'' John^-on     v.     Frecport    &c.     R. 

recent     case     of    Joliff     v.     Muncic  Co..    Ill     111.    413;    I'arkcr    v.    .Sno- 

Elec.   Light  Co..   181    Tnd.  650,   105  homisli    CO..    Sui)er.    Ct..   25   Wash. 

K.  E.  234.  544.    66    Pac.    154.      Compare    also 

•'''  Collins   V.   Ru])e,    109    Ind.   340,  Wcstport    Stone     Co.    v.    Thomas, 

10  N.  E.  91;  Schoff  v.  Upper  Conn.  175   Ind.  319,  94  N.   E.  406. 

River  &c.  Co.,  57  N.  TI.  110;  State  'o  Johnson     v.     I'rccport     fkc.     R. 

v.  Van   Derveer,  48  N.  J.  L.  80,  2  Co.,   Ill    111.   413. 

.•\tl.  771.  41  willard    v.    P.oston.    149    Mass. 

•■'«  Colorado  &c.  R.  Co.  v.  Allen,  176,    21    N.    E.    298.      See    Cella    v. 

13   Colo.  229.  22   Pac.  605,  44  Am.  Chicago    &c.    R.    Co.,   217    111.   326. 

^  Eng.  R.  Cas.  193.     P.ut  see  Cali-  75  X.  E.  373. 


955  PKOCEDl'KK   IN    Al'l'Kol'KI  ATK  ).V   CASKS  §1320 

of  the  complaint  they  perform  the  office  of  a  demurrer  and  tender 
issues  of  law  for  the  decision  of  the  court.*-  Dut  it  is  also  held 
that  the  objection  may  set  up  matter  not  apparent  on  the  face  oi 
the  complaint  and  if  it  does  so  it  does  not  perform  the  office  of  a 
special  demurrer,  but  of  an  answer,  and  thus  tenders  an  issue  of 
fact.*^  The  same  strictness  is  not  usually  required  as  in  a  com- 
plaint in  an  ordinary  action/*  and,  if  the  petition  is  not  attacked 
at  the  proper  time,  there  are  many  defects  that  may  be  waived 
or  cured  by  proof.*^ 

§  1320  (1030).  Title. — After  land  has  been  condemned  as  the 
property  oi  a  defendant,  the  railroad  company  can  not,  without 
tendering-  an  issue  as  to  the  ownership,  dispute  his  title  on  ap- 
peal.*** Where  the  land-owner  brings  the  suit,  he  must  show 
that  he  has  title  to  the  land  for  which  damages  are  sought  ;•*'  but 
under  some  statutes  it  has  been  held  that  the  fact  of  his  being 

42  Westport  Stone  Co.  v.  Thorn-  V.  St.  346.  14  N.  Y.  S.  470.  But  see 
as.  170  Tnd.  91,  83  N.  E.  617;  Van-  as  to  filing  objections  under  the 
dalia  Coal  Co.  v.  Indianapolis  &c.  late  Indiana  statute,  Morrison  v. 
R.  Co.,  168  Ind.  144,  79  N.  E.  Indianapolis  &c.  Ry.  Co.,  166  Ind. 
1082;  Westport  Stone  Co.  v.  Thorn-  511.  76  N.  E.  961,  77  N.  E.  744. 
as,  175  Ind.  319,  94  N.  E.  406  (and  4«  Republican  Valley  &c.  R.  Co. 
a  general  denial  raises  no  issue  v.  Hayes,  13  Nebr.  489,  14  N.  W. 
under   the    statute).  521.     See  also  Enid  &c.  R.   Co.  v. 

43  Westport  Stone  Co.  v.  Thorn-  Wiley,  14  Okla.  310,  78  Pac.  96.  If 
as,  175  Tnd.  319,  94  N.  E.  406;  the  title  of  a  defendant  is  found  to 
Morrison  v.  Indianapolis  &c.  R.  be  defective,  the  railroad  company 
Co.,  166  Ind.  511,  512.  76  N.  E.  961,  should  dismiss  the  proceedings,  or 
77  N.  E.  744.  move   to  set   the    incjucst  aside  be- 

44  Rochester  R.  Co.  v.  Robinson,  cause  of  his  lack  of  ownership. 
133  N.  Y.  242,  30  N.  E.  1088;  Mar-  .Xuditnr  v.  Crisc.  20  Ark.  540;  May- 
tinsville  &c.  R.  Co.  v.  Bridges,  6  or  v.  Richardson,  1  Stew.  &  P. 
Ind.  400.  But,  as  already  shown,  (.\la.)  12.  Evidence  of  title  may 
all  tlic  necessary  jurisdictional  be  given  liy  producing  record  in 
facts   must   be   stated.  partition    proceedings.      Tucker    v. 

45  New  :\Iilford  Water  Co.  v.  Chicago  &c.  R.  Co.,  91  Wis.  576. 
Watson,  75   Conn.  237.  53   .\t].  57:  65   N.  W.   515. 

Rochester    &c.    R.    Co.    Hartshorn,  ^r  Robbins   v.    Milwaukee    &c.    R. 

26  N.  Y.  St.  753.  7  N.  Y.  S.  279:  Co.,  6  Wis.  636;  Directors  v.  Rail- 
Washington    St..   Matter  of,  38   N.       mad   Co.,  7  W.  &  S.   (Pa.)  236. 


^  ];321  RAiLHovDS  956 

in  possession  is  ])rinKi  facie  suf'licient  i)rool  of  title.'"^  and  that 
evidence  to  impeach  liis  title  can  only  be  offered  by  the  corpora- 
tion under  an  answer  settin.q-  up  want  of  title  as  a  defense.-*"  Tn 
other  states  it  is  held  that  the  corporation  is  bound  to  ])ay  for 
(  nl\  the  title  which  it  has  taken,  and  that  one  who  petitions  for 
(laniag-es   must   i)ro\ c   the   natiu-e  and   extent   of  his   ownership.''" 

§  1321  (1030a).  Defenses — Questions  of  law  or  fact. — As  al- 
ready shown,  many  of  the  condemnation  statutes  do  not  contem- 
])late  formal  pleadings  subsequent  to  the  ])etition.  yet  it  is  cus- 
tomarv  in  most  jurisdictions  to  ])ut  the  case  at  issue  by  an  answer 
or  other  proi)er  i)leadins:i-,  and.  in  .general,  the  evidence  is  confined, 
althousj^h  not  always  closely,  to  such  issue  or  issues."'^  As  a  g;eu- 
eral  rule  the  defendant  may,  by  a  proper  pleadini^-.  set  up  any 
matters  of  fact  constitutins^-  a  valid  defense.''-  But  it  has  been 
held  that  it  is  not  a  i^ood  defense  to  show  that  the  corporation  is 
a  mere  de  facto  corporation,  or  is  insolvent,  or  is  improperly  ex- 

•tsSacr.-xnuMito    Valli-y    R.    Co.    v.  Co..    177    ['a.    St.    252.   .V?    .\tl.    617: 

Mofifatt,   7    Cal.    377.  35   L.  R.  A.  583:   I'.anics  v.  Chicago 

■«<•  Daley  v.  St.  Paul,  7  ^rinn.  390.  &c.    R.    C.    (Tex.),   3.^    S.   W.    601: 

Wliere  the  company  claims  title  in  Northern    I'ac.   R.   Co.   v.   Coleman, 

itself   by    reason   of   a    fornuT   con-  3    Wash.    228,   28    Pac.   514;    Postal 

(lemnation    procee(lin<^-    against    an-  Tel.    Cable    Co.    v.    Northern    Pac. 

other   claimant,  the  ])roper   remedy  Ry.,    211    h'ed.    824    (answer    unnec- 

for  one    assertini.;-   title    to   the   land  essary   in   Washin;j;ton ).      !\[ason   v. 

has    been    held    to    be    an    action    of  Iowa    Cent.    R.    Co.,    131    Iowa    468, 

ejectment.      Webster    v.    Southeast-  109  N.  W.  1   (holding-  that  although 

ern    R.    Co..    15   Jur.    (Eng.')    73.  formal    pleading    are    not    rec|uired 

r,o  Peoria    &c.    R.    Co.    v.    P.ryant,  yet    defendant,    having    undertaken 

57  Til.  473;  Winebiddle  v.  Pennsyl-  to    jjlead    formally   by   written   ans- 

vania  R.   Co.,  2  Grant's   Cas.   (Pa)  wer.    could    not    avail    itself    of    an 

32;   Directors   &c.   R.   Co.,   7   W.   8c  affirmative     defense    not    pleaded). 

S.    (Pa.)    236;    Allyn    v.    I'rovidence  A    j^lea    in    the   nature    of  a    plea    in 

R.  Co..  4  R.  T.  457;  East  Tennessee  abatement   may  be   filed   in  a  i)ro])- 

&c.  R.  Co.  V.  Love,  3  Head  (Tenn.)  er    case.      Willard    v.     Boston,    149 

63:    Robbins    v.    .Milwaukee    c1-c.    R.  Mass.  176,  21    N.  E.  298. 
Co..  6  Wis.  636.  "'-St.  Joseph   Terminal   R.  Co.  v. 

■'•'  See    Colorado    Cen.    R.    Co.    v.  Hannibal    I'^c.    R.   Co.,   94   Mo.   635. 

Allen.    13    Colo.   229.   22    Pac.    605;  6  S.  W.  691;  Union  Pac.  R.  Co.  v. 

Mix  V.  Lafayette  &c.  R.  Co..  67  111.  Colorado  &c.  Co..  30  Colo.  133.  69 

319;  Becker  v.  Philadelphia  &'C.   R.  Pac.  564,  97  Am.   St.   106. 


957  PROCEDIKK    IX    AIM'KOI'UI ATION   CASES  §1322 

eixising-  its  franchises,  nor  that  there  has  been  a  i)ri()r  condemna- 
tion.^^ As  in  other  cases,  (juestions  of  law  are  for  the  court,  and 
questions  of  fact  are  generally  for  the  jury  or  commissioners.''^ 

§  1322  (1030b).  Further  of  defenses. — On  the  general  ground 
that  the  matter  was  solely  one  between  the  state  and  the  rail- 
road company,  and  not  between  the  land-owner  and  the  railroad 
company,  it  has  been  held  that  the  land-owner  could  not  urge  as 
a  defense  that  the  railroad  company  had  no  license  to  cross  or 
traverse  the  streets  of  the  town  in  which  the  defendant's  prop- 
erty was  located."'"'  or  that  the  condemnor  had  not  obtained  the 
consent  of  the  government  to  the  occupancy  of  certain  public 
lands  required  for  the  enterprise.'"'  or  that  the  railroad  comj^any 
improperly  occupied  a  ])ublic  highway."''  or  that  other  lands 
necessarv  could  not  l)e  condemned  because  owned  l)y  the  state. "'^ 

•^3  Brown    v.     Cahimet    River    R.  R.  Co.  v.   Fowler.  73   Mich.  217.  41 

Co.,    125     111.    600.     18    X.    E.    283:  X.  W.  261 :  Tennessee  Cent.  R.  C. 

Thomas    v.    St.    Lonis    &c.    R.    Co.,  v.    Campbell.    109   Tcnn.   655.   7.3   .S. 

164   111.    634.    46    X.    E.   8;    Denver  W.     112.       But    questions    of    fact 

Power    &c.    Co.    v.    Denver    &c.    R.  may  also  be  for  the  court  in  some 

Co.,   30   Colo.   204,   69   Pac,   568,   60  instances.     As  to  questions  for  the 

L.  R.  A.  383:   Lester  v.   Ft.  Worth  jur^-.   see    Kansas    City   &c.    R.    C. 

&c.   R,   Co.    (Tex.),  26   S.   W.   166:  v.    Vicksburg    &c.    R,    Co.,    49    I.a. 

Holly    Shelter    R.    Co.    v.    Xewton.  Ann.    29,   21    So.    144:    Chicago    &c. 

133    X.   Car.    132.   45    S.    E.    549,  98  R.   Co.  v.  Hnneheon.   130  Ind.  529. 

Am.    St.    701.      See    also    Dowie   v.  30  X.   E.  6j6:   Chicago  Electric   R. 

Chicago  &c.  R.  Co..  214  111.  49.  7i  Co.  v.  Chicago  &c.  R.  Co..  211   111. 

X.    E.    354.      But    compare    Great  352,   71    X.    E.    1017. 
Western    &c.    R.    Co.    v.    Hawkins.  ■'■■'•  Dowie    v.    Chicago   &c.   R.   Co.. 

30    Ind.    App.    557.   66    X.    E.    765:  214  III.  49.  73  X.  E.  354:  Pittsburg 

Honaker  v.  Xew  River  &c.  R.  C<>..  &c.    R.    Co.    v.    Gage,   280   111.    639. 

116  Va.  662.  82  S.  E.  727.  117  X.   E.  726. 

•'^  .\s  to  ([uestions  held  to  be   f'-r  ^-"Denver  T'ower  &c.  Co.  v.  l^en- 

the  court,  see  Cincinnati  &c.  R.  Co.  ver    &c.    R.    Co.,    30    Colo.    204,    60 

v.    Ohio    Postal    Tel.    Co..   68    Ohio  Pac.    569. 

St,  306,  U7  X.  E.  890,  62   L.   R.  A.  •■■Collier    v.    Union    R.    Co..    113 

941:  St.  Louis  &c.  R.  Co.  v.  South-  Tenn.  96,  83  S.  W.  155. 
western  Tel.  &c.  Co..  121   h\'(l.  276:  ^'^  Shamberg      v.       Xew      Jersey 

Colorado  Fuel  Co.  v.  I'our  Mile  K.  Shore  Line  R.  Co.,  72  X.  J.  L.  140, 

Co..    29     Colo.    90,    66     Pac.    902:  60  Atl.  46.     But  this  decision  was 

O'Hare  v.  Chicago  &c.  R.  Co.,  139  reversed  in  64  Atl.  114. 
III.  151.  28  N.  E.  923:  Manistee  &c. 


;^"  \:\'2'2  h.mijROads  958 

or  that  the  raih-oad  company  liad  not  complied  with  the  law  as  to 
the  completion  of  the  road  within  the  required  time,'^'^  or  that  the 
charter  of  the  railroad  company  was  a  fraud  on  the  public,  in 
that  while  it  was  obtained  for  general  railroad  purposes,  it  was 
really  intended  to  be  operated  as  a  lumber  railroad.''"  Similarly, 
it  has  been  held  that  a  railroad  company  could  not  object  to  the 
condemnation  of  its  right  of  way  by  a  telegraph  company  on  the 
ground  that  the  latter  had  not  obtained  leave  from  the  municipal 
authorities  to  erect  its  line  through  the  towns  along  the  proposed 
route,  as  required  by  law."  But  it  has  been  held  that  the  ques- 
tion of  the  right  of  a  railroad  company  to  construct  and  operate 
'c:  parallel  line  contrary  to  statute  may  be  raised  in  proceedings 
to  construct  one  of  the  lines  though  the  line  paralleled  is  in  an- 
other state,  and  that  it  is  not  necessary  to  resort  to  quo  war- 
ranto.*'- It  may  be  said  generally  that  the  selection  by  a  rail- 
road company  of  the  location  of  its  proposed  road,  being  given 
by  statute,  courts  have  no  right  to  deny  the  exercise  of  the  power 
of  eminent  domain  to  condemn  such  selected  right  of  way  be- 
cause they  think  some  other  location  is  as  good  or  better  and 
hence  it  can  not  be  urged  as  a  defense  by  the  land-owner  that 
the  railroad  company  could  have  selected  a  better  route.^^  Again 
the  question  of  the  good  faith  of  the  corporators  can  not  be 
laised  in  the  condemnation  proceeding.  This  question,  it  is 
said,  can  he  raised  onl}'  l)y  rpio  warranto."^ 

•■■•9  Brinkerhoff      v.      Newark     &c.  Granite  Cn.  3  Cal.  App.  668.  87  Pac. 

Trac.   Co..  66  X.  J.    L.   478.  49  Atl.  27.     Compare   Colorado  &c.  R.   Co. 

812.  V.   P.oaRni.   118  La.  268.  42  So.  932. 

""Holly   Shelter   R.   Co.   v.   New-  In    an    action    against    a    company 

ton.  1,3.3  N.  Car.   132,  45  S.   E.  549.  which     had     constructed     a     third 

'■■I  Union  Pac.  R.   Co.  v.  Colorado  track  without  authority  it  was  held 

&c.    Cable    Co.,    30    Colo.    133,    69  that    while    it    could    not    institute 

Pac.  564.  condemnation         proceedings         it 

'■■^  Illinois   State  Trust   Co.   v.   St.  might    nevertheless    be    considered 

Louis   &c.   R.    Co.,   208   111.   419,   70  as    a    corporation    acting    in    good 

N.   E.  357.  faith,    acquiring    easements    in    aid 

«3  Kansas  &c.  R.  Co.  v.  North-  of  the  construction  of  its  track 
western  Coal  &c.  Co.,  161  Mo.  288,  by  entering  into  contracts  with 
61  S  W.  684,  51  L.  R.  A.  936,  84  abutting  owners.  Knoth  v.  Man- 
Am.   St.  717.  hattan   R.   Co.,    187  N.   Y.   243,   79 

«*  Madera     R.    Co.    v.    Raymond  N.   E.   1015. 


959  I'ROCKDrHK    IX    Al'i'Kin'KIATIOX    CASES  §  1323 

§  1323  (1031).  Effect  of  pendency  of  proceedings  to  con- 
demn.— W'licre  a  corixjration  Ijcgins  proceedings  for  the  C(ni- 
clemnation  of  property,  the  immediate  efifect  necessarily  is  to 
prevent  the  sale  or  improvement  of  such  property  until  the  con- 
demnation proceedings  are  determined,  and  it  would  be  mani- 
festly unjust  to  a  land-owner  that  a  corporation  should  be  per- 
mitted to  harass  him  with  a  protracted  suit  or  succession  of  suits 
for  this  purpose,  and  in  case  the  assessment  of  damages  proved 
to  be  more  than  the  corporation  cared  to  pay,  that  it  should  be  at 
liberty  to  abandon  the  proceedings  without  repaying  the  costs 
and  damages  to  which  the  land-owner  has  been  subjected.  In 
New  York,  it  is  held  that  the  court  may  require  the  corporation 
to  pay  so  much  of  the  costs  and  expenses  of  the  opposite  partv 
as  may  be  equitable,  as  the  condition  upon  which  it  may  discon- 
tinue condemnation  proceedings  begun  by  it,"-^'  and  a  similar  view 
has  been  taken  or  suggested  by  a  few  other  courts.*'*'  In  other 
states  where  the  right  to  discontinue  is  held  to  be  absolute,  the 
courts  have  intimated  that  the  land-owner  could  recover  ]->\  suit 
any  damages  to  which  the  suit  for  condemnation  may  have  sub- 
jected him.'''  The  only  cases,  however,  where  such  a  recoverv 
has  been  sustained,  at  least  for  more  than  costs  or  expenses,  so 
far  as  we  have  been  able  to  ascertain,  have  been  actions  in  tort 
for  the  unreasonable  and  culpable  abuse  of  the  power  of  eminent 
domain  against  the  owners  of  property  not  needed  by  the  corpo- 

«5  Hudson    River    R.    Co.   v.   Out-  Co.    v.    Southern    R.    Co..    138    Mo. 

water,  3   Sandf.   (N.  Y.)   689;   New  591,  3*9  S.  W.  471. 
York  &c.  R.  Co.,  Matter  of,  1  How.  *''  North      Missouri      R.      Co.     v. 

Pr.   (N.  Y.)   N.  S.    190;   New  York  Lackland,    25     .Mo.    515;    Grafif    v. 

&c.  R.  Co.  v.  Nelson,  152  App.  Div.  Baltimore,    10    Md.    544;    Gear    v. 

245,    136    N.    Y.    S.    514;    Waverly  Dubuque  &c.  R.  Co.,  20  Iowa  523, 

Water  Works,  Matter  of,  85  N.  Y.  ^^  Am.  Dec.  550.     See  also  Centra- 

478.  lia    &c.    R.    Co.    v.    Henry,    31    111. 

'•"■See    Clarke   v.    Manchester,   56  109  ^_  ^   ^jg.  g^^  Louis  &c.  R.  Co. 

\.  H.  2:  Water  Comrs.,  Matter  of,  ,.    ^ape  Girardeau  &c.  R.  Co..  126 

31  N.  J.  L.  72,  86  Am.  Dec.  199  and  ^Jq.    App.    272,    102    S.    W.    1042; 

note:   Stevens  v.   Duck   River    Nav.  Kj,-,,  v.  Cape  Girardeau  &c.  R.  Co.. 

Co..   1   Sneed   (Tenn.)  2:->7:   Manion  124  .Mo.   App.  271.    101    S.   W.  673: 

V.    Louisville    &c.    R.    Co.,    90    Ky.  Lohse  v.   Missouri   Pac.   R.   Co..  44 

491,  14  S.  W.  532;  St.  Louis  &c.  R.  .Mo.  App.   645. 


^  1324  RAILROADS  960 

ration."''  or  for  the  occupancy  of  the  hinds  to  which  all  right  has 
been  forfeited  by  a  dismissal  of  the  condemnation  proceeding's,  in 
which  case  the  original   entry  is  held   to  have  been  wrongful.'"''' 

§  1324  (1032).  Dismissal  of  proceedings — Effect  of. — The 
fact  that  the  ])r()ceedings  \\ere  dismissed  has  been  held  to  be  an 
admission  that  the  taking  was  not  necessary,  and.  therefore,  that 
the  i)roceedings  were  not  in  good  faith.""  but  we  suppose  that  the 
petitioner  nia>'  explain  the  dismissal  and  show  that  it  was  in 
good  faith  and  for  sufficient  cause.  We  do  not  believe  that  the 
mere  fact  ui  dismissal  is  conclusive  evidence  that  the  j)etitioner 
acted  in  bad  faith.''      In  another  case.  h(»\ve\er.  it  is  said  that  the 

^^  Leissc  V.  St.  Louis  &c.  R.  Co.,  cin  not  do.  But,  while  ])reserving 
72  Mo.  561;  Black  v.  Baltimore,  50  to  the  council  the  i)rivilege  of  con- 
oid. 235,  33  Am.  Rep.  320:  Mayor  sidering  after  knowledge,  we  do 
&c.  V.  I'laok,  56  ^[d.  ^^^■.  Mo-  not  say  that  it  can  not  abuse  this 
Laughlin  v.  .Municipality,  5  La.  ])rivilege  nor  that  as  a  consequence 
Ann.  504.  In  Carson  v.  Hartford.  of  such  abuse,  the  city  may  not  be 
48  Conn.  6<S,  the  plaintiff  sued  to  comindled  to  indemnify  land-own- 
recover  for  tlie  depreciation  in  ers  who  have  suffered  loss  by  in- 
value  of  his  land  between  the  time  excusable  delay."  .Stevens  v.  Dan- 
that  the  city  council  voted  to  lay  bury.  53  Conn.  9,  22  .\tl.  1071.  See 
a  street  across  such  land,  and  also  B>ergman  v.  St.  Paul  itc.  R. 
caused  the  owner's  damages  to  be  Co..  21  .Minn.  533. 
assessed,  and  the  time  when  it  ''■'  I'ittsburg  &c.  R.  Co.  v.  Swin- 
reconsidered  its  former  action  and  ney,  97  hid.  586:  \'an  \'alkenburgh 
abandoned  the  imjirovement,  a  v.  Milwaukee,  43  Wis.  574,  as  ex- 
period  of  three  and  one-half  "years.  plained  in  I-'eiten  v.  Milwaukee.  47 
The  court  said:  "The  allegation  Wis.  494,  2  N.  W.  1148:  lluUin  v. 
that  the  city  'did  wrongfully  and  Second  Municiiialitv,  11  Rob. (La.) 
unnecessarily  i)roI(uig  the  i)roceed-  97.  43  .Am.  Dec.  202.  I'ut  see  Pine 
ings,"  is  too  vague  and  general  to  I'luff  &c.  R.  Co.  v.  KelU'.  78  Ark. 
sui)port  a  judgment.  It  neither  83,  93  S.  \\'.  562.  See  generallv  1  El- 
points  to  an  act.  nor  to  an  omis-  liott  Roads  and  Streets  (3rd  ed.), 
sion  to  act  for  the  purpose  of  de-  §§  306,  307.  308;  and  post  §1326. 
lay,  and  is  without  suggestion  as  ""  Leisse  v.  St.  Louis  &c.  R.  Co.. 
to  whether  the  obstruction  was  for  72  Mo.  5'^il :  McLaughlin  v.  Munici- 
a  daj-  or  a  year.  Moreover,  it  calls  iiality.  5  La.  .\nn.  504.  .See  also 
upon  us  to  say  that,  of  legal  ne-  I'ittsburg  t^^-c.  R.  Co.  v.  Swinney. 
ccssity,  the  intervention  of  three  97  Ind.  536:  Simpson  v.  Kansas 
and  one-half  years  between  the  City.  Ill  Mo.  237.  20  S.  W.  38. 
first  and  last  votes  would  of  itself  '•'^  Cooper  v.  .Anniston  &c.  R. 
and  under  all  circumstances  sub-  Co.,  85  Ala.  106.  4  So.  689.  36  Am. 
jcct  the  city  to  damages.     This  we  t^     Lug.     R.     Cas.     581.       See    also 


961 


PROCEDrUE  IX  APPKOPKIATIOX  CASES 


§1324 


question  whether  the  corporation  was  S^-^lty  of  such  a  culpable 
and  unreasonable  delay  in  the  prosecution  and  abandonment  of 
proceedings  to  take  land  for  its  use  as  to  amount  to  actionable 
negligence  was  a  question  for  the  jury.^^  In  most  of  the  cases, 
how^ever,  in  which  it  has  been  sought  to  charge  a  corporation 
with  damages  due  to  the  abandonment  of  condemnation  proceed- 
ings, before  confirmation  or  possession  taken,  the  courts  have 
denied  the  right  to  recover.'^  In  several  of  the  states,  it  is  pro- 
vided by  statute  that  the  owner  may  recover  damages  for  any 
unreasonable  delay  in  prosecuting  or  abandoning  condemnation 
proceedings  which  are  not  promptly  carried  to  an  issue  and 
followed  by  payment  of  the  damages  awarded,  or  for  damages 
done  by  cutting  or  grading  in  the  construction  of  the  road  upon  a 
location  which  is  afterward  abandoned.' *  Such  damages  must  be 
sought  in  a  separate  suit,'^  unless  the  statute  fixes  the  damages  in 


Simpson  v.  Kansas  City,  HI  iMo. 
237,  20  S.  W.  38. 

"Mayor  &c.  v.  Black,  56  Md. 
333. 

"  Bergman  v.  St.  Paul  &c.  R. 
Co.,  21  Minn.  533;  Martin  v. 
Brooklyn,  1  Hill  (N.  Y.)  545; 
Whyte  V.  Kansas,  22  Mo.  App.  409: 
Feiten  v.  Milwaukee,  47  Wis.  494, 
2  N.  W.  1148:  Carson  v.  Hartford, 
48  Conn.  68.  In  the  first  case  cited 
the  plaintiff  sought  to  recover  for 
his  loss  of  time,  attorney's  fees 
and  expenses  in  defending  a  con- 
demnation proceeding  begun  by 
the  defendant  and  afterward  aban- 
doned. The  court  said:  "Tf  the 
plaintifif  is  entitled  to  recover,  it 
must  by  virtue  of  some  contract, 
express  or  implied,  or  of  some  pos- 
itive rule  of  law  conferring  upon 
him  a  right  of  action,  or  upon  the 
ground  that  defendant  has  been 
guilty  of  tort.  Certain]}-  there  is 
no  contract  here,  nor  is  tlierc  any 
positi\-e  rule  of  law  upon  which 
the  plaintiff  can  base  a  I'iglit  of 
action.      Xcitlicr    is    there    amthing 


in  the  complaint  tending  to  show 
any  tortious  or  malicious  conduct 
on  the  part  of  the  defendant.  On 
tlic  contrary,  defendant's  proceed- 
ings are  expressly  admitted  to 
have  been  duij-  and  regularly 
taken,  and  there  is  nothing  what- 
ever to  raise  a  suspicion  that  de- 
fendant's motives  in  instituting, 
conducting  or  dismissing  the  pro- 
ceedings were  not  entirely  proper. 
In  other  words  the  complaint  does 
not  set  up  a  cause  of  action  in  tort, 
nor   assume   to   do   so." 

"*  Such  damages  may  be  recov- 
ered in  the  absence  of  any  statute 
in  states  where  the  constitution  re- 
(juires  the  payment  of  damages 
to  precede  the  taking,  if  the 
corporation  secures  possession  of 
the  property  under  an  award 
which  is  set  aside,  and  the  pro- 
ceedings are  afterward  discontin- 
ued. Pittsburgh  &c.  R.  Co.  Swin- 
ney.  97  Ind.  586. 

"•'■'  Drury  v.  Boston,  101  .Mass. 
439. 


jj  1325  I!  AILHOADS  "  062 

sonic  way  l)v  which  they  can  he  detniilely  ascertained  and  ex- 
pressly authorizes  the  assessment  of  such  daniag-es  ui)()n  dis- 
missal of  the  condemnation  suit."''  Wui  a  railroad  coni])any 
which  dismisses  condemnation  proceedings  and  withdraws  the 
condemnation  money  will  be  estopped,  when  sued  by  the  land- 
owner, to  claim  that  the  dismissal  was  ineffectual  and  that  the 
land-owner  should  be  re(|uire(l  to  ha\e  his  damages  assessed  in 
the  condemnation  prcjceedings."^ 

§  1325  (1032a).  Dismissal — Other  cases. —  It  has  been  held 
that  where  the  i)roperty  is  sought  to  be  condemned  for  a  purpose 
which  is  partly  legal  and  partly  illegal,  and  it  can  not  be  de- 
termined how  much  of  the  property  is  necessary  for  the  purpose 
that  is  legal,  that  the  proceedings  will  be  dismissed  as  an  en- 
t'retv.'-  It  has  also  been  held  that  the  dismissal  of  proceedings 
to  condemn  land  for  railroad  purposes,  as  to  a  portion  of  the 
joint  owners,  for  want  of  service,  is  practically  a  dismissal  as  to 
all,  since  it  leaves  the  court  without  ])ower  to  proceed  further 
with  the  inquest.''  And  in  another  case  it  was  held  proper. 
\\  here  there  had  been  an  inexcusable  delay,  for  the  court  to  dis- 
miss the  proceedings  for  want  of  prosecution.'"' 

■''.Minneapolis      &f.      R.      Co.      v.  ct'c'(Iin,ii-    by    wliich    tliv    corpiiration 

Woodwortli,    32    Minn.    452.    21     N.  should    he    allowed    to    dispute    the 

W.    476.      In    this    case    the    >lalule  amount   of   the   attorney's   fees   was 

provided   that    if   damages    awarded  necessary    ni    order    to    the    allow- 

were    not    paid     witliin     sixty    day-  anee   of  the  same,  and   tliat   the   al- 

after    the    entry    of    final    jud.i.inK'nt  louance    of    a    fee    of    $50    for    the 

the   proceedings   should   be   deemed  land-owner's    counsel,    upon    a    dis- 

to  be  abandoned,  and  the   party   in  missal  of  iJroceediuRS  for  non-pay- 

whose    favor   the   award    was    made  ment  of  the  award   was   unwarrant- 

might      have      judgment       entered  ed.   and  could   not  be   sustained, 

against    the    corporation    for    dam-  '"  Enid   &c.    R.    Co.   v.   Wiley.    14 

ages   at   the    rate    oi   ten    per    cent.  Okla.  310,   78   Pac.   96. 

from    tlic    date    of    the    award.      I'.y  "~^  Metropolitan    Elevated    R.   Co., 

another      statute      the      land-owner  in  re,    12  N.  Y.  S.  506. 

was  permitted  to  recover  his  costs  '"Grand    Rapids    &c.    R.    Co.    v. 

and  expenses  in  an  abandoned  con-  Alley,  34   Mich.   16. 

demnation      proceeding,      including  '"'  Sanitary    Dist.    of    Chicago    v. 

reasonable      attorney's      fees.     The  Chapin.  226  111.  499,  80  N.  E.  1017. 
court    held    that   an   adversary   pro- 


963  PROCKni-RK    1\    AIM'KOI'KIATION    CASES  §1326 

§1326  (1033).  Abandonment  of  proceedings. — The  general 
rule  is  that  a  railroad  company  may,  unless  restrained  by  statute, 
dismiss  its  proceedings  to  condemn  land  at  any  time  before  the 
rights  of  the  parties  have  become  vested,  which  in  some  juris- 
dictions is  on  payment  and  taking  possession  and  in  others  on 
judgment  of  confirmation  or  final  judgment.*'  And  this  it  may 
do  even  though  it  has  obtained  possession  of  the  premises  pend- 
ing proceedings  by  depositing  in  court  a  sum  of  money  to  secure 
the  payment  of  the  assessed  damages.--  But  where  the  company 
has  taken  j^ossession  pending  the  proceedings,  an  abandonment 
of  the  proceedings  forfeits  its  right  to  possession,**^  and  renders 

"  See  Eureka  &c.   R.  Co.  v.   Mc-  it    is    held    tliat    the    judgment    for 

Grath,  74  Cal.  49.   15   Pac.  360;   St.  damages  should  be  absolute  where 

Louis    &c.    R.    Co.    V.     Martin,    29  the   company  is   already  in   posses- 

Kans.    750:     Manion     v.     Louisville  sion    of    the    premises.     St.     Louis 

&c.   R.   Co..  90   Ky.  491.   14   S.   W.  &c.    R.    Co.   v.   Teters.   68    III.    144. 

532;  Kremer  v.  Chicago  &c.  R.  Co.,  See  Witt  v.  St.  Paul  &c.  R.  Co.,  35 

51  Minn.  15.  52  N.  W.  977.  38  Am.  Minn.  404,  29  N.  W.  161;  Alabama 

St.  468;   North   Missouri  R.   Co.   v.  &c.  R.  Co.  v.  Newton,  94  Ala.  443, 

Lackland,    25    Mo.    515.     See    also  10   So.   89;   Crolley   v.    Minneapolis 

Chicago  V.  Goodwillie.*208  111.  252.  &c.    R..    30    ^linn.    541.    16    N.    W. 

70     N.     E.    228;     Terre     Haute     v.  422;    Wilcox    v.    St.    Paul     &c.    R. 

Sacks,   171   Ind.  679,  86   N.    E.  45;  Co.,  35   Minn.  439,   29  N.  W.   148; 

and  elaborate  note  to  Cunningham  Kremer  v.   Chicago   &c.   R.   Co.,  51 

V.  Memphis  R.  &c.  C<i.  (126  Tcnn.  Minn.    15.    52    N.    W.    977;    North 

343,    149    S.    W.    103)    in    Ann.    Cas.  Missouri    R.    Co.    v.    Lackland,    25 

1913E.    1058;    where    the    particular  Mo.    515j    Cape    Girardeau    &c.    R. 

rule     prevailing     in     each     of     the  Co.    v.   Dennis,   67   Mo.  438;   Drath 

states     is     given     with     sujiporting  v.  Burlington  &c.   R.  Co.,   15  Nebr. 

authorities.  2(>7,    18    N.   W.    717;    Hull    v.    Chi- 

S2  Union  &c.  Co.  v.  Slec,  123  111.  cago  &c.   R.  Co.,  21   Nebr.  371.  Z2 

57,  12  N.   E.  543;   Leavenworth  &c.  N.    W.    162;    Syracuse    &c.    R.    Co.. 

R.   Co.  V.   Whitaker.   42   Kans.  634,  In   re,  4   Hun    (N.  Y.)  311;   Rhine- 

22   Pac.   yH:    Manion    v.    Louisville  beck   &c.    R.    Co.,    In    re.   67   N.    V. 

&c.   R.   Co..   90   Ky.  491.    14   S.  W.  242;    Dayton    &c.    R.    Co.    v.    Mar- 

532.  47   Am.   &    Eng.    R.   Cas.    107;  shall.  11  Ohio  St.  497;  State  v.  Cin- 

Chicago   &c.    R.    Co.   v.   Gates.    120  cinnati    &c.    R.    Co.,    17    Ohio    St. 

111.    86.    11    N.    E.    527,    30    Am.    &  103;  Pittsburgh  &c.  R.  Co.  v.  Peet, 

Eng.   R.   Cas.   268;   Denver   &c.    R.  152  Pa.    St.  488.  25  Atl.  612.   19   L. 

Co.  v.  Lamborn.  8  Colo.  380,  8  Pac.  R.    A.    467. 

582.     See  Pittsburgh  &c.  R.  Co.  v.  ^-^  Witt  v.  St.  Paul  &c.  R.  Co..  35 

Swinnev.   97   Tnd.   586.      In    Illinois.  Minn.     404.     29     N.     W.     161.     See 


ijl326 


RAILROADS 


964 


the  company  a  trespasser  ab  initio  and  liable  as  such  for  all  dam- 
ages done  while  it  held  possession.^*  The  fact  that  the  damages 
have  been  assessed  does  not  destroy  the  right  to  abandon  such 
proceedings,  if  the  assessment  is  afterward  set  aside  on  appeal.^' 
Indeed,  the  weight  of  authority  holds  that  the  effect  of  proceed- 


Hastings  v.  Burlington  &c.  R.  Co., 
38  Iowa  316;  Pittsburgh  &c.  R. 
Co.  V.  Swinney,  97  Ind.  586:  Skill- 
man  V.  Chicago  &c.  R.  Co.,  78 
Towa  404,  43  N.  W.  275,  16  Am.  St. 
452;  Wilcox  v.  St.  Paul  &c.  R.  Co.. 
35  Minn.  439,  29  N.  W.  148;  Green 
V.  Missouri  &c.  R.  Co.,  82  Mo. 
653;  Hatch  v.  Cincinnati  &c.  R. 
Co.,  18  Ohio  St.  92;  Cincinnati  &c. 
R.  Co.  V.  Zinn,  18  Ohio  St.  417: 
First  National  Bank  v.  West  River 
&c.  R.  Co.,  49  Vt.  167. 

84  Pittsburgh  &c.  R.  Co.  v. 
Swinney,  97  Ind.  586;  Van  Valken- 
burgh  V.  Milwaukee,  43  Wis.  574; 
Lee  V.  Northwestern  U.  R.  Co.,  33 
Wis.  222;  Ilullin  v.  Second  Muni- 
cipality, 11  Rol).  (La.)  97,  43  .\m. 
Dec.  202.  See  however  Louisville 
&c.  R.  Co.  V.  Ryan,  64  Miss.  399,  8 
So.  173.  The  license  which  the 
statute  confers  upon  a  railroad 
company  to  take  possession  of 
land  pending  proceedings,  upon 
paying  into  court  the  damages  as 
originally  assessed  by  the  commis- 
sioners, is  upon  the  implied,  but 
none  the  less  evident  condition 
that  the  company  will  proceed  in 
good  faith,  and  without  unneces- 
sarj'  delay,  to  linvc  the  aMiouiit. 
which  it  will  be  required  to  pay 
for  the  land,  ascertained  and 
finally  established,  and  that  it  will, 
within  a  reasonable  time  there- 
after, pay  to  the  owner  tlie  amount 
thus     finally     established.     Lee     v. 


North  Western  R.  Co.,  33  Wis. 
222;  Chicago  v.  Barbian,  80  111. 
482:  Pittsburgh  &c.  R.  Co.  v. 
Swinney,  97  Ind.  586.  See  gen- 
erally Leisse  v.  St.  Louis  &c.  R. 
Co.,  72  Mo.  561;  Centralia  &c.  R. 
Co.  V.  Henry,  31  111.  App.  456; 
Gibbons  v.  Missouri  &c.  R.  Co..  40 
Mo.  App.  146;  Lohse  v.  Missouri 
&c.  R.  Co.,  44  Mo.  App.  645;  Pitts- 
burgh &c.  R.  Co.  V.  Reed  (Pa.  St.), 
6  Atl.  838,  34  Pitts.  L.  J.  191; 
Lyon  V.  McDonald.  7f^  Texas  71, 
14  S.  W.  261,  9  L.  R.  A.  295  and 
note.  47  Am.  &  Eng.  R.  Cas.  217. 
In  Pine  BlufT  &c.  R.  Co.  v.  Kelly 
78  Ark.  83,  93  S.  W.  562,  it  is  held 
that  where  the  company,  on  insti- 
tuting proceedings  to  condemn 
land  for  a  right  of  way,  took  pos- 
session, and  used  it  for  a  short 
time,  and  then  abandoned  it.  the 
measure  of  (himages  is  the  rental 
value  oi  the  land  taken  for  the 
liine  it  was  occupied,  and  the  de- 
preciation in  the  value  thereof  by 
reason  of  acts  done  thereon,  and 
the  damage  resulting  to  the  other 
land  from  the  building  of  the 
road  and  from  flooding  caused  by 
the  construction  thereof,  the  time 
of  the  occupancy  being  considered, 
and  that  for  all  other  damages  oc- 
casioned torts  done  by  the  com- 
pany the  owner's  remedj^  is  i)y  ac- 
tion to  recover  the  same. 

85  Wright    V.    Wisconsin    Central 
R.   Co.,  29  Wis.  341;   Vail  v.   Fall 


965 


PROt:Kl>rKH   IX    AIM'HOI'RIATION'   CASES 


§1326 


ing-s  for  coiulenmation  is  simply  to  fix  the  price  at  which  the 
party  condemning"  can  take  the  property,  unless  the  statute  gives 
it  some  greater  effect,  and  that  the  company  may,  within  a  rea- 
sonable time  after  the  judgment  or  confirmation,  abandon  its 
proceedings  without  incurring  any  liability  to  pay  the  damages 
awarded. ■'""'  Where,  however,  the  company  has  taken  possession 
pending  proceedings,  under  a  statute  permitting  it  to  proceed 
with  the  construction  of  its  road  upon  paying  or  securing  the 


Creek  Tump.  Co..  32  Ind.  198. 
When  the  circuit  court  ordered  a 
new  appraisement  of  the  land  the 
award  of  the  appraisers  ceased  to 
he  of  binding  force  upon  the 
parties.  .  .  .  The  subsequent  dis- 
missal of  the  proceedings  did  not 
reinstate  the  award  for  any  pur- 
pose. Pittsburgh  &c.  R.  Co.  v. 
Swinney.  97  Ind.  586,  594.  See 
also  Denver  &c.  R.  Co.  v.  Lam- 
born.  8  Colo.  380,  8  Pac.  582. 

80  Baltimore  &c.  R.  Co.  v.  Nes- 
bit,  10  How.  (U.  S.)  395,  13  L.  ed. 
469:  Denver  &c.  R.  Co.  v.  Lam- 
born,  8  Colo.  380,  8  Pac.  582:  St. 
Louis  &c.  R.  Co.  v.  Teters.  68  Til. 
144:  Peoria  &c.  R.  Co.  v.  Rice.  75 
111.  329;  Winkelman  v.  Chicago. 
213  III.  360,  72  N.  E.  1066;  Evans- 
ville  &c.  R.  Co.  V.  Miller.  30  Ind. 
209:  Gear  v.  Dubuque  &c.  R.  Co.. 
20  Iowa  523,  89  Am.  Dec.  550:  St. 
Louis  &c.  R.  Co.  V.  Wilder,  17 
Kans.  239:  City  of  Kansas  v.  Kan- 
sas Pac.  R.  Co..  18  Kans.  331; 
Elizabethtown  &c.  R.  Co.  v. 
Thompson.  79  Ky.  52;  Black  v. 
Baltimore,  50  Md.  235.  33  .\m.  Rep. 
320;  Commonwealth  v.  Blue  Hill 
Turnp.  Co..  5  Mass.  420;  Derby  v. 
Gage.  60  Mich.  1,  26  N.  W.  820; 
Williams  v.  New  Orleans  &c.  R. 
Co..  60  JNIiss.  689;  State  v.  Hug,  44 
Mo.  116;  State  v.  Cincinnati  .^-c.  R. 


Co.,  17  Ohio  St.  103;  Oregon  R. 
Co.  V.  Bridwell,  11  Ore.  282,  3  Pac. 
684;  Schuylkill  &c.  Nav.  Co.  v. 
Decker,  2  Watts  (Pa.)  343;  Stacey 
V.  Vermont  Central  R.  Co.,  27  Vt. 
39;  Chesapeake  &c.  R.  Co.  v. 
Bradford,  6  W.  Va.  220;  State  v. 
Mills,  29  Wis.  322.  See  also 
Georgia  R.  &c.  Co.  v.  ]\fooney,  147 
Ga.  212,  93  S.  E.  206;  Kenakanni  v. 
United  States,  244  Fed.  923.  The 
subject  is  also  considered  in  Ford 
V.  Board.  148  Iowa  1.  126  N.  W. 
1030.  and  notes  in  Ann.  Cas.  1912B, 
940.  and  1916D.  709  (showing  that 
while  there  is  in  general  no  liabil- 
ity to  pay  the  award  in  such  a 
case,  there  is  conflict  of  authority 
as  to  whether  costs  and  other  spe- 
cial damages  can  be  recovered,  and 
in  many  states  this  is  governed  b}' 
statute)!  The  courts  of  Kansas 
hold  that  the  fact  that  a  railroad 
company  has  conducted  proceed- 
ings to  condemn  land  to  comple- 
tion, and  has  deposited  the  con- 
demnation monej'  with  the  county 
treastn-er,  does  not  prevent  it  from 
reclaiming  the  deposit,  if  it  has 
made  no  actual  entry  on  the  land, 
and  has  abandoned  its  intention  to 
use  the  land  for  such  purpose,  and 
has  given  notification  thereof.  At- 
chison &c.  R.  Co.  v.  Wilson,  6o 
Kans.  233.  69  Pac.  342. 


<5  lcl2tj  RAILROADS  966 

damag^es  awarded  by  the  commissioners,  an  absolute  personal 
judgment  should  be  rendered  for  the  damages  assessed  on  a])- 
peal.**'  The  courts  of  Illinois  hold  that  where  the  right  to  aban- 
don condemnation  proceedings  is  absolute,  the  defendant  is  not 
entitled  on  such  dismissal  to  recover  counsel  fees  and  exj)enses 
in  defending  the  same  unless  the  statutes  authorize  their  re- 
covery.'*'* The  permission  to  take  possession  pending  proceed- 
ings is  necessarily  upon  the  implied  condition  that  the  company 
will  pay  to  the  owner  the  value  of  the  land  taken  as  hnally  as- 
certained and  determined.®-'  In  Nebraska,  the  supreme  court  has 
held  that  a  final  judgment  on  appeal  from  an  assessment  of  dam- 
ages stands  on  the  same  footing  as  any  other  judgment,  and  that 
execution  may  issue  to  collect  the  same  without  regard  to  the 
future  intentions  of  the  company ,"°  and  a  similar  conclusion  has 
l^een  reached  by  the  court  of  appeals  of  New  York.''^  Where  the 
statute  provides  for  issuing  an  execution   upon   the  award   it  is 

^^  Peoria   &c.   R.   Co.   v.   Mitchell.  confirmed.     Heale   v.    Pennsj-lvania 

74  111.  394:  St.   Louis  &c.  R.  Co.  v.  R.   Co..  86   Pa.  St.  509. 

Tetcrs.  68   111.   144;   Carr  v.    Boone.  •''''  Winkelnian     v,     Chicago,     213 

108  Ind.  241,  9  N.  E.  110;  Harne.s.s  111.    360.    11    N.    E.    1066.     See   also 

V.    Chesapeake    &c.    Canal     Co.,     1  Denver  &c.  R.  Co.  v.  Mills.  59  Colo. 

Md.  Ch.  248;  Curtis  v.  St.  Paul  &c.  198.  147  Pac.  681.  Ann.  Cas.  1916E, 

R.    Co..   21    Alinn.    497;    Robbins    v.  985    and    note;    .McCready     v.     Rio 

St.   Paul   &c.   R.   Co..  24  Minn.   191.  Grande   &c.   R.    Co.,  30   Utah    1.   83 

Contra  Denver  &c.  R.  Co.  v.  Lam-  Pac.  331,  8  .\nn.  Cas.  1ZI\  Gibbs  v. 

born,   8  Colo.   380,  8   Pac.   582.      In  Re.x.   (Can.),  Ann.   Cas.   1916D.  709. 

Louisville   &c.   R.   Co.   v.   Ryan.   64  ^•'  Lee  v.  Northwestern  V .  R.  Co., 

Miss.   939.   8   So.    173,    it    was    held  7^i  Wis.  111. 

that  the  company  should  be  left  at  ""  Drath  v.  Burlin^tun  <!^-c.  R.  Co.. 

liberty     to    abandon     the     location  15   Nebr.   367,   18   N.   VV.   717;    Diet- 

and    become   liable   as   a   trespasser  richs    v.     Linc<iln     &;c.     R.     C<i.,     12 

if  it  so  desired,  and  that  a  personal  Nebr.     111.     10     N.     W.     718.     See 

judgment  was  erroneous.  In  Penn-  Brown    v.    Chicago    &c.    R.    Co.,    64 

sylvania,  the  location  of  a  railroad  Nebr.  62,  89  N.  W.  405,  where  it  is 

constitutes  an  appropriation  of  the  held   that  a   raih^nad   company,   hav- 

land,    and    the    right    of    the    land-  ing    abandoned    a    right    of    way.    is 

owner     to     damages     therefor    be-  estopped     to     aliandon     it.     and     is 

comes  vested   as   soon   as   they  are  bound    to    ])ay    the    award     to    the 

assessed,  and   can   not  be   divested  land-owner. 

by  a  change  of  location   made  be-  '"  Rhinebeck   &c.    R.    Co.,    Matter 

fore   the    commissioner's   report    is  of,  67   N.   V.  242. 


967  HROCKDIKK    IN    A  I'l'KOl'HIA'l'M  ).\    CASES  §  1;)2(J 

lield  that  the  raih-oad  coinpan}'  can  not  a\oicl  its  liability  nor  de- 
feat the  land-owner's  right  to  an  execntion  b}-  the  abandonment 
of  its  location.'-  An  abandonment  of  the  proceedings  may  be 
evidenced  bv  a  failnre  to  pay  the  damages  awarded  within  a  rea- 
sonable time.''  as  well  as  by  at¥irniati\e  acts  done  with  that  end 
in  \ie\v.  In  some  states  the  time  within  which  proceedings  to 
condemn  nuist  be  abandoned  and  the  acts  which  will  constitute 
an  abandonment  are  ])rescribed  by  statute.  Tlius  under  a  stat- 
ute in  Missouri,  the  railroad  com[)an)-  ma}',  "within  ten  days 
from  the  return  of  the  assessment,  elect  to  al^andon  the  proposed 
appro])riation  of  the  land  by  an  instrument  in  writing  to  that 
effect  to  be  hied  with  the  clerk  ;"  and  a  failure  to  file  such  an 
instrument  within  ten  days  fixes  the  rights  of  the  ])arties  under 
the  assessment.-'*  The  courts  of  that  state  hold  that  the  railroad 
on  abandoning  the  proceedings  is  liable  to  the  property  owner 
for  all  C(,)sts  and  expenses,  including  attorney's  fees,  in  resisting 
the  proceedings.-'"'  In  Tennessee,  the  petitioner  on  the  trial  on 
appeal  can  not  dismiss  the  proceeding  as  to  a  portion  of  the 
land  sought  to  be  condemned  merely  because  in  its  opinion  the 
damages  assessed  were  too  high.'"'  In  states  where  compensa- 
tion is  not  required  to  precede  the  taking,  the  legislature  may 
authorize  a  railroad  corporation   to  ac(piire  title  to  lands  before 

'■'-  Xeal   \-.   l'ittsl)urt;li   (!i:c.   R.   Co..  73  Am.  Dec.  575.     See  Cliicago  &c. 

31   ['a.  St.  19.     .After  a  railroad  had  R.  Co.   v.   Chamberlain,  84   111.  333: 

been  partly  constructed  over  plain-  Pittsburgh   &c.   R.   Co.   v.   Peet.   152 

tiff's    land,    and    after    the    damages  Pa.  St.  488.  25  .\t\.  612,  19  L.  R.  .A. 

therefor   had  been  awarded,  an  act  467;    Ross   v.    Pennsylvania    Co..    17 

was  passed  providing  that,  in  case  Phila.  339;  Mehle  v.  New  York  &c. 

the    route    was    abandoned    before  R.  Co.,  86  Tex.  459,  25  S.  W.  607. 

the  payment  of  damages  the  owner  See   also  Alabama    ^^lidland   R.   Co. 

should  receive  only  his  actual  dam-  v.   Newton.  94  .-Ma.   443.   10  So.  89; 

ages.     It  was  held  that  the  right  of  Minneapolis   &c.    R.    Co.   v.   Wood- 

the  owner  to  tlie  damages  awarded  worth.  32  .Minn.  452.  21   N.  W.  476. 

was    complete    before    the    act   was  ■'*  Gray  v.  St.  Louis  (!tc.  R.  Co..  81 

passed,  and  was  not  affected  by  it.  Mo.    126. 

Smart    v.    Portsmoutli    i*v:c.    R.    Co.,  '■>'<  Sterrett    v.    Delmar    .\ve.    &C. 

20   N.   H.  233.  Ry.  Co..  108  Mo.  App.  650,  84  S.  W. 

"=^  State  V.  Cincinnati  &c.  R.  Co.,  150. 

17  Ohio  St.   103;   Rensley  v.   .Moun-  '■"■Union      R.      Co.      v.      Standard 

tain    Lake   Water    Co..   13    Cal.   306,  Wheel  Co.,   149   Fed.  698. 


;^  1326  RAILROADS  968 

the  institution  ijf  proceedings  to  ascertain  their  \alue.  In  such 
case,  the  abandonment  of  proceedings  subsequently  Ijvought  for 
this  purpose  does  not  afifect  the  land-owner's  right  to  compen- 
sation for  the  original  taking  and  he  may  enforce  payment  of  the 
value  of  his  land,  although  the  compan}-  nc\  er  actually  occupies 
the  property."'  In  Pennsylvania,  it  is  held  that  the  right  to 
damages  vests  upon  the  location  of  a  railroad,  and  that  a  change 
of  location  Ijcfore  the  confirmation  of  the  commissioner's  report 
will  not  defeat  this  right.^*  In  Wisconsin  the  railroad  company 
may  not,  after  the  filing  of  the  commissioner's  report,  dismiss 
the  proceeding.  The  filing  is  regarded  as  a  judgment  fixing  the 
lights  of  the  parties."^  In  Illinois  it  is  held  in  a  case  where  there 
was  an  abandonment  after  an  entry  of  judgment  of  condemna- 
tion that  the  measure  of  damages  to  which  the  land-owner  was 
entitled  was  the  difiference  between  the  value  of  the  land  at  the 
time  he  could  have  sold  it,  but  for  the  pendency  of  the  condem- 
nation proceedings,  and  its  value  at  the  time  the  proceedings 
were  dismissed.^  The  fact  that  proceedings  for  the  condemna- 
tion of  property  have  been  abandaned,-  does  not  bar  a  new 
proceeding  in  good  faith  for  the  same  purpose.^  Where  the 
statute  provided  that  a  failure  to  pay  for  or  take  possession  of 
the  land  condemned  for  six  months  after  the  assessment  of  com- 
pensation should  avoid  the  effect  of  the  judgment,  and  cause  a 
forfeiture  of  all  the  rights  of  the  corporation  in  such  land,  it 
was  held  that  after  the  lapse  of  six  months  new  proceedings 
could  be  instituted  to  take  the  same  land.* 

".IT  Welles  V.  Cowles,  4  Conn.  182,  l)in  v.  Cedar   Rapid.s   &c.  R.  Co.,  66 

10   Am.    Dec.    115;    Briggs    v.    Cape  Iowa   73,  23   N.   W.  270;   Cincinnati 

Cod  &c.  Co.,  137  Mass."  71;  Kimball  .Southern    R.  Co.  v.   Haas,  42  Ohio 

V.   Rockland,  71    Maine   137.  St.  239.     But  see   where  the  ahau- 

"^  Beale   v.    Pennsylvania   R.    Co.,  donment  was  in  bad  faith,  Chicago 

86  Pa.  St.  509.  &c.  R.  Co.  v.  Chicago,  148  111.  479, 

"'' Sprague  v.  Northern  Pac.  R.  36  N.  E.  12.  Neither  does  the  pro- 
Co.,   122  Wis.  509,   100  N.  W.  842.  secution  to   final  judgment  of  pro- 

1  Winkelman  v.  Chicago,  213  111.  cccdings  which  are  so  defective  as 
360,  72  N.  E.  1066.  not  to  transfer  the  title  of  the  prop- 

-  Corbin  v.   Cedar  Rapids  &c.   R.  crty  sought.     State  v.  Dover  «&c.  R. 

Co.,  66  Iowa  li,  23  N.  W.  270.  Co.,  43  N.  J.  L.  528. 

2  Alabama  Midland  R.  Co.  v.  "*  Trustees  Cincinnati  So.  R.  Co. 
Newton,  94  Ala.  443,  10  So.  89;  Cor-  v.  ITaas,  42  Ohio  St.  239. 


969  PROCEDURE  IN  APPROPRIATION  CASES  §  1327 

§  1327  (1034).  Meetings  of  commissioners  or  jurors. — If  the 
order  appointing  tlie  commissioners  fijces  a  time  and  place  of 
meeting-,  they  must  meet  in  obedience  to  the  terms  of  such  order, 
or  their  proceeding's  will  be  invalid.'"'  Where  the  proceedings 
are  in  a  court  of  general  superior  jurisdiction,  holding  regular 
terms  at  times  designated  by  a  public  law,  the  parties,  having 
proper  notice,  must  take  notice  of  the  time  of  holding  the  terms 
of  court  and  of  the  proceedings  of  the  court  during  term.''  Where 
the  commissioners  are  allowed  to  fix  the  time  and  place  of  meet- 
ing, and  are  required  to  give  notice  of  such  meeting  to  the 
land-owner,  notice  must  be  given.  After  the  jury  commission- 
ers have  met  in  obedience  to  the  order  on  motion  they  may 
adjourn  to  such  other  time  and  place  as  may  be  reasonably 
necessary  in  pursuing  their  investigations,  notice  of  such  ad- 
journment being  publicly  announced.'''  The  adjourned  meeting- 
should  be  regularly  convened  and  a  further  adjournment  had, 
ii  necessary,  that  the  continuity  of  the  original  meeting  may  not 
be  broken.^ 


5  State    V.    Capner,    49    N.    J.    L.  App.  25;  Board  v.  Magoon,  109  111. 

555,    9    Atl.    781:    Roberts    v.    VVil-  142;  Thorndike  v.  County  Commis- 

lianis,   13  Ark.  355;   State  v.   Horn,  sioners,    117    Mass.    566.     See    Ex- 

34    Kans.    556,    9     Pac.    208.     The  change  Alley,  Matter  of,  4  La.  Ann. 

parties    are    entitled    to    reasonable  4;     New    Orleans    &c.     R.     Co.    v. 

notice    of    the    time    and    place    of  Rougere,  23  La.  Ann.  803. 

meeting.     [Minneapolis    &c.    R.    Co.  "^  Goodwin     v.     Wethersfield.     43 

V.   Kannc,  32  ^Vmn.   174,   19  N.  W.  Conn.   437;    Polly   v.    Saratoga    &c. 

975,    17   Am.   &    Eng.    R.    Cas.    122;  R.  Co.,  9  Barb.  (N.  Y.)  449;  Leav- 

ATanhattan  &c.  R.  Co.  v.  Stroub,  68  enworth  v.   Meyer,  50  Kans.  25,  31 

Hun    90,    22    N.    Y.     S.    602.     See  Pac.    700;    Butman    v.    Fowler,    17 

Rheiner    v.    Lhiion    &c.    R.    Co.,    31  Ohio    101.     See    Memphis    &c.     R. 

Minn.  289,  17  N.  W.  623;  Williams  Co.  v.   Parsons   &c.,  26   Kans.   503: 

V.  Hartford  &c.  Co.,  13  Conn.  397;  Michigan    &c.    R.    Co.    v.    Probate 

Chicago    cS:c.    R.    Co.    v.    Chamber-  Judge,  48  Mich.  638,  14  Am.  &  Eng. 

lain,  84  111.  333;  Roosa  V.  St.  Joseph  R.    Cas.    351;    Masters    v.    McHol- 

&c.  R.  Co.,   114  Mo.  508,  21   S.  W.  land,   12   Kans.  17;   Commonwealth 

1124:  \'irginia  &c.  R.  Co.  v.  Love-  v.    County   Commissioners,  8   Pick. 

joy,  8  Nev.  100;  State  v.  Capner,  49  (Mass.)    343;    Pegler    v.    Highway 

N.  J.  L.  555,  9  Atl.  781;  Ruhland  v.  Commissioners,  34  Mich.  359. 

Jones,  55  Wis.  673.   13  N.  W.  689;  «  State  v.  Capner,  49  X.  J.  L.  555. 

Gill   V.    Milwaukee    &c.    R.    Co.,   76  9    Atl.    781:    McPhcrson    v.    Hojd- 

Wis.  293,  45  N.  W.  23.  ridge,  24  Til.  38. 
''  .St.    Louis    V.    Gleason,    15    Mo. 


:<  l;j2S  K.\iLW()Ai>s  !)70 

§1328  (1035).  Open  and  close. —  In  New  York  it  has  l)een 
held  that  it  rests  in  the  dij^cretion  of  tlie  commissioners  to  decide 
which  i)artv  shall  open  and  close.''  ]n  some  states  the  land- 
owner has  been  held  entitled  to  this  ])ri\ile,^e.  as  ha\in,^-  the 
affirmative  of  the  issue  as  to  the  \alue  of  the  land.'"  while  in 
others  this  rii^ht  has  been  held  to  be  with  whichever  party  brings 
the  action."  There  is  nuicli  c-onllicl  ol  opinion,  and  a  general 
rule  can  not  be  safely  stati'd.'-  Imt  the  better  rule  would  seem 
to  lie  that  where  the  railroad  company  institutes  the  proceedings 
and  has  the  l)urden  (»1  prcxif  it  should  ha\e  the  open  and  close.''' 

§  1329  (1035a).  Evidence  generally. — As  upon  the  cpiestion 
of  the  right  to  o])en  and  close,  so  ui)on  the  cpiestion  as  to  the 
luu'den  of  i)roof,  there  is  some  conllict  among  the  authorities, 
but   nuicli   de])ends  u])on   the  particular  (|Uestion   and    llie   way   in 

•'All.any   &c.    R.    Co.   v.    Laiisin-,  C.ok.    lOi    hid.    1.?,?.  2u   X.   W.  2(U: 

16  liarl).  (  X.  ^'.)  6<S:  Now  \'nvk  <S;c.  d  mnniicul   t^c.    R.   C<>.   v.   Clapp.    1 

K.  Cn..    In  vv.  ,1.1    llun    (X.   \.)    148.  Cu>h.    (Mass.)    55^^.     lUirt    v.    Wii-- 

Sco    to   the    same    effect    Charle>tor,  .uicswi  irtli.  117  .\las>.  ,i()J:  Si.  Louis 

&c.    R.    Co.    V.    I'.lake,    12    Rich.     I..  iK:c.    R,    d.    \-.    X.irtli,   M    .Mo.    .Xp;). 

(S.  Car.)  6o4.  .i4.i;   Omaha   eK:c.    R.    Co.   v.    Walker, 

1"  Spriiii-tield  (.Krc.   R.  Co.  v.   Rhea,  17  Xehr.  432,  2.5   X.  W.  ,i48:   .\b)rris 

44  .\rk.  258:    I'.vaiisville   &-c.    R.   C".  iK:c.    R.    Co.    v.    I'.onnell.   .i4    X.   J.    1.. 

V.    Miller.  M)    liid.  20');    Indiana    &c.  474;   Oregon  cK:c.    R.   Co.   v.    Harlow. 

R.    Co.    V.    C.ii.k.    102     Ind.    Lvi,    2(>  ,i    Ore,   ,ill:    C.ainesville    cS:c.    R.    Co. 

N.    li.    20.5:    Cimneeticnt     River     R.  v.    Wajjles.   ,i    Tex.    .\pp.    Civil    Cas. 

Co.  V.   Clap]).    1    Cnsh.    (.\[ass.)    5,S*;:  482:      I'.ellinoham     .\:c.      R.     Co.     v. 

r.url    V.    VViK,^Icsw.n-lh.    117     .Ma-^.  .Sir.iiid,  4  Wash.  ,il  1,  ,i()  Pac.  144.  .M 

.302:     -Minnesota     X'alley     R.     Co.     v.  .\m.    iK:     Rn-.    R.    Ca^.    M)8:    .Si-attle 

Doran,    17    .Minn.    188:    St.    Raul    t^-c.  cK:e.    R.    Co.    v.    Mm-phme,    4    Wash. 

R.    Co.    V.    .Muri)hy.    19    .Minn.    500:  448.    M)     I'ae.    720.      See    also    "The 

Omaha   &c.    R.    Cn.    v.    Cmslead.    17  ]\i,L;lit   to  he^i"  .'ind  I'ep'y  '"   Siiecial 

Xehr.    459.   2.S    X,    W.   ,350:    (h-eyon  1 'roeeedin-s."    25    Cent.     I..    J.    483. 

iS:c.    R.    Co.   V.    barlow.   3    Ore.   311:  '•■Williams   v.    .Macon   .\:c.   R.  Co.. 

Charleston   c^e.   R.   C.  v.    blake.    12  94    C,a.    709.   21    S.    l'..    9')7;    .McRey- 

Rich.    P.   (S.   Car.)   634.  nolds  v.   I3urlin-ton   X-c.   K.  Cc.   106 

"  McReynolds   v.   burlin.-ton   cK:c.  111.    K52:    JM.   Worth    &c.    R.    Co.    v. 

R.  Co.,   106    III.   152:   Baltimore   <!<:c.  Culver   (Te.x.   Civ.   .\pp.),   14   S.   W. 

R.  Co.  V.  INltshurgh  &c.  R.  Co.,  17  1013:  Seattle  &c.  R.  Co.  v.  Cilchrist. 

W.    Va.    812;    Montgomery    &c.    R.  4   Wash.   509,    30    Rac     738:    Seattle 

Co.  .V.  Sayrc.  72  Ala.  443:   Harrison  (!tc.    R.    Co.    v.    .Murphine,    4    Wasli. 

V    Young.  9  Ga.  359.  448.  30   Pac  720:    I'.altiniMic  ,'vc.    R. 

i-Si)ringfiel(l  &c.  R.  Co.  v.   Rhea.  Co.  v.  I'ittshurgh  c'^ic.   R.  Cm..  17  W. 

44  .\rk.  258:    Indiana  &c.   R.   Co.  v.  \'a.  812.     See  1    IMIiMit    I'.v.  'i;  138. 


971 


PROCEDURE  IN  APPROPRIATION  CASES 


§  1329 


which  it  is  presented.  Ordinarily,  we  think,  the  burden  is  upon 
the  petitioner  to  show  at  least  such  controverted  jurisdictional 
iacts  as  entitle  it  to  condemn."  lUit  as  to  some  questions  the 
burden  has  been  held  to  be  upon  the  land-owner,^''  and  in  many 
instances  it  has  been  held  to  be  upon  him  to  show  the  amount 
of  his  damages.^"  Where  the  corporate  existence  of  the  railroad 
company  seeking  to  condemn  land  is  properly  challenged,  it  is 


1-1  Postal  Tel.  &c.  Co.  V.  North- 
ern Pac.  R.  Co.,  211  Fed.  824: 
Pittsburgh  &c.  R.  Co.  v.  Gage,  280 
111.  639,  117  N.  E.  716;  Chicago  v. 
Lehman,  262  111.  468.  104  N.  E.  829: 
Ten-e  Haute  &c.  R.  Co.  v.  Flora,  29 
Ind.  App.  442,  64  N.  E.  648:  Chi- 
cago &c.  R.  Co.  V.  Porter.  43  Minn. 
527,  46  N.  W.  75;  Minneapolis  &c. 
R.  Co.  V.  Hartland,  85  Minn.  76,  88 
N.  W.  423:  Ellis  v.  Pacific  R.  Co.. 
51  AIo.  200;  Kountze  v.  Morris 
Aqueduct,  58  N.  J.  L.  303,  ii  Atl. 
252;  Carolina  &c.  R.  Co.  v.  Penne- 
arden  Lumber  &c.  Co.,  132  N.  Car. 
644.  44  S.  E.  358;  Cleveland  &c.  R. 
Co.  V.  Ohio  Postal  Tel.  &c.  Co.,  68 
Ohio  St.  306,  67  N.  E.  890,  62  L. 
R.  \.  941:  Robinson  v.  Pennsyl- 
vania R.  Co.,  161  Pa.  St.  561,  29 
Atl.  268;  Wisconsin  Cent.  R.  Co.  v. 
Kneale.  79  Wis.  89,  48  N.  W.  248. 
As  to  what  is  sufficient  proof  of  in- 
corporation, see  Peoria  &c.  R.  Co. 
V.  Peoria  &c.  R.  Co..  105  111.  110; 
^Milwaukee  Southern  R.  Co.,  In  re, 
124  Wis.  490,  102  N.  W.  401.  As 
to  ])roof  of  inability  to  agree,  see 
Lake  Shore  &c.  R.  Co.  v.  Balti- 
more &c.  R.  Co.,  149  HI.  272,  2>1 
N.  E.  91;  Grand  Rapids  &c.  R.  Co. 
V.  Weiden,  70  Mich.  390,  38  N.  W. 
294.  In  Madera  R.  Co.  v.  Ray- 
mond Granite  Co.,  3  Cal.  App.  668. 
87  Pac.  n.  it  is  held  that  the  bur- 
den   is   oil   the   company   to   show   a 


l)ul)lic  use,  but  that  the  good  faitli 
of  the  corporators  in  forming  the 
corporation  can  not  be  questioned. 
In  Southern  111.  &c.  Co.  v.  Stone, 
194  Mo.  175,  92  S.  W.  475,  it  is 
h.eld  th;it  inability  to  agree  may  be 
shown  by  facts  and   circumstances. 

^^  Douglas  V.  Indianapolis  &c. 
Traction  Co.,  il  Ind.  App.  Zi2,  76 
N.  E.  892;  Minneapolis  &c.  R.  Co. 
V.  Hartland,  85  Minn.  76,  88  N.  W. 
423;  Chicago  &c.  R.  Co.  v.  Cook. 
43  Kans.  83.  11  Pac.  988:  Hyde 
Park  v.  Duniiam,  85  111.  569  (on 
cross-petition). 

1"  Colorado  Cent.  R.  Co.  v.  Al- 
len, 13  Colo.  229,  22  Pac.  605; 
Evansville  &c.  R.  Co.  v.  Miller.  30 
Ind.  209;  Douglas  v.  Indianapolis 
&c.  Traction  Co.,  Zl  Ind.  .^pp.  ?^7^1. 
76  N.  E.  892.  See  also  Los  .\n- 
geles  Co.  V.  Reyes,  97  Cal.  17.  ?^1 
Pac.  233;  Oregon  &c.  R.  Co.  v. 
Barlow,  3  Ore.  311;  Omaha  «Jtc.  U. 
Co.  V.  Walker,  17  Nebr.  432.  1-^ 
N.  W^  348;  New  ^lilford  Water  Co. 
V.  Watson.  75  Conn.  12)1.  "^1  All. 
947,  53  Atl.  57.  But  compar.' 
Seattle  &c.  R.  Co.  v.  Murphine,  4 
Wash.  448,  30  Pac.  720;  Elliott 
Roads  and  Streets  (3d  ed.),  §  398. 
In  several  of  these  cases,  however, 
the  property  owner  had  appealed 
or  affirmatively  raised  the  question 
and  it  was  the  only  question  to  be 
tried. 


§  1329  RAILROADS  972 

incumbent  nn  it  to  show  that  it  is  either  a  dejure  or  de  fa.cto 
corporation.^'  The  rules  of  evidence  are  the  same  in  n:ost  re- 
spects, as  in  ordinary  civil  cases,  except  in  so  far  as  the  nature 
of  the  proceedings  may,  in  some  respects,  require  a  departure 
from  strict  rules. ^*  But  as  the  jury  or  commissioners  usually 
view  the  premises,  and  this,  whether  strictly  evidence  or  not. 
has  an  important  bearing"  upon  the  case,  and  as  the  tribunal,  in 
the  first  instance  at  least,  is  often  not  expert  in  the  law,  and  for 
other  reasons  peculiar  to  the  nature  of  the  proceedings,  a  con- 
siderable latitude  is  often  allowed  and  the  ordinary  rules  of 
evidence  are  not  always  strictly  aj^pHed.^"  In  two  recent  cases 
an  interesting  question  arose  as  to  evidence  of  noise,  and  its 
eflfect,  caused  by  the  construction  and  operation  of  a  railroad. 
In  one  of  them,  which  was  a  proceeding  to  recover  damages  to 
abutting  property  from  the  construction  and  operation  of  an 
elevated  railway  in  the  street,  the  testimony  of  the  keeper  of  a 
restaurant  on  the  premises  that  on  several  occasions  people  who 
came  there  went  out,  saying:  "We  can't  talk  here.  Let  us  get 
out  of  here,  and  eat  somewhere  where  we  can  talk  and  hear 
ourselves" — was  held  admissible  as  showing  the  effect  of  the 
noise  of  the  railway. ""  In  the  other,  which  was  a  ])roceeding 
to  condemn  land  for  a  railroad  right  of  way,  it  was  held  that 


^'Morrison    v.    Indianapolis    &o.  App.  Div.  544,  76  X.  V.  S.  11:  post, 

R.  Co.,  166  Ind.  511,  16  N.  E.  961.  §  1335.     It  has  been  iield  proper  to 

1^  See  Ball  v.  Keokuk  &c.  R.  Co.,  instruct    that    the    purpose    of    the 

71    Iowa   306,   32    N.   W.   354.     Sec  view  was  to  better  enable  the  jnr\- 

also  Central  Pac.  R.  Co.  v.  Pearson,  to    imderstand    the    testimon}^    and 

35  Cal.  247;  Denver  Power  &c.  Co.  to    more    intelligently    applj'    it    to 

V.  Denver  &c.  R.  Co.,  30  Colo.  204,  the    issues,    and    that    thej^    should 

69  Pac.  568,  60. L.  R.  A.  383;  Wash-  consider  the   evidence   in   the   lisht 

ington    &c.    R.    Co.   v.    Switzer,    26  of    tlicir    view,    but    determine    the 

(irat.  (Va.)   661;   Elliott  Roads  and  facts     from     tlic     evidence     alone. 

Streets  (3d  ed.),  §  394;  post,  §  1335.  Guinn  v.  Iowa  &c.  R.  Co.,  131  Iowa 

"  See  St.  Paul  &c.  R.  Co.  V.  Co-  680,  109  N.  W.  209.  See  post 
veil,  2  Dak.  483.  11  X.  W.  106;  §  1336,  notes  343,  344  for  author- 
Port  Huron  &c.  R.  Co.  v.  Voorhcis,  ities  on  both  sides  of  this  question- 
50  Mich.  506,  15  N.  W.  882;  Gage  also  Baltimore  v.  Megary,  122  Md. 
V.  Judson,  111    Fed.  350;   Columbia  20.  89  Atl.  331. 

&c.  Co.  V.  Geisse,  Zd  N.  J.   L.  537:  -"  Pierson   v.   T.oston   &c.   R    Co., 

White   PL'iins  &c.  Comrs.,  In  re,  71  191   Mass.  223.  11  N.  E.  769. 


973 


PROCKDIKi;    IX    Al'I'HOI'K'IATKtX    CASES 


§  1330 


the  trial  court  did  not  err  in  admitting  the  repro(hiction  of  sounds 
claimed  to  have  l)ecn  made  by  the  operation  of  trains  in  prox- 
imity to  the  defendant's  hotel,  by  means  of  a  phonograph,  a 
sufficient  foundation  having  been  first  laid  for  the  same.-^  In 
another  case  it  was  held  that  an  instrmnent  binding  a  land- 
owner to  convey  a  right  of  way  to  a  railroad  company  on  pay- 
ment of  a  certain  sum,  specified  as  liquidated  damages,  was 
conclusive  on  the  question  of  the  amount  of  damages,  though 
the  instrument  did  not  bind  the  company  to  do  anything,  but 
it  was  shown  that  it  was  obtained  by  the  railroad  company  for 
the  purpose  of  constructing  its  road  and  the  company  was  after- 
ward i)ermittcd  to  enter  on  and  appropriate  the  land  on  the 
faith  of  the  agreement.--  Maps  shown  to  be  correct  represen- 
tations of  the  locus  in  quo  have  been  held  admissible  as  valuable 
aids  to  the  jur}-  in  the  consideration  of  the  case.-^ 

§  1330    (1036).     Evidence   of   value — Illustrative   instances. — 

It  is  held  that  evidence  of  the  selling  value  of  lands  in  the  neigh- 
borhood may  be  given  as  tending  to  establish  a  ]:>asis  from  which 


21  Boyne  City  &c.  R.  Co.  v.  An- 
derson, 146  :\Iich.  328,  109  N.  W. 
429. 

"  Cliicago  &c.  R.  Co.  v.  Doug- 
lass, Z2,  Tex.  Civ.  App.  262,  76  S. 
W.  449. 

-3  Cox  V.  Philadelphia  &c.  R.  Co., 
215  Pa.  St.  506,  64  Atl.  729.  And 
photographs,  not  too  remote,  have 
been  held  admissible.  Hubbell  v. 
Des  Moines,  166  Iowa  581,  147  N. 
W.  908,  Ann.  Cas.  1916E,  592.  See 
also  Atlanta  &c.  R.  Co.  v.  Atlanta 
&c.  R.  Co.,  125  Ga.  529,  54  S.  E. 
736.  The  last  case  jnst  cited  was 
a  suit  lor  injunction  against  a  rail- 
road company  to  prevent  the  \a.y- 
ing  of  its  tracks  and  operation  of 
its  trains  along  a  street  of  a  city 
by  one  alleging  himself  to  be  the 
(iwncr  (if  the  foe  in  the  street  sub 
jcct  to  the  easement,  and  also  the 
owner    of    the    abutting    property-. 


and  alleging  that  the  proposed  use 
of  the  street  against  his  will,  and 
without  the  condemnation  proceed- 
ings authorized  by  law,  was  an  un- 
lawful taking  and  damaging  of  his 
property;  and  it  not  appearing 
from  the  evidence  offered  bj^  the 
plaintiff  that  he  suffered  any  spe- 
cial damage  other  than  the  mere 
fact  of  taking  his  property,  it  was 
held  not  erroneous  for  the  court, 
on  the  hearing  of  the  case  for  in- 
terlocutory injunction,  to  exclude 
as  irrelevant  and  immaterial  an  af- 
tidavit  offered  by  the  defendant  to 
the  cft'cct  that  the  construction  of 
the  road  along  the  street  would  in- 
crease tlie  values  of  the  abutting 
proiHM'ty.  It  was  also  held  not  er- 
roneous to  admit  an  affidavit  of 
the  surveyor  attached  to  a  plat  of 
the  land. 


^  1330  RAILROADS  974 

the  land-owner's  damag^es  ean  be  assessed  in  cases  where  the 
land  taken  is  not  shown  to  have  any  deiinite  market  \ahie.-'  but 
as  a  <^eneral  rule  where  there  is  a  definite  market  value  that 
value  should  be  taken  as  the  basis  for  estimating-  compensation.-"' 
Evidence  of  actual  sales  of  such  lands  has  been  held  admissible 
in  cases  where  the  market  value  of  the  land  sought  to  be  con- 
demned was  in  dispute,-"  though  other  authorities  hold  such 
evidence  inadmissible'-'   upon   the  ground   that   it   is   the  general 

2*Saii  Diego  &r.  R.  Co.  V.  Neale,  193,  25  Fac.  87;  Kicrnan  v.  Chi- 
78  Cal.  63,  20  Pac.  372.  3  L.  R.  A.  cago  &c.  R.  Co.,  123  111.  188,  14 
83;  Chicago  &c.  R.  Co.  v.  Chicago  N.  E.  18;  Kansas  City  &c.  R.  Co.  v. 
&c.  Co.,  112  111.  589;  Concordia  Fisher,  49  Kans.  17,  30  Pac.  Ill; 
Cemetery  .\ssn.  v.  Minnesota  &c.  Missouri  &c.  R.  Co.  v.  Porter,  112 
R.  Co.,  121  III.  199.  See  generally  :Mo.  361,  20  S.  W.  568;  Currie  v. 
Greeley  &c.  R.  Co.  v.  Yonnt,  7  Waverly  &c.  R.  Co.,  52  N.  J.  L.  381. 
Colo.  App.  189,  42  Pac.  1023;  Di.xon  20  Atl.  56,  19  Am.  St.  452  and  note, 
V.  Baltimore  &c.  R.  Co.,  1  Mackey  44  Am.  &  Eng.  R.  Cas.  100;  Pitts- 
CD.  C.)  78;  Pingery  v.  Cherokee  burgh  cScc.  R.  Co.  v.  Patterson,  107 
&c.  R.  Co..  78  Iowa  438,  43  N.  W.  Pa.  St.  461.  Evidence  of  diminu- 
285;  Teele  v.  Boston,  165  Mass.  88.  tion  in  mere  mortgage  value  is,  it 
42  N.  E.  506;  Eriday  v.  Pennsyl-  seems,  inadmissible,  and  at  all 
vania  R.  Co.,  204  Pa.  St.  405,  54  events,  evidence  that  persons  ap- 
.•\tl.  339;  Condemnation  for  New  plied  to  were  unwilling  to  loan  on 
State  House,  In  re,  19  R.  I.  382,  3^  mortgage  on  the  jiroperty  an 
Atl.  523;  Calvert  &c.  R.  Co.  v.  amount  which  had  been  loaned  on 
Smith  (Tc.x.  Civ.  .Xpp.).  68  S.  W.  it  is  not  competent  as  evidence  of 
68.  See  also  note  in  .\nn.  Cas.  diminution  in  market  value.  Pier- 
1916E,  598.  Where  property  de-  son  v.  Boston  &c.  R.  Co.,  191  Mass. 
voted  to  a  certain  use — as  a  ifuarry  223,  77  N.  E.  769. 
— is  sought  to  be  taken  in  con-  -'King  v.  Iowa  Midland  R.  Co., 
demnatiou  proceedings  it  may  be  34  Iowa  458  (but  see  Iowa  case 
shown  that  the  county  in  which  the  cited  in  note  34);  Edmands  v.  Bos- 
land  was  situated  was  not  a  mar-  ton,  108  Mass.  535;  Boston  &c.  R. 
ket  in  which  a  i)m-chaser  of  the  Co.  v.  Old  Colony  &c.  R.  Co.,  3 
]iro])ert3'  could  be  expected  to  be  .-Xllen  (Mass.)  142;  Concord  R.  Co. 
found.  Seattle  &c.  R.  Co.  v.  Roed  v.  Greely,  23  N.  11.  237;  March  v. 
er.  30  Wash.  244,  70  Pac.  498,  94  Portsmouth  &c.  R.  Co.,  19  N.  M. 
Am.  St.  864.  372;  Eewisburg  &c.  R.  Co.  v.  Hinds. 

'■•Utt\e     Rock     &c.     R.     Co.     v.  134  Tenn.  293.  183  S.  W.  985;  Seat- 

WoodruflF,   49   Ark.   381,   4   Am.    St.  tie  &c.  R.  Co.  v.  Gilchrist.  4  Wasli. 

51,  5  S.  W.  792;  Santa  Ana  v.   ilar-  509,   30    Pac.   738. 

lin,  99  Cal.  538,  34   Pac.  224;   Colo-  27  Central   Pacific  R.  Co.  v.  Pear- 

rado  &c.  R.  Co.  v.   P.rown,  15  Colo.  son,  35  Cal.  247;  Union   R.  &c.  Co. 


()75  I'KOCKDIKK    IN    A  l'l'K(  )I*K1  A'l'KJN    CASES  §1330 

sc'llini;  I'licc-  of  l.'nid  in  llu-  iK'i.^hborhood  wliicli  is  the  test  of  its 
value,  ami  not  the  i)rice  paid  for  particular  i)ieces  of  property.-'^ 
'Jlie  sales  ])rt)\  en  must  have  been  u{  land  similar  in  character  and 
location  to  that  condemned,  and  must  have  been  made  near  the 
time  of  the  taking.-"  But  some  of  the  cases  hold  that  whether 
(;ffered  evidence  is  sufficient  in  these  regards  is  largely  in  the 
discretion  of  the  officer  or  judge  presiding.-'"  Such  sales,  to  be 
admissil)le   in   evidence,   must  have  been   voluntary.     The  price 

V.    Mooro,   80    liul.   458:    Stiiisoii    v.  I'eoria   &c.    R.   Co.,   146    ill.   ,^72.  .i4 
Chicago  &c.  R.  Co..  27  Minn.  284,  ()  X.    K.    550.    .51     I..    R.    .\.    373:    St. 
N.  W.  784:  Witmark  v.   New   York  l.ouis    l-'.lec.   Tirm.    R.    0>.    v.    ^Tac- 
&c.  R.  Co.,  149  N.  Y.  393,  44  N.  E.  .\dam..,  257  Mo.  448.  166  S.  W.  307: 
78;    l'itt,sl)urt;li   &c,   R.   Co.  v.   Ro.-;e.  Laing  v.    United    X.   J.    &c.    Co..   54 
74    Pa.    St.    362:    Penns.vlvania    &c.  X.  J.  L.  576.  25  .\tl.  409.  33  Am.  St. 
R.    Co.    V.    r.unnell,   81    Pa.    St.    414;  682.     Tlie  value   of  tlie  land   before 
Cm-tin    V.    Xittany    X'alley     i\      ''•'..  the    h)eation    of    the    road    may    Ik- 
US   I'a.  St.  20.   19   Atl.  740;    llewitt  sliovvn      preparatory      to      showing 
V.    Pittsbnrgli    &c.    R.    Co..    19     P;..  what    it    was    worth    after    the    road 
Super.    Ct.   304.     The    consider.ation  was    construeted.     Durliam     c*te.     R. 
named     in     deeds     for     conti.guous  Co.  v.   Bullock  Church.   104  X.  Car. 
lands  is  not  admissible  in  ])roof  of  525.  10  S.  E.  761. 
the  value  of  the  land   sought  to  1)e  '•"  Shattuck    v.    Stoneham    P)ranch 
condemned.  Seefeld  v.  Cliicago  &c.  R.  Co.,  6  Allen   (Mass.)    115:  Teele 
R.  C<..,  67  Wis.  96,  29   X.  W.  904;  v.   Boston,   165    -Mass.  88,  42  N.   E. 
Esch  v.  Chicago  &c.  R.  Co..  72  Wis.  506:    Presbrey    v.    Old    Colony    &c. 
229,  39   X.  W.  129.  R.  Co.,  103  .Mass.   1:    I'.urley  v.  Old 
'-•'*  A     particular     sale     may    be     a  Colony    R.    Co..   219    Mass.   483.   107 
sacrifice  compelled  by  necessity,  or  X.    K.  365;   Stinson  v.   Chicago   &c. 
it  niay  be  the  result  of  mere  caprice  R.  Co..  27  Minn.  284.  6  N.  W.  784; 
or  folly.      Pittsburgh   &c.   R.   Co.  v.  .Montclair   R.   Co.   v.    B.enson.  36  X. 
Patterson.    107    Pa.    St.    4()\:    i'ilts-  1.    I..   557.     See   also   St.    Louis    &c. 
burgh  &c.  R.  C<i.  v.  \'ance.  115   i'a.  R.  Co.  v.  Guswelle.  236  111.  214,  86 
St.  325,   8   .\tl.   764;    Curtin    v.    Xit-  X.   E.  230   (held   properly  exercised 
tany  \'alley    R.   Co..   135    Pa.   St.  20.  in    excluding    evidence    as    too    re- 
19    Atl.    740.      See    also    In    re    East  mote);   Chicago   R.    R.  Co.  v.   lleid- 
161st  St..  159  .\pp.   Div.  662.   144   X.  cnreich.  254   ill.  231,  98   X.    E.  567. 
Y.  S.  717.  Ann.     Cas.     1913C.     266.      For     in- 
-•' San  Jose   &c.   1\.  Co.  v.   .\layne.  stances  of  the  abuse  of  this  discre- 
83  Cal.  566.  23  Pac.  522;   l'"leuriston  tion    leading    to    a    reversal    of    the 
V.  Central  Ga.  &c.  Co..  140  Ga.  511.  case.  Chandler  v.  Jamaica  Poud  &c. 
79  S.  E.  148:   St.  Louis  &c.  R.  Co.  Co.,   122   Mass.  305:    Paine   v.   Bos- 
V.   Guswelle,  236  III.  214,  86  N.  E.  ton,  4  Allen   (Mass.)   168;   LaMont 
230;     Peoria     Gaslight     &c.    Co.    v.  v.    St.    Louis    &c.    R.    Co.,   62    Iowa 


i^  1330  RAILROADS  976 

paid  upon  condemnation  of  similar  property ,^^  or  by  agreement 
with  the  owner  as  a  gross  sum  both  for  the  land  purchased  and 
for  damages  resulting  to  the  residue  from  the  construction  of 
the  railroads,^-  is  to  be  excluded  as  evidence.^^  We  incline  to 
doubt  the  soundness  of  the  cases  which  hold  evidence  of  par- 
ticular sales  to  be  competent  as  substantive  independent  proof 
of  value,  although  we  think  it  may  be  proper  to  test  the  knowl- 
edge of  witnesses  by  asking  them,  on  cross-examination,  whether 
they  know  of  such  sales.  It  s-eems  to  us  that  to  permit  evidence 
in  chief  of  particular  sales  is  to  let  in  collateral  questions  and 
lead  to  confusion  and  error.  We  believe  the  true  rule  is  to  con- 
fine the  question  to  the  market  value. ^*  The  land-owner  is  at 
liberty,  as  a  general  rule,  to  prove  every  fact  which  he  would 
naturally   be   expected   to   adduce  as   enhancing   the   price   at   a 

193,    17    N.   W.   465.     Where   there  104  N.  E.  235;  Doud  v.  Mason  City 

is   no   similarity  between   the    land  &c.  R.  Co.,  76  Iowa  438.  41   N.  W. 

taken  and  other  lots  in  the  vicinity,  65;  Watkins  v.  Wabash  R.  Co.,  137 

it  is  error  to  admit  evidence  of  the  Iowa  441,   113   N.  W.  924;   Hubbell 

value    of    such    lots.     Cummins    v.  v.   Des   Moines,   166   Iowa   581,    147 

Des    Moines    &c.    R.    Co.,   63    Iowa  N.    W.    908,    .Vnn.    Cas.    1916E,    592 

397,    19    N.    W.   268,    note    in    Ann.  (where   many   cases   on   both    sides 

Cas.  1916P3.  601.  are  cited  in  note  and  the  annotator 

31  Bemis  v.  Springfield,  122  Mass.  says  that  the  weight  of  authority 
110;  White  v.  Fitchburgh  &c.  R.  is  the  other  way);  Kansas  City  &c. 
Co.,  4  Cush.  (Mass.)  440;  Wyman  R.  Co.  v.  Weidenmann,  11  Kans. 
v.  Lexington  &c.  R.  Co..  13  Mete.  300,  94  Pac.  146;  Kansas  City  &c. 
(Mass.)  316.  See  also  Chicago  v.  R.  Co.  v.  Splitlog,  45  Kans.  68,  25 
Lehmann.  262  III.  468,  104  N.  E.  Pac.  202;  Kansas  City  &c.  R.  Co.- v. 
829.  Kennedy,  49  Kans.  19,  30  Pac.  126; 

32  Presbrcy  v.  Old  Colony  &c.  Stinson  v.  Chicago  &c.  R.  Co.,  27 
Co..  103  Mass.  1;  Cobb  v.  Boston,  :\Iinn.  284,  6  N.  W.  784;  Gicsy  v. 
112  Mass.  181.  Cincinnati   R.   Co.,  4  Ohio   St.  308: 

3'*  See    also    Peoria    Gaslight    &c;  Neelcy    v.    Western    Allegheny    R. 

Co.    V.    Peoria    &c.    R.    Co.    146    111.  Co.,   219    Pa.    St.   349.   68   Atl.   829: 

Zll.  34  N.   E.  550,  31    L.  R.  A.  Zl^.  Robinson  v.  New  York  El.   R.  Co., 

3»  Mississippi  &c.  Boom  Co.  v.  175  N.  Y.  219,  67  N.  Iv  431;  Escli 
Patterson.  98  U.  S.  403.  25  L.  ed.  v.  Chicago  &c.  R.  Co.,  11  Wis.  229, 
206;  Payne  v.  Kansas  &c.  R.  Co..  39  N.  W.  129,  36  Am.  &  Eng.  R. 
46  Fed.  546;  Harrison  v.  Young,  9  Cas.  620;  (but  see  .\merican  States 
Ga.  359;  Chicago  &c.  R.  Co.  v.  Sec.  Co.  v.  .Milwaukee  &c.  R.  Co.. 
Bowman.  122  111.  595.  13  N.  E.  814;  139  Wis.  199,  120  N.  W\  844);  El- 
Trustees   V.   Horshman.  262    111.   72.  liott   Ev.   §   180. 


977  PROCEDURE  IN  APPROPRIATION  CASES  §  1330 

private  sale.^''  On  the  other  hand,  the  defendant  company  may 
offer  such  evidence  as  will  put  the  jury  in  possession  of  all  those 
facts  about  which  a  prudent  purchaser  would  inquire,'"  and  will 
usually  be  permitted  to  prove  them  on  cross-examination  of  the 
plaintiff,  where  he  testifies  in  his  own  behalf  as  to  the  value  of 
his  land.^^  It  is  held  that  the  company  may  prove  the  price  paid 
by  the  owner  for  his  land-"*^  as  tending  to  show  its  value.     JUit  the 

•'•'  Little     Rock     &c.     R.     Co.     v.  III.   499.     For   illustrative   cases   of 

Woodruff,  49  Ark.  381,  5  S.  W.  792.  what  may  be   considered,   see  also 

4  Am.  St.  51;   Ohio   Co.  v.   Kerth.  Sanitary  Dist.  v.   Pittsburg  &c.   R. 

130  Ind.  314,  30  N.  E.  298;  Chicago  Co.,    216    111.    575,    75    N.    E.    248; 

&c.   R.   Co.  V.    Davidson,  49   Kans.  Levenson    v.    Boston    El.    R.    Co., 

589,  31    Pac.    131;    Montana   &c.    R.  191  Mass.  75,  77  N.  E.  635;  Conan 

Co.    v.    Warren,    6    ^lont.    275,    12  v.    Ely,    91    Minn.    127,    97    N.    W. 

Pac.  641;   Cincinnati   &c.   R.   Co.  v.  737;  Cot  v.  Philadelphia  &c.  R.  Co., 

Longworth,  30  Ohio  St.   108;  Con-  215    Pa.    St.    506,    64    Atl.    729,    114 

(lenination    for    Xew    State    House,  Am.  St.  979. 

In    re,    19    R.    1.   382,    33    Atl.     523.  so  Little     Rock     &c.     R.     Co.     v. 

Building    operations    in    process    ot  Woodruff,    49    Ark.    381,    5    S.    W. 

completion    on    land    at    some    dis-  792,  4  Am.  St.  51;  Cameron  v.  Chi- 

tance  from   the   land  taken   can   not  cago   &c.   R.   Co..   51   Minn.    153.   53 

be   shown    in   evidence,   to   increase  N.  W.  199.     See  generally  Chicago 

the  speculative  price  of  the  land  .is  &c.  R.  Co.  v.  Catholic  &c.,  119  111. 

the    possible    site    for    huihlings.    in  525,  10  N.  E.  372;  Stebbing  v.  Met- 

case     the     former     venture     should  ropolitan    &c.,    1..    R.    6    Q.    B.    37; 

prove  a  success.     Schuylkill    River  Somerville   &c.   R.  Co.  v.  Doughty, 

&c.   R.   Co.  v.   Slocker,   128   Pa.   St.  22   N.  J.   L.   495:   Pittsburg  &c.    R. 

233,    18    .\tl.    399.     See    Hooker    v.  Co.    v.    Vance.    115    Pa.    St.    325.    8 

Montpelier    &c.    R.    Co.,   62   Vt.   47,  .\tl.  764;  Dupuis  v.  Chicago  &c.  K. 

19  Atl.  775;  Washburn  v.   Milwau-  Co.,  115  111.  97,  3  N.  E.  720,  23  Am. 

kee  &c.  R.  Co.,  59  Wis.  364,  18  N.  &   Eng.    R.   Cas.  93. 

W.  328:  Smith  Park  cS:c.  v.  Dunlevy,  37  Edmands  v.  Boston,  108  Mass. 

91    111.   4');    Tracy    v.    Mt.    Pleasant.  535;  St.  Louis  &c.  R.  Co.  v.  Smith. 

1(>5   Iowa  435,  146  X.  \V.  78:   Slier-  4?  Ark.  265.     But  see  San  .\ntonio 

man    v.    St.    Paul    c'^c.    R.    Co..    30  .'tc.    R.    Co.   v.    Ruby.   80   Tex.    172. 

.Minn.   227,    15   N.   W.   239;   King   v.  15     S.    W.     1040.       For    a     case    in 

.Minneapolis   &c.    R.    Co.,   32    Minn.  which   the  cross-examination  let  in 

224,   20   N.  W.    135.      IWit   the   pecu-  explanatory    evidence     in     rebuttal. 

liar  value   attached   to   the   land   by  see    Port   Townsend    i^c.   R.   Co.   v. 

the    owner    is    not    to    be    taken    as  Barbare.     46     Wash.    275.    89     Pac. 

liasis   of  estimate.     Mississippi   &c.  710. 

Co.   V.   Ring.   58   Mo.   491.      See   De  ^''Mlam   v.   Salem.   100  Mass.  350: 

Buol    V.    JM-eeport    &c.    R.    Co..    Ill  Swan     v.     Middlesex     County,     101 


§  1330  K\ii.K'().\ns  !)78 

owner  ma\'  show  by  wa>'  ol  explanation,  the  circumstances  under 
wliich  he  boui^ht,  the  condition  of  the  property  at  the  time,  the 
improxement  he  has  made  upon  it.  and  any  general  advance  in 
]-rices  by  which  the  pro])erty  has  been  benefited. ■^•'  An  ofifer  on 
his  part  to  sell  the  land  at  a  fixed  price,  and  the  actual  sale  of  a 
l)art  of  it  may  be  pro\en  as  admissions  of  the  owner  as  to  its 
\alue.*"  The  C(ini])any  may  i;i\e.  as  original  ex  idencc.  the  ad- 
missions of  the  owner  as  to  the  value  of  his  land,  made  at  or 
n.ear  the  time  it  was  taken."      So  a   lease   executed  b}-   the   o])- 

.Mass.  173:  Sextan  v.  North   I'.ridge-  56  Ga.  471;   Central    I'.rancli    1\.  Co. 

water.  116  Mass.  200;  St.   bonis  &o.  v.   .\ndre\vs.  i7    Kans.    162.   641.    16 

R.   Co.  V.   Smith.  42  Ark.   265.    but  Pac.     338;     beroy     &e.     R.     Co.    v. 

not    wliat    he   paid    for    it    seventeen  Ihitts,    40    Kans.    159.    19    Pac.    625; 

years    (Davis    v.    Pennsylvania    R.  Wel^licr  v.  Eastern  R.  Co..  2  Mete. 

Co..  215    f\a.   St.   581,   64   Atl.   774).  (Mass.)     147;     Concord    R.    Co.    v. 

or  even  ten   years   before    (Sullivan  dreely.  IZ  \.  H.  2?)7 :   I"last   I'randy- 

V.  ^Hssouri  &e.  R.  Co.,  29  Tex.  Civ.  wine   &c.    R.    Co.   v.    Ranek.   78   Pa. 

App.   429.    68   S.    W.    745).  St.   454;    Watson   v.    .Milwaukee   &c. 

•^"St.  Louis   &:r.   R.   Co.  v.   Smith.  R.   Co.  57  Wis.  ?>?,2.   15   X.   W.  468. 

42    .Ark.    265;     I  lam     \'.    Salem.    1(10  The    sworn    valuation    placed    upon 

Mass.  350.  his    i)roperty    by    a    land-owner    in 

""'East    I'randywine    iKic.     \<.    Cm.  makin.u-    a    return    of    the    property 

V.  Ranck,  78   Pa.  St.  454.     See  .also  to    the    assessor    for    taxation,    was 

Sprin.u:er    v.    Chicajin.    135    111.    552.  held      not     admissible     as     original 

26   X.    I',.   514.   12    b.    R.    A.  609  and  evidence   against   him    in    fixing  the 

note;    llalsteacl  w   V'andalia   R.   Co..  ^•alne    upon    condemnation,    thoti.gh 

48    huh   Ai)p.  66.  95   X.    !■'.  439   (in-  it   was   held   admissible  to  discredit 

struction     tn     consider     price     i)aid  the      owner's     exidence.        \'irtiini;i 

where    it    had    been    shown    in    e\i-  (.^c.    R.    Co.    v.    Fdenrj-,    8    X'^ev.    165. 

deuce);   T'ower   \.  Savannah   (J^-c.    R.  And    the    same    holding    was    made 

Cc).,  56  Ga.  471.     The  r.ailro.-nl  com-  as  to  an   assessment  list   signed   by 

])any    maj'    i)rove    that     the    owner  the    land-owner,    but    in    which    the 

sold    the    laud    in    question    before  values   were   fixed  In'  the   assessor. 

the    action    but    after    the    railroad  San  Jose   &c.   R.   Co.   v.    Mayne.  83 

was  h)cated  across  it.  and  the  price  Cal.    566,   2?i    Pac.    522.      So.    in    .\r- 

for    wliich    it    was    sold.      Such    evi-  kansas.    upon    the    ground    that    the 

deuce    is    a<lmissil)le    as    an    admis-  \-aluatiiin     in     the     assessment     for 

sion    of    the    owner    that    the    prop-  ta.xation   was  "made   for  a  different 

crty     was    worth     that    price    even  purpose,    and    was    not    a    fair    cri- 

witli    the   railroad   across   it.     Wat-  terion  of  the  market  value."  Texas 

sou    V.    Milwaukee    &c.    R.    Co.,    57  &c.   R.    Co.   v.    Eddy.   42  Ark.   527; 

Wis.  332.    15   N.   W.   468.  Springfield   &c.  R.  Co.  v.  Rhea.  44 

*■*  Power  v.  Savannah  &c.  R.  Co.,  Ark.    258.      See    Brown    v.     Provi- 


979  I'KOCKDIRE   IN   APPROPRIATION    CASES  §  V-VAO 

erators  of  a  quarry  to  the  owners  fixing-  a  royalty  has  been  held 
admissible  as  tending  to  fix  the  value  of  the  land  and  the  lease- 
hold.'- ^^'herc  the  owner  dies  pending  suit,  his  admissions  may 
be  proven  against  his  personal  representatives.*^  But  a  witness 
can  not  state  his  mere  impressions  as  to  what  the  owner  has 
said  concerning  the  value  of  his  property.'*  The  owner  has  been 
allowed  to  prove  the  price  offered  for  the  property  a  short  time 
before  its  condemnation  as  tending  to  show  that  it  has  a  special 
value  above  the  general  market  value  of  surrounding  property,*'' 
but  most  authorities  hold  that  evidence  of  unaccepted  ofifers  made 
by  third  persons*"  or  by  the  condemning  corporation*"  are  inad- 

dence   &c.    R.    Co..  5   Gray   (Mass.)  Ga.   178:  Drury  v.   Midland  R.   Co.. 

35.      Hut    ill     I^.irminj^ham    Mineral  127    Mass.    571;    St.   Joseph    &c.    R. 

R.  Co.  V.  Smith.  89  .Ala.  305,  7  So.  Co.    v.    Orr.   8    Kans.   419:    Watson 

634,   the   court    held   that   the   own-  v.   Milwaukee   &c.    R.    Co.,   57  Wis. 

er's    sworn    valuation    was    an    ad-  332.   15   N.  W.  468:    Eastern   Texas 

mission  on  his  part  as  to  the  value  R.    Co.    v.    Eddings.    30    Tex.    Civ. 

of    his    property,    remarking:      "If  .App.   170.  70  S..W.  98   (offer  made 

hfs    unsworn    declarations    and    ad-  five  years  before) :  Stanley  v.  Sum- 

r-)issions     arc     admissible     against  rell    (Tex.    Civ.    App.),    163    S.    W. 

1  im.    certainly   hi-   estimate   of   the  697.      The    owner's    refusal    to   part 

value,    made    under    the    solemnity  with    the    premises    for    an    offered 

of    an    oath    is    equally    admissible  sum     may     have     proceeded     from 

as  a  declaration  or  admission.  Such  a  special   fondness  for  the  land   or 

valuation    is    not    conclusive    upon  from   an    opinion    on   his   part   that 

him.   but    dependent   for    its   weight  it  would   some   day  be   a    profitable 

upon   the   circumstances."  investment,   and   can   not   be   taken 

42  Seattle    &c.    R.    Co.   v.    Roeder,  as    evidence    of    the    value    of    the 

30  Wash.  244,  70  Pac.  498,  94  Am.  land.      Pennsylvania    &c.    R.   Co.   v. 

St.  864.  Cleary.  125  Pa.  St.  442.  11  Am.  St. 

4-^  Power  V.  Savannah  &c.  R.  Co.,  913,    17   Atl.   468. 

56  Ga.  471:   Centra!   Branch  R.  Co.  *' Davis  v.  Charles  River  Branch 

V.   Andrews,  37  Kans.  641.  16  Pac.  R.  Co.,  11   Cush.   (Mass.)  506:  Un- 

S^S:,  ton    V.    South    Reading    Branch    R. 

*4  New   York   &c.   R.   Co.,   Matter  Co.,    8    Cush,     (.Mass.)     600.      The 

of.  33  Hun  (N.  Y.)  231.  award  of  commissioners  appointed 

*•'■•  Johnson     v.     Freeport    &c.     R.  to    appraise    the    land    can    not    be 

Co.,  Ill  III.  413.     See  also  Chicago  introduced  as  evidence  of  its  vahie 

V.  Lehman,  262  111.  468,  104  N.  E.  in  the  trial  of  an  appeal  from  such 

829    (may    prove    bona    fide    offers  award.      Sherman    v.    St.    Paul    &c. 

for  cash).  R.    Co..    30    .Minn.    227,    15    N.    W. 

46Selma  &c.  R.  Co.  v.  Keith.   53  239:     Ennis    v.    Wood     River    &c. 


S  1331  RAILROADS  'J80 

O 

niissible  to  fix  the  value  (jf  the  land.  Unexecuted  offers  and 
agreements  for  the  purchase  of  similar  lands  in  the  neighborhood 
are  never  competent  evidence  for  this  purpose.**  The  fact  that 
the  land  sold  for  a  particular  sum  shortly  after  the  railroad  was 
laid  across  it  has  been  held  entitled  to  great  weight  in  getting  at 
its  value  as  depreciated  l)y  the  location  of  the  road.*'' 

§  1331  (1036a).  Evidence  of  value — Further  illustrative 
instances. — Evidence  that  the  rates  of  insurance  are  increased  by 
reason  (j1  the  ])roximity  of  the  railroad  to  the  property  in  (|ues- 
tion,  has  been  held  admissible'''^  and  conxersely  where  the  land- 
owner claims  damages  by  reason  of  increased  exposure  it*  ui 
held  proper  for  the  railroad  company  to  show  that  the  rates  will 
not  be  increased  by  the  construction  of  the  road.^^  Where,  how- 
ever, the  land-owner  has  disclaimed  any  right  to  recover  damages 
for  increased  fire  risk,  evidence  showing  insurance  rates  on  his 
building  and  on  the  buildings  of  others  in  the  city  is  irrelevant. ^- 
\Miere  valuable  fruit  trees  stand  on  the  land  appropriated  for 
right  of  way  their  Aalue  may  be  shown  by  proof  of  the  value  of 
the  land  with  and  a\  ithout  the  trees  thereon. ^^  It  has  been  held 
not  improper  to  admit  the  report  of  commissioners  first  assessing 
damages  in  a  later  reassessment  proceeding,  providing  the  jury 

Railroad,  12  K.   I.   73.     It  is  iiicom-  companj'  can  not  l)c  proved  for  the 

petcnt    to    prove    tJiat.    after    pro-  purposes    of   augmenting    damages, 

ccedings  are  commenced,  the  com-  Virginia    &c.    R.    Co.    v.    Elliott,    5 

pany   offered   and   an   agent  of  the  Nev.  358;  Boston  &c.  Co.,  In  re.  22 

owner   agreed    to   accept   a    certain  Hun  (N.  Y.)   176;   Black   River  &c. 

l)rice    for    the    property.      Chicago  Co.  v.  Barnard,  9  Hun  (N.  V.)   104. 

&c.  R.  Co.  V.  Catholic  Bishop,  119  See   New  York  &c.   R.   Co.,   In   re. 

111.   525.  27   Hun    (\.   Y.)    116,   and    DelUiol 

■»^  Davis  V.  Charles  River  &c.  R.  v.  Freeport  &c.  R.  Co..  Ill  111.  499. 

Co..   11  Cush.   (Mass.)   506;  Winni-  ■■<>  Cedar  Rapids  &c.   Co.  v.   Ray- 

simmct   Co.   V.    Grueby,    111    Mass.  mond,  37  Minn.  204.  33  N.  W.  704. 

543;   T.ehmickc   v.   St.   Paul   &c.   R.  •''■'  North     Arkansas     R.     Co.     v. 

Co..  19  Mum.  464;  Concord  R.  Co.  Cole.  71  Ark.  38.  70  S.  W.  312. 

V.  Grcely,  23  N.  IT.  237;  Montclair  52  Boyne  City  &c.  R.  Co.  v.  An- 

R.  Co.  V.  Benson.  36  N.  J.  L.  557.  derson,    146   Mich.  32i^.   109   N.   W. 

•»»  Watson    V.    Milwaukee    &c.    R.  429. 

Co.,    57   Wis.    332.    15    N.    W.    468.  '^  Foote  v.  Lorain  &c.  R.  Co.,  21 

The     necessities     of     the     railroad  Ohio  Cir.  Ct.  319,  11  O.  C.  D.  685. 


981 


PUOCKDl  RE  IN  APPROPRIATION  CASES 


§  1331 


were  instructed  that  tliey  were  not  to  allow  the  amount  awarded 
by  the  commissioners  to  influence  their  judgment  as  the  amount 
of  damages.  The  admission  of  such  evidence  was  justified  on 
the  ground  that  it  was  necessary  for  the  jury  to  know  the  amount 
of  the  former  award  in  order  that  credit  might  be  given  the  land- 
owner for  the  amount  paid,  and  that  interest  might  be  awarded 
the  railroad  company  for  the  excess  in  case  the  damages  found 
by  the  jury  should  exceed  that  awarded  by  the  commissioners." 
It  is  clear  that  evidence  as  to  the  intent  of  the  company  in  con- 
structing its  road,  does  not  respond  to  the  issue  before  the  jury, 
which  is  solely  as  to  the  damage  caused  by  the  taking  of  the 
land,  and  should  be  excluded. '^^  In  a  comparatively  recent  case, 
which  was  an  action  to  enjoin  the  operation  of  an  elevated  rail- 
road on  a  certain  street  unless  the  owner  of  an  abutting  tract 
was  compensated  for  his  damages,  evidence  of  the  value  and  o' 
the  rental  value  of  the  entire  hotel  property,  which  not  only  in- 
cluded such  tract,  but  extended  back  to  another  street,  was  ad- 
mitted, and  this  was  held  erroneous,  but  it  was  also  held  that  the 
error  was  cured  by  cross-examination  disclosing  the  value  put  on 
each  part  of  the  entire  propert}'.^'"  And  in  another  and  still  more 
recent  case  it  is  held  that  while  evidence  of  the  adaptability  of 
the  property  for  other  than  its  present  use  is  admissible,  the  jury 
should  not  be  told  to  consider  such  adaptability.^^ 


■'*  Kansas  City  &c.  R.  Co.  v.  .Alc- 
Elroy,  161  Mo.  584.  61  S.  W.  871. 
But,  as  shown  in  the  preccdini>- 
section,  a  former  award  is  usually 
inadmissible;  and  the  award  of 
damages  made  by  the  commission- 
ers in  a  railroad  condemnation 
case  and  included  in  tlicir  report 
is  not  competent  evidence  of  de- 
fendant's damages  on  trial  of  the 
case  in  the  circuit  court  on  appeal. 
Halstead  v.  Vandalia  R.  Co.,  48 
Ind.  App.  96.  95  N.  E.  439. 

°^  Chicago  &c.  R.  Co.  v.  T.oer,  27 
Ind.  App.  245,  60  N.  E.  319. 

■'''  Shaw  V.  New  York  &c.  R.  Co., 
187  N.  Y.  186.  79  N.  E.  984.   It  was 


also  held  that  an  expert  might 
testify  the  same  general  course  of 
appreciation  in  values  would  have 
prevailed  in  the  locality  as  else- 
where if  it  had  not  been  for  such 
road.  It  was  the  second  trial  of 
the  action,  and,  although  a  com- 
panj'  to  which  the  road  had  been 
leased  subsequent  to  the  first  trial 
was  made  a  party,  it  was  also  held 
that  testimony  of  a  witness  who 
had  died  on  the  first  trial  might  be 
read   in   evidence. 

■''"  David  V.  Louisville  &c.  R.  Co., 
158  Ky.  721.  166  S.  W.  230:  Bray  v. 
Lardv.  1^2  1:  d.  98.  105  X.  E.  772. 


1332 


RAILROADS 


982 


§  1332  (1036b).  Tax  lists  and  assessments  as  evidence  of 
value. — Where  the  owner  makes  out  and  swears  to  his  own  tax 
list  or  schedule  and  places  the  value  upon  the  property  himself 
it  has  l)een  held  that  it  is  admissil)le  aijainst  him  as  in  tlie  nature 
i'i  an  admission.'"'^  lUit  the  weight  of  authority  is  to  the  effect 
that  such  evidence  is  not  ordinarily  admissil^le,  except,  perhaps, 
to  discredit  him.''''  And  it  seems  clear  that  it  is  not  competent 
where  the  \aluation  is  made  by  the  assessor  and  not  by  the 
owner. ''^ 

§  1333  (1037).  Competency  of  witnesses. — It  may  be  said 
trenerally  that  any  com|)etent  witness  acquainted  with  the  land 
taken  and  having  knowledge  of  the  market  price  of  such  land  is 
competent  to  testify  as  to  its  value. ''^     Such  a  witness  does  not 


^^  Hirniingham  &c.  R.  Co.  v. 
Smith.  89  Ala.  305.  7  So.  634.  See 
also  Kinp:  v.  Turnbull  &c.  Co.,  8 
Can.  Exch.  163:  Rcckwith  v.  Tal- 
bot, 2  Colo.  639;  Vernon  Shell 
Road  V.  Mayor  &c..  95  Ga.  387,  22 
S.  E.  625:  Indiana  &c.  Tract.  Co. 
V.  Renadnm,  42  Ind.  .\pp.  121,  83 
N.  E.  261:  Mifflin  P.rid.ije  Co.  v. 
County  of  Juniata.  144  Pa.  St.  365. 
22  ./Vtl.  896,  13  L.  R.  .\.  431;  Cham- 
bersbnrg  Turnpike  Road,  In  re,  20 
Pa.  Super.   Ct.   173. 

•'•«  Texas  &c.  R.  Co.  v.  Eddy.  42 
.•\rk.  527:  San  Jose  &c.  Co.  v. 
Mayne,  83  Cal.  566,  23  Pac.  522: 
Dudley  v.  Minnesota  &c.  R.  Co., 
77  Iowa  408,  42  N.  W.  359;  New  Or- 
leans &c.  R.  Co.  V.  Barton,  43  La. 
Ann.  171,  9  So.  19;  Virginia  &c. 
R.  Co.  V.  Henry.  8  Ncv.  165;  Wray 
V.  Knoxville  &c.  R.  Co.,  113  Tenn. 
544,  82  S.  W.  471.  Sec  also  to 
.same  effect  Cincinnati  &c.  R.  Co. 
V.  McDougall,  108  Ind.  179  (dis- 
tinguished, however,  in  the  Indi- 
ana case  cited  in  last  preceding 
note).     The   refusal    of   a    court   to 


permit  a  railroad  comi)any  to  show 
on  cross-examination  of  tlie  owner 
of  platted  property  sought  to  be 
condemned  that  he  liad  for  many 
years  returned  the  land  for  taxa- 
tion as  acreage  property  and  not 
as  lots  and  I)locks  can  not  be  com- 
])lained  of.  unless  it  is  shown  that 
the  valuation  by  acreage  was  less 
than  bj-  lots  and  blocks.  Calvert 
&c.  R.  Co.  V.  Smith  (Tex.  Civ. 
App.),  68  S.  W.  68. 

^'^  Anthony  v.  New  York  ^c.  R. 
Co.,  162  Mass.  60,  37  N.  E.  780; 
Suffolk  &c.  R.  Co.  V.  West  End 
&c.  Co.,  137  N.  Car.  .3,30.  49  So. 
350.  68  1,.  R.  A.  333:  Ridley  v. 
Seaboard  iKrc.  R.  Co..  124  N.  Car. 
37.  32  S.  E.  379;  Nelson  v.  West 
Duluth,  55  Minn.  497,  57  N.  W. 
149;    1    Elliott    Ev.   §    181. 

^1  Selma  t*tc.  R.  Co.  v.  Keith, 
53  Ga.  178;  Illinois  &c.  R.  Co.  v. 
Von  Horn,  18  111.  257;  Lafayette 
&c.  R.  Co.  V.  Winslow,  66  111.  219; 
Evansville  &c.  R.  Co.  v.  Cochran. 
10  Ind.  560;  Erankfort  &c.  R.  Co. 
V.  Windsor.  51   Ind.  238;  Henry  v. 


DSo  I'K()('i;i>l   RK    IN    AI'I'KOI'KIATIOX    ('ASKS  §1333 

testilN'  as  an  cx])frl  lia\  iiii^'  peculiar  skill  or  scit'iitit'ic  attainments, 
luit  as  ha\in.n-  knowledge  of  tlu'  \alue  of  i)r(i])c'rty.'''-  The  weight 
of  the  testimony  depends  in  a  great  degree,  of  course,  upon  the 
knowledge  of  the  ^\•itness  and  the  facts  upon  which  his  testimony 
is  based.  .\n  owner  of  land  taken  for  a  riglit  of  way  by  a  rail- 
road com])an\'.  who  has  resided  upon  and  im])ro\ed  it  for  several 
\  ears,  and  who  swears  that  he  knows  what  it  is  worth,  is  a  com- 
]H'tent  witness, '■■  but  he  has  oidy  the  same  standing  as  any  other 
witness  of  ec[uai  knowledge,  and  it  is  error  lor  the  court  by  its 
instructions  to  call  sjiecial  attention  to  the  land-owner's  testi- 
mon\/''  So.  a  former  owner  of  the  leasehold  who  has  a  general 
familiarity  with  such  \  alues  in  the  neighborhood  is  competent  to 
express  an  ojiinion  on  the  \alue  of  the  leasehold."''  A  farmer  liv- 
ing near  and  knowing  the  market  value  of  land  in  the  neighbor- 
hood,''" or   wlio  has  examined   the  land   with  a   view  of  buying 


Dubuque  &c.  R.  Co.,  2  Iowa  288;  v.  Western  Union  R.  Co.,  25  Wis. 
Harrison  v.  Iowa  Midland  R.  Co.,  ()0:  1  P:iliott  Ev.  §  685. 
36  Towa  323:  Snow  v.  Boston  &c.  ''-Johnson  v.  Freeport  &c.  R. 
R.  Co..  65  Maine  230:  Russell  v.  Co..  11  111.  413;  Diedrich  v.  North- 
Horn  Pond  Branch  R.  Co.,  4  Gray  western  &c.  R.  Co.,  47  Wis.  662, 
(Mass.)  607:  Wynian  v.  Lexing-  3  N.  W.  749:  Frankfort  &c.  R.  Co. 
Ion  &o.  R.  Co.,  13  Mete.  CMass.)  v.  Windsor.  51  Ind.  238:  Snow  v. 
316;  Tucker  v.  :Massachusetts  R.  Boston  &c.  R.  Co.,  65  Maine  230; 
Co..  118  -Mass.  546;  Lchmicke  v.  ShaUuck  v.  Stoneham  Branch  R. 
St.  Paul  &c.  R.  Co.,  19  :\Iinn.  464;  Co..  6  Allen  (Mass.)  115.  Sec  Uni- 
Sherwood  v.  St.  Paul  &c.  R.  Co.,  acke  v.  Chicago  &c.  R.  Co..  67  W^is. 
21  Minn.  127;  Tate  v.  .Missouri  &c.  108,  29  N.  W.  899. 
R.  Co.,  64  ATo.  149:  Republican  '■•'■Burlington  &c.  R.  Co.  v. 
\'allcy  R.  Co.  V.  Arnold,  13  Nebr.  Scliluntz.  14  Nebr.  421;  Sioux  City 
485.  14  X.  W.  478;  Troy  &c.  R.  Co.  &c.  R.  Co.  v.  Weimer.  16  Nebr. 
V.  Fee,  13  llarb.  (N.  Y.)  169:  Troy  272,  20  N.  W.  349;  Edmands  v. 
&c.  R.  Co.  V.  Northern  Turnp.  Boston,  108  Mass.  535. 
Co.,  16  r.arlx  (N.  Y.)  100:  Ron-  '•■*  Jacksonville  &c.  R.  Co.  v. 
(lout  c^c.  R.  Co.  V.  Deys,  5  Fans.  AValsli,  106  ill.  253. 
(X.  >'.)  298;  Cleveland  &c.  R.  Co.  "■•■••  Coons  v.  McKecs  Rock  Bor- 
V.  i'.all.  5  Ohio  St.  568;  Fast  Penn-  (uigh,  243  Pa.  340.  90  Atl.  141.  See 
sylvania  R.  Co.  v.  Hiester.  40  Pa.  also  Cluck  v.  Houston  &c.  R.  Co., 
St.  53;  Pittsburg  &c.  R.  Co.  v.  34  Tex.  Civ.  App.  452.  79  S.  W.  80. 
Rose,  74  Pa.  St.  362;  Dallas  &c.  '■••■  Pingery  v.  Cherokee  &c.  R. 
R.  Co.  V.  Chenault,  4  Tex.  App.  Co..  78  Iowa  438,  43  N.  W. '285; 
Civ.  Cas.  171,  16  S.  W.  173;  Snyder  Kansas  Central   R.  Co.  v.  Allen.  24 


^  1333 


RAILROADS 


984 


it."  or  a  real  estate  man  who  has  been  deahng  in  lots  near  those 
sought  to  be  condemned,"^  or  an  officer  who  has  assessed  the 
property  for  taxation,"^  or,  in  general,  any  person  who  is  shown  to 
l>e  famihar  with  the  value  of  the  particular  piece  of  land  across 
whicli  the  railroad  is  l)eing  built,^°  is  a  competent  witness  as  to 


Kans.  33;  Lcroj-  &c.  R.  Co.  v. 
Hawks,  39  Kans.  638,  18  Pac.  943, 
7  Am.  St.  566;  T.croy  &c.  R.  Co.  v. 
Ross.  40  Kans.  598,  20  Tac.  197,  2 
L.  R.  .\.  217  and  note;  Chicago 
&c.  R.  Co.  V.  Cospcr,  42  Kans. 
561,  22  I'ac.  634:  Russell  v.  Morn 
Pond  Branch  R.  Co.,  4  (iray 
(Mass.)  607;  Northeastern  Ne- 
braska R.  Co.  V.  Frazier,  25  Nebr. 
53,  40  N.  W.  609;  Robertson  v. 
Knapp,  35  N.  Y.  91;  Cnrtin  v.  Nit- 
tany  Valley  R.  Co..  135  Pa.  St.  20, 
19  .^tl.  740;  Snyder  v.  Western 
U.  R.  Co.,  25  Wis.  60.  Contra, 
Ruffum  V.  New  York  &c.  R.  Co., 
4  R.  1.  221.  Tn  Brown  v.  Provi- 
dence &c.  R.  Co.,  12  R.  I.  238,  it 
was  held  that  fanners  were  only 
competent  to  say  how  much  land 
was  worth  for  farming  purposes, 
and  not  to  say  what  it  was  worth 
generally. 

67  Pittsburg  &c.  R.  Co.  v.  Reed 
(Pa.  St.),  6  Atl.  838,  28  Am.  &  Eng. 
R.   Cas.  233. 

C8  Central  Branch  R.  Co.  v.  An- 
drews. 37  Kans.  162,  14  Pac.  509. 
Any  person  knowing  the  selling 
price  of  lots  in  the  vicinity  may  ex- 
press an  opinion  as  to  the  value 
of  the  land  taken.  Pittsburg  &c. 
R.  C'K  V.  Robinson.  95  Pa,  St.  426. 
.And.  in  general,  any  i^erson  who 
has  bought  or  sold  land  in  the 
vicinity  is  a  competent  witness. 
Houston  &c.  R.  Co.  v.  Knapp,  51 
Tex.   592;   Snow  v.   Boston   &c,   R. 


Co.,  65  Maine  230;  Curtis  v.  St. 
Paul  &c.  R.  Co.,  20  Minn.  28; 
Swan  V.  Middlesex  Co.,  101  Mass. 
173,  Diedrich  v.  Northwestern  U. 
R.  Co.,  47  Wis.  662,  3  N.  W.  749; 
Carter  v.  Thurston,  58  N.  If,  104, 
42  Am.  Rep.  584. 

69  Brown  v.  Providence  Szc.  R. 
Co.,  5  Gray  (Mass.)  35;  Oregon 
Cascade  R.  Co.  v.  Vaily,  3  Ore. 
164.  The  of^cial  return  of  muni- 
cipal assessors  fixing  the  value  of 
the  land  for  purposes  of  taxation 
is  not  admissible  in  evidence;  the 
officer  must  be  examined  under 
oath.  Webber  v.  Eastern  R.  Co., 
2  Mete.  (Mass.)  147;  Dudley  v. 
Minnesota  &c.  R.  Co,,  77  Towa 
408.  42  N.  W.  359,  See  Birming- 
ham Mineral  R.  Co,  v.  Smith,  89 
Ala.  305,  7  So.  634;  San  Jose  &c. 
R.  Co,  V.  Mayne,  83  Cal.  566,  23 
Pac.  522. 

70  Rlakeley  v.  Chicago  &c.  R. 
Co..  25  Nebr.  207,  40  N.  W.  956; 
Sioux  City  &c.  R.  Co.  v.  Weimer, 
16  Nebr.  272,  20  N.  W.  349;  Repub- 
lican Valley  R.  Co.  v.  Arnold,  13 
Nebr.  485,  14  N.  W.  478,  Persons 
who  have  acted  as  commissioners 
in  assessing  damages  for  similar 
land  taken  for  public  use  are  com- 
l)etent  witnesses  as  to  its  value. 
Webber  v.  Eastern  R.  Co.,  2  Mete. 
(Mass.)  147;  Dickenson  v.  Fitch- 
burg,  13  Gray  (Mass,)  546,  .\nd 
the  fact  that  the  witness  was  him- 
self a  viewer  to  assess  damages  in 


985 


PROCEDURE  IN  .APPROPRIATION   CASES 


§1333 


its  value. '^  The  usual  rule  in  such  cases  is  to  call  a  witness,  and 
ask  him,  generally,  if  he  has  knowledge  of  the  value  of  the  prop- 
erty in  question,  or  property  of  that  kind.  If  he  answers  that  he 
has,  he  is  allowed  to  state  the  value  in  his  judgment,  and  on 
cross-examination  his  means  of  knowledge,  or  qualifications  to 
testify  upon  the  subject,  may  be  particularly  inquired  into.  If  he 
shows,  upon  the  cross-examination,  that  he  has  such  knowledge, 
although  his  knowledge  of  values  is  limited,  his  testimony  is  still 
permitted  to  go  to  the  jury  for  what  it  is  worth.^^  But  there  is 
no  presumption  in  favor  of  the  competency  of  a  witness  who 


the  same  case  does  not  render 
him  incompetent  as  a  witness  when 
the  question  of  damages  comes 
before  a  jury  on  appeal.  Dorian 
■^•.  East  Brandywine  &c.  R.  Co.,  46 
Pa.  St.  520.  A  witness  may  be 
asked  as  to  his  having  previously 
testified  in  similar  proceedings,  in 
order  to  test  his  qualifications. 
Cliandler  v.  Jamaica  Pond  Aque- 
duct  Co.,   125   Mass.   544. 

^1  In  Winklemans  v.  Des  Moines 
&c.  R.  Co.,  62  Iowa  11,  17  N.  W. 
82,  the  court  held  that  the  fact  that 
a  witness,  examined  as  to  the  val- 
ue of  land,  based  his  estimate  upon 
what  he  heard  others  say  in  rela- 
tion thereto,  will  not  render  him 
incompetent,  but  his  knowledge 
may  be  fully  tested  on  cross-ex- 
amination, that  the  jury  may  judge 
of  the  value  of  his  opinion.  The 
court  said:  "The  knowledge  which 
qualifies  a  witness  to  testify  as 
to  values,  must  necessarily  consist 
largely  of  hearsay.  The  examina- 
tion of  market  reports,  and  infor- 
mation acquired  from  others,  as 
to  sales  of  propertj^  qualifies  a 
witness  to  testify  as  to  values."  It 
IS  not  necessary  that  the  witness 
should  himself  have  been  upon  the 
land.     Lehmicke  v.  St.  Paul  &c.  R. 


Co..  19  Minn.  464.  But  in  Le  Roy 
&c.   R.   Co.  v.   Ross,  40  Kans.  598. 

2  L.  R.  A.  217  and  note,  the  court 
saj-s:  "The  opinion  of  no  farmer 
not  living  in  the  neighborhood  of 
tlie  land  and  not  acquainted  witli 
its  situation  and  fertility,  its  ad- 
vantages, disadvantages,  etc., 
ought  to  be  received  in  regard  to 
the  value  of  the  land.  Farmers  not 
employed  in  Iniying  and  selling 
real  estate,  and  having  no  knowl- 
edge of  the  facts  in  issue,  ought 
not  to  be  permitted  to  give  their 
opinions  from  a  map  of  the  route 
of  the  road,  and  upon  hearsay  evi- 
dence onh'."  Leroy  &c.  R.  Co.  v. 
Hawk,  39  Kans.  638,  18  Pac.  943. 
7  Am.  St.  566. 

'2  Johnson  v.  Freeport  &c.  R. 
Co.,  Ill  111.  413;  Winklemans  v. 
Des  Moines  &c.  R.  Co.,  62  Iowa 
11,  17  N.  W.  82;  Snow  v.  Boston 
&c.  R.  Co.,  65  Maine  230;  Swan  v. 
Middlesex  Co.,  101  Mass.  173; 
Sherwood  v.  St.  Paul  &c.  R.  Co., 
21  Minn.  127;  Carter  v.  Thurston. 
58  N.  H.  104.  42  Am.  Rep.  584; 
Houston  &c.  R.  Co.  v.  Knapp,  51 
Tex.  592;  Farrand  v.  Chicago  &c. 
R.  Co.,  21  Wis.  435;  Diedrich  v. 
Northwestern  R.  Co.,  47  Wis.  662, 

3  N.  W.   749.     See  Minnesota  &c. 


S  1333 


RAILROADS 


986 


offers  to  testify  ris  to  the  value  of  land;  and  where  his  compe- 
tency is  challcn.iied  it  must  be  shown  that  he  has  some  knowledp^e 
upon  which  to  base  an  o])inion  as  to  its  value.' '  The  extent  of 
his  knowleds^e  should  be  shown  to  enable  the  jury  to  assi.s:n  to 
his  evidence  the  proper  weight.'^  and  it  is  projier.  within  reason- 
al)le  limits,  for  a  witness  in  his  examination  in  chief  to  .give  the 
reasons  upon  which  his  opinion  is  based."'"  An  objection  to  the 
competency   of  a   witness  must   generally   be   made   when    he   is 


R.  Co.  v.  Gluck.  45  Minn.  463.  48 
X.  W.  194:  Wyman  v.  Lexington 
&c.  R.  Co.,  13  Mete.  (Ky.)  316: 
Chicago  &c.  R.  Co.  v.  Woodward. 
48  Kans.  599,  29  Pac.  1146:  Rirnv 
ingham  &c.  R.  Co.  v.  Smith.  89 
■\la.  305.  7  So.  634:  1  Elliott  Ev, 
§  635. 

'■■'  Missouri  Pac.  R.  Co.  v.  Coon. 
15  Xchr.  232.  18  X.  \V.  62:  Boston 
&c.  R.  Co.  V.  Montgomery.  119 
Mass.  114:  Central  Pac.  R.  Co.  v. 
Pearson.  35  Cal.  247:  Bufifum  v. 
New  York  &c.  R.  Co..  4  R.  T.  221. 
See  also  1  Elliott  Ev.  §  635.  In 
Markowitz  v.  Pittsburg  &c.  R.  Co.. 
216  Pa.  St.  535,  65  M\.  1097,  1098. 
it  is  held  that  the  competency  of 
the  witness  is  a  preliminary  ques- 
tion to  be  passed  upon  by  the 
court  after  proper  examination,  be- 
fore the  witness  is  permitted  to 
testify  as  to  the  value,  and  it  i^ 
said:  "The  witness  should  have 
some  special  opportunity  for  ob- 
servation, and.  to  a  reasonable  ex- 
tent, have  in  his  mind  the  data 
from  which  a  proper  estimate  of 
value  ought  to  be  made.  Pitts- 
burg &c.  R.  Co.  V.  Vance.  115  Pa. 
,325.  8  Atl.  764.  Tie  should  be  fa- 
miliar with  the  property  ui)on 
which  he  is  asked  to  fix  a  value, 
its  area,  the  uses  to  which  it  may 
be  put.  the  extent  and  ci^ndition  of 


its  improvements,  and,  in  addition 
thereto,  should  have  some  knowl- 
edge of  values  in  the  neighborhood 
and  the  general  selling  price  of 
property  in  the  locality  at  or  near 
the  time  of  the  appropriation^ 
Friday  v.  Pennsylvania  R.  Co.,  204 
Pa.  405.  54  .-Xtl.  339."  See  also 
Burkhard  v.  Pennsylvania  Water 
Co..  243  Pa.  369.  90  Atl.  157.  Where 
no  objection  was  offered  to  the 
testimony  of  a  witness  in  the  court 
below,  it  will  be  presumed  that  he 
was  competent  to  express  an  opin- 
ion as  to  the  value  of  the  land 
condemned.  Durham  &c.  R.  Co.  v. 
Bullock  Church.  104  N.  Car.  525. 
10  S.  E.  761. 

'*  McReynolds  v.  Burlington  &c. 
R.  Co..  106  III.  152:  Johnson  v. 
Freeport  &c.  R.  Co..  Ill  III.  413. 
A  witness  may  be  interrogated  on 
cross-examination  as  to  the  vahu- 
of  other  real  estate  in  the  neigh- 
borhood, for  the  purpose  of  test- 
ing his  competency  as  a  judge  of 
land  values,  although  the  land 
about  which  incjuiry  is  made  is  not 
shown  to  be  similar  to  that  sought 
to  be  condemned.  Uniacke  v.  Chi- 
cago &c.  R.  Co.  67  Wis.  108.  29  N. 
W.  899. 

-•■  Illinois  &c.  R.  Co.  V.  Von 
Iforn.  18  III.  257:  Lafayette  &c.  R. 
Co.   V.    Winslow,    66    111.    219:    Mc- 


{)S7  PHOCKDIHK   IX    APPROPRIATION   CASES  §1334 

offered,  or  it  is  waived.'"  The  discretion  exercised  by  the  judge 
or  presiding  officer  at  the  trial  in  accepting  or  rejecting  a  witness 
after  learning  what  knowledge  he  claims  and  the  sources  of  that 
knowledge,  will  only  be  interfered  with  in  cases  of  palpable 
error."' 

§  1334  (1038).  Opinions  of  witnesses. — Witnesses  who  are 
acquainted  with  the  property  sought  to  be  condemned  may 
usually  give  their  opinions  as   to  its  value.''*     By   some   courts 

Clean  v.  Chicago  &c.  R.  Co..  67  derson.  39  Ark.  107;  Texas  &c.  R. 
Iowa  568,  25  N.  W.  782:  Sexton  v.  Co.  v.  Kirby.  44  Ark.  103;  Little 
North  Bridgewater,  116  .Mass.  200;  Rock  &c.  R.  Co.  v.  Woodrufif.  49 
Sawyer  v.  Boston.  144  .Mass.  470.  Ark.  381.  5  S.  W.  792.  4  Am.  St. 
11  N.  E.  711;  Brown  v.  Corey.  43  51;  Central  Pacific  R.  Co.  v.  Pear- 
Pa.  St.  495;  Snyder  v.  Western  son.  35  Cal.  247;  Cincinnati  &c.  R. 
Union  R.  Co..  25  Wis.  60.  But  Co.  v.  ^lims.  71  Ga.  240;  Johnson 
matters  not  competent  can  not  be  v.  Freeport  &c.  R.  Co..  Ill  111. 
introduced  to  fortify  the  opinion  413;  Chicago  &c.  R.  Co.  v.  Blake, 
of  an  expert,  under  the  guise  of  116  111.  163.  4  N.  E.  488;  Indian- 
reasons  for  his  opinion,  though  apolis  &c.  R.  Co.  v.  Pugh,  85  Ind. 
they  may  be  gone  into  on  cross-  279;  Yost  v.  Conroy.  92  Ind.  464. 
examination  to  test  and  diminish  47  .^m.  Rep.  156;  Winklemans  v. 
the  weight  of  his  opinion.  Pier-  Des  Moines  &c.  R.  Co.,  62  Iowa 
son  V.  Boston  &c.  R.  Co..  191  11.  17  N.  W.  82;  McClean  v.  Chi- 
Mass.  223.  11  N.  E.  769.  Details  cago  &c.  R.  Co..  ({1  Iowa  568.  25 
as  to  particular  sales  or  transac-  N.  W.  782:  Kansas  Central  R.  Co. 
tions  should  be  given  only  upon  v.  .Allen,  24  Kans.  2,l\  Central 
cross-examination.  Central  Pac.  Branch  R.  Co.  v.  .Andrews.  2,1 
R.  Co.  V.  Pearson.  35  Cal.  247.  See  Kans.  162.  14  Pac.  509;  St.  Louis 
Missouri  &c.  R.  Co.  v.  Haines.  10  &c.  R.  Co.  v.  Chapman.  38  Kans. 
Kans.  439.  •''07.  16  Pac.  695,  5  Am.  St.  744: 
'6  Watts  V.  Derry.  11  N.  H.  498.  Snow  v.  Boston  &c.  R.  Co..  65 
"7  Chandler  v.  Jamaica  Pond  Maine  230;  Shattuck  v.  Stoneliam 
.Aqueduct  Co..  125  Mass.  544;  Bos-  &c.  R.  Co.,  6  Allen  (Mass.)  115: 
ton  &c.  R.  Co.  V.  Montgomery,  Hawkins  v.  l-"all  River,  119  Mass. 
119  Mass.  114;  Tucker  v.  Massa-  94:  Lehmickc  v.  St.  Paul  &c.  R. 
chusetts  Cent.  R.  Co..  118  Mass.  Co..  19  Alinn.  464;  Sherman  v.  St. 
546.  The  determination  as  to  his  Paul  &c.  R.  Co..  30  Minn.  211,  15 
competency  is  for  the  curt  and  N.  W.  239:  Hosher  v.  Kansas  City 
largely  in  its  discretion.  Potts  v.  &:c.  R.  Co.,  60  INIo.  303;  Springfield 
Minneapolis  &c.  R.  Co.,  124  Minn.  iSic.  R.  Co.  v.  Calkins.  90  Mo.  538. 
413.  145  N.  W.  161.  3  S.  W.  82:  Republican  Valley  R. 
•''St.    Louis    &c.    R.    Co.    v.    -An-  Co.    v.    .Arndd.    13    Nebr.    485,    14 


V   133-Jr  HAILKOADS  988 

witnesses  are  also  permitted  to  give  an  opinion  as  to  the  amount 
of  damage  or  benefit  resulting  to  an  estate  from  the  construction 
and  working  of  the  railroadJ^  This  practice  is  rejected  by  other 
courts  because  it  calls  upon  witnesses  to  express  an  opinion  upon 
the  precise  point  which  the  issues  present  for  the  decision  of  the 
jur}',^"  but  they  permit  the  witnesses  to  give  an  opinion  as  to  the 

N.    W.    478;    Troy    &c.    R.    Co.    v.  v.   Foi-cman,  24   W.   \'a.  662;   Sny- 

Northern  T.  Co.,  16  Barb.  (N.  Y.)  dcr  v.  Wcstoni  U.   R.  Co.,  25  Wis. 

100:   Utica   &c.    R.    Co.,    ^Matter   of,  60;     Dicdricli    v.    NortluvesttM-n    R. 

56   Barb.   (N.  Y.)   456;   Ramsey  v.  Co.,    47    Wis.    662,    3    N.    W.    749; 

New   York  &c.   R.    Co.,    133   X.   Y.  Wasliburn     v.     Milwaukee    &c.    R. 

79,  30  N.  E.  654,  15  L.  R.  A.  618:  Co.,    59   Wis.   364,    18    N.   W.    328. 

Cleveland    &c.    R.    Co.    v.    Ball,    5  Sec  contra,   New   York  &c.  R.  Co., 

Ohio  St.  568;  Watson  v.  Pittsburji:  Matter    of,    29    Hun    (N.    Y.)    609. 

&c.   R.   Co.,   7)7  Pa.   St.   469;    Penn-  .\nd    compare    Roberts    v.    Railway 

sylvania  &c.  R.   Cn.  v.   P.unncll.  81  Co..  128  N.  Y.  455.  28  N.  E.  486.  13 

Pa.    St.   414;    PittsburR   &c.    R.    Co.  L.  R.  .\.  499;  Doyle  v.  Railway  Co.. 

V.  Robinson,  95  Pa.  St.  426:  Ting-  128  N.  Y.  488.  28  N.  E.  495;  Union 

ley    V.     Providence,    8    R.    1.    493:  Elevated    Co.    v.    Kansas    City   &c. 

Washburn    v.    Milwaukee    &c.     R.  Co..  135  ^lo.  353,  iG  S.  W.  1071. 

Co..  59  Wis.  364,   18  N.  W.  328.  «"  Chicago  &c.  R.  Co.  v.  Spring- 

"^  Texas  &c.  R.  Co.  v.  Kirby,  44  field  &c.  R.  Co..  67  111.  142;  Cleve- 

-Ark.    103;   Jacksonville   &c.    R.   Co.  land  &c.  R.  Co.  v.  Ball,  5  Ohio  St. 

v.    Caldwell,   21    111.    75;    Cairo    &c.  568;  Atlantic  &c.  R.  Co.  v.   Camp- 

R.  Co.  V.  Woosley,  85  111.  370;  Chi-  bell,  4  Ohio  St.   583.   64  Am.   Dec. 

cago  V.  McDonough,  112  Til.  85;  607;  Baltimore  &c.  R.  Co.  v.  John- 
Snow  V.  Boston  &c.  R.  Co..  65  son,  59  Tnd.  247;  Ohio  &c.  R.  Co. 
:Maine  230;  Shattuck  v.  Stoneham  v.  Nickless,  71  Ind.  271.  See  also 
Branch  R.  Co.,  6  Allen  (Mass.)  Elliott  Roads  and  Streets  Hrd 
115;  Brainard  V.  Boston  &c.  R.  Co..  cd.),  §  291;  1  Elliott  Ev.  §  674: 
12  Gray  (Mass.)  407;  Lehmicke  v.  Chicago  &c.  R.  Co.  v.  Teese,  42 
St.  Paul  &c.  R.  Co.,  19  Minn.  464;  Okla.  188.  140  Pac.  1166,  52  L.  R. 
Sherwood  v.  St.  Paul  &c.  R.  Co..  A.  (N.  S.)  167,  and  other  cases 
21  Minn.  127;  Sherman  v.  St.  Paul  cited  in  note  to  same  effect  as  to 
&c.  R.  Co.,  30  Minn.  227,  15  N.  W.  damages  for  personal  injury.  Tn 
2.39;  Nevada  &c.  R.  Co.  v.  De  Eis-  Union  Elevator  Co.  v.  Kansas  City 
sa.  103  Mo.  125.  15  S.  W.  Z66\  &c.  Co..  135  Mo.  353,  .36  S.  W.  1071. 
Utica  &c.  R.  Co.,  Matter  of.  56  this  is  conceded  to  be  the  better 
P.arb.  CN.  Y.)  456;  Hine  v.  New  rule,  but  it  is  held  that  a  judgment 
York  &c.  R.  Co.,  36  Hun  (N.  Y.)  should  not  be  reversed  merely  be- 
293;  Portland  v.  Kamm.  10  Ore.  cause  it  was  violated  by  a  witness 
383;  Pittsburg  &c.  R.  Co.  v.  Rob-  giving  his  opinion  as  to  the  amount 
inson,  95  Pa.  St.  426;  Railroad  Co.  of  damages.     Citing  Roberts  v.  Ry. 


989 


PROCKDIKI-:    1\     M'l'UOPRIATIOX   CASES 


§1334 


value  of  the  property  before  and  after  the  taking.^^  In  some  of 
the  states  where  no  allowance  is  made  for  benefits  in  the  con- 
demnation of  land  for  railroad  purposes,  this  rule  is  also  rejected 
and  the  courts  only  permit  the  witness  to  state  the  value  of  the 
land  before  the  taking,  and  the  nature  and  extent  of  particular 
injuries,  leaving  the  jury  to  estimate  the  compensation  due  to  the 
land-owners  on  account  of  them,^^  ^y^  ^his  rule  is  open  to  the 
grave  objections  that  it  necessarily  assumes  that  the  jury  is  ac- 
quainted with  the  value  of  all  kinds  of  property  subject  to  con- 
demnation, and  that  they  can,  unaided  by  the  opinions  of  wit- 
nesses, correctly  estimate  the  efifect  upon  that  value  of  every  pos- 
sible injury  that  can  be  inflicted.^^   In  states  where  opinions  as  to 


Co.,  128  N.  Y.  455.  28  N.  E.  486; 
Doyle  V.  Railway  Co.,  128  N.  Y. 
488,  28  N.  E.  495.  See  also  Schmoe 
V.  Cotton,  167  Ind.  364,  79  N.  E, 
184,    citing   the    Missouri    case. 

81  Snow  V.  Boston  &c.  R.  Co.. 
65  Maine  230;  Swan  v.  Middlesex 
Co.,  101  Mass.  173;  Curtis  v.  St. 
Paul  &c.  R.  Co.,  20  Minn.  28:  Sher- 
wood V.  St.  Paul  &c.  R.  Co..  21 
Minn.  127;  Carter  v.  Thurston,  58 
N.  H.  104,  42  Am.  Rep.  584;  Hous- 
ton &c.  R.  Co.  V.  Knapp,  51  Tex. 
592;  Farrand  v.  Chicago  &c.  R. 
Co.,  21  Wis.  435;  Diedrich  v. 
Northwestern  U.  R.  Co.,  47  Wis. 
662,  3  N.  W.  749.  See  also  Pitts- 
burg &c.  R.  Co.  V.  Robinson,  95 
Pa.  St.  426;  Eberhart  v.  Chicago 
&c.  R.  Co.,  70  111.  347;  Yost  v. 
Conroy,  92  Ind.  464,  47  Am.  Rep. 
156;  Chicago  &c.  R.  Co.  v.  Wyser 
Land  Co.,  163  Ind.  288.  290,  292, 
69  N.  E.  546;  Kansas  City  &c.  R. 
Co.  V.  Norcross,  137  Mo.  415.  38 
S.  W.  299;  Atchison  &c.  R.  Co.  v. 
Boerner,  45  Nebr.  453.  6^  N.  W. 
787. 

8- Some  early  cases  in  Indiana 
are  apparently  to  tliis   eflfcct.     Ev- 


ansville  &c.  R.  Co.  v.  Fitzpatrick, 
10  Ind.  120;  Baltimore  &c.  R.  Co. 
V.  Johnson,  59  Ind.  247;  Baltimore 
&c.  R.  Co.  V.  Stoner,  59  Ind.  579. 
But  these  cases  are  criticised  and 
limited  in  Yost  v.  Conroy,  92  Ind. 
464.  47  Am.  Rep.  156,  and  are  con- 
trary to  other  decisions  in  Indiana. 
There  are  some  cases  in  otiicr 
states  that  support  the  doctrine 
referred  to.  ^lontgomery  &c.  R. 
Co.  V.  Varner,  19  Ala.  185;  Ala- 
bama &c.  R.  Co.  V.  Burkett,  42 
Ala.  83;  Prosser  v.  Wapelo  County-. 
18  Iowa  327:  Harrison  v.  Iowa 
Midland  R.  Co..  36  Iowa  323;  Eliz- 
abethtown  &c.  R.  Co.  v.  Helm,  8 
Bush  (Ky.)  681:  Burlington  &c.  R. 
Co.  V.  Schluntz,  14  Nebr.  421.  16 
N.  W.  439:  Troy  &c.  R.  Co.  v. 
Northern  Turnp.  Co..  16  Barb.  (X. 
Y.)  100:  Rochester  &c.  R.  Co.  v. 
Budlong,  6  How.  Pr.  (N.  Y.)  467: 
Lincoln  v.  Saratoga  &c.  R.  Co..  23 
Wend.   (N.  Y.)   425. 

83  Yost  V.  Conroy.  02  Ind.  464. 
47  Am.  Rep.  156.  In  the  case  cited 
it  was  said:  "Of  what  assistance 
to  a  jury  composed  of  clergj-men, 
merchants  and  bankers  would  be  a 


:^  13;j4  hailkoads  990 

the  amount  of  the  damages  are  held  admissible,  witnesses  may 
give  their  opinions  as  to  particular  matters  affecting  the  value  of 
the  land  such  as  the  capacity  of  the  land  for  valuable  uses  dif- 
ferent from  that  to  which  it  is  devoted,*"*  or  the  extent  to  which 
the  property  is  damaged  by  any  of  the  several  items  of  injury 
that  the  jury  are  called  upon  to  consider  in  estimating  the 
owner's   compensation.**'      But   they   are   not   permitted    to   give 

descriptinii  of  tlic  niimitcst  accura-  tlicy  wnuld  ho  along  the  car  track, 
cy,  without  some  estimate  of  val-  so  as  to  render  them  accessible, 
lies  by  competent  witnesses?  Pos-  the  plat  of  such  subdivision  was 
sibly.  it  would  enable  such  a  jury  properly  admitted  in  evidence;  and 
to  form  a  crude  conjecture;  it  that  the  defendants  having  claimed 
could  do  but  little  more."  that  the  taking  of  the  land  would 
***  Chandler  v.  Jamaica  Pond  Aq-  deprive  them  of  switch-track  con- 
ueduct  Co..  125  Mass.  544.  In  a  nections  with  a  railroad,  and  in 
suit  to  condemn  land  for  a  railroad  support  thereof  offered  evidence 
right  of  way  in  possession  and  use  that  the  railroad  officials  refused 
of  a  traction  company,  evidence  to  connect  a  switch  with  the  main 
that  the  best  use  to  which  the  line  at  a  distance  less  than  3  000 
land  in  its  then  condition  was  feet  west  of  a  tunnel,  no  part  of 
adapted  was  for  railrf)ad  purposes,  which  could  be  on  the  railroad's 
and  of  the  value  of  the  land  for  right  of  way.  the  planiliff  was  en- 
such  purposes,  was  held  admissi-  titled  to  show  in  rebuttal  that  15 
ble.  It  was  also  held  in  the  same  years  prior  a  switch  had  been 
case  that  as  it  was  claimed  that  placed  <in  the  right  of  way  of  the 
land  not  taken  was  valuable  as  a  railroad  conipnny.  connecting  with 
factory  site,  evidence  that  the  the  main  line  1,762  feet  west  of  the 
building  of  the  road  would  be  a  tunnel,  for  the  purpose  of  ship- 
benefit  and  not  an  injury  to  such  ping  clay  on  a  part  of  the  land  not 
factory  site  was  admissible,  though  taken.  Martshorn  v.  Illinf)is  \'al- 
the  witnesses  were  unable  to  esti-  ley  R.  Co.,  216  111.  392,  75  N.  E. 
mate  the  benefit  in  money  that  the  122. 

maintenance    of    the    traction    road  ^•'' Selma  &c.  R.  Co.  v.  Knapp,  42 

should  be  taken  into  consideration  .Ma.   480.      Rockford   &c.   R.   Co.   v. 

in  estimating  damages  and  benefits  .McKinley.    64    111.    33S,:     Hayes    v. 

to  land  not  taken;  that  the  defend-  Ottawa    &c.    R.    Co..    54     111.    373: 

ants,  on  the  same  day  the  condem-  Webber  v.  Eastern  R.  Co..  2  Mete, 

nation    petition    was    filed,    having  (.Mass.)    147;  Tucker   v.   Massachu- 

subdivided  the  land,  which  was  ag-  setts   Cent.   R.   Co..    118    Mass.  546; 

ricultural.  and   filed   a   plat   for  rcc-  Winona  <8:c.   R.  Co.  v.  Waldron,  11 

ord,    showing    the    railroad    track.  Minn.    515,    88    .Am.    Dec.    100    and 

and  the  lots  could  only  be  bought  note;  Pittsburg  &c.  R.  Co.  v.  Rose, 

and  sold  with  the  expectancy  that  74  Pa.   St.  362;    Milwaukee   &c.    R. 


991 


PKOCEDIKH   IN   .MM'ROI'KIATIOX    CASES 


§  183; 


conjectural  oi)inions  as  tf)  matters  that  are  speculative  in  their 
character  or  which  rest  upon  future  possibilities.""'  The  jury  are 
not  bound  by  the  opinions  of  witnesses  but  may  consider  them 
in  connection  with  all  other  facts  in  evidence.**'  It  has  been 
held  that  a  witness  who  has  testified  for  the  land-owner  and 
given  an  opinion  that  the  remainder  of  the  tract  would  be 
greatly  depreciated  in  value  by  the  road  may  be  asked  if  he  knew 
of  any  farm  which  was  depreciated  in  value  by  reason  of  a  rail- 
road going  across  it  like  the  one  in  question  or  that  had  sold  for 
less  on  that  account.*" 

§  1335  (1039).  Power  of  commissioners  to  act  upon  their  own 
knowledge — Evidence. — Upon  principle  no  award  ought  to  stand 
\vhich  is  made  in  a  case  where  no  evidence  is  heard  and  which  is 
based  solely  upon  the  knowledge  of  the  jurors  or  commission- 
ers. We  very  much  doubt  whether  the  question  of  a  citizen's 
right  to  compensation  can  be  made  to  depend  upon  the  judg- 
ment of  jurors  or  commissioners  acting  upon  their  own  knowl- 
edge or  information,  for  in  such  cases  there  is  no  hearing.  But 
some  of  the  courts  have  indicated  a  different  doctrine.^""     Other 


Co.  V.  Eble.  4  Chand.  (Wis.)  11. 
See  ante,  §§  1261,  1262.  A  grazier 
may  give  his  opinion  as  to  the 
effect  upon  cattle  of  their  being- 
disturbed  by  the  operation  of  a 
railroad  through  the  pasture  where 
they  are  kept.  Baltimore  &c.  R. 
Ct>.  v.  Thompson.  10  Md.  76.  The 
opinion  of  witnesses  on  the  ques- 
tion of  incidental  damages  and 
benefits  to  the  property  that  do 
not  attacii  to  other  property  by 
tlie  construction  of  the  road  has 
been  held  admissible.  Wray  v. 
Knoxville  &c.  R.  Co.,  113  Tenn. 
544,  82  S.  W.  471. 

**"  Central  Pac.  R.  Co.  v.  Pear- 
son, 35  Cal.  247;  Elizabethtown 
&c.  R.  C.  V.  Helm.  8  Rush  (Ky.) 
681:  Boston  &c.  R.  Co.  v.  Old  Col- 
ony   &c.    R.    Co.,   3    Allen    (Mass.) 


142:  Gardner  v.  Brookline,  127 
Mass.  358:  Fairbanks  v.  Fitchburg, 
110  .Mass.  224:  Troy  &c.  R.  Co.  v. 
Northern  T.  Co.,  16  Barb.  (N.  Y.) 
100:  Northern  Pac.  R.  Co.  v. 
Union  Lumber  Co..  76  Wash.  563. 
137  Pac.  306. 

»■  Green  v.  Chicago,  97  111.  370: 
Princeton    v.    Gieske,    93    Ind.    102. 

•'*^  EldorackT  &c.  R.  Co.  v.  Ever- 
ett, 225  111.  529.  80  N.  E.  281:  citing 
Chicago  &c.  R.  Co.  v.  Kelly,  221 
111.  498,  n  N.  E.  916.  See  also  the 
case  first  cited  for  evidence  held 
admissible    in    rebuttal. 

'*'''  Columbia  Delaware  Bridge 
Co.  V.  Geisse,  35  N.  J.  L.  474,  36 
N.  J.  L.  537.  The  action  of  the 
commissioners  in  receiving  ex  par- 
te communications  from  one  of 
the    parties    in    the   absence    of    the 


^  i;)35 


RAILHOADS 


992 


courts  liold  that  they  are  at  liberty  to  hear  evidence  if  thev 
choose,  <jr  to  assess  the  damages  from  their  own  knowledge 
gained  by  a  view  of  the  premises/'"  In  some  states  it  is  held  that 
the  jury  or  commissioners  may  base  their  assessment  upon  the 
knowledge  gained  by  a  view  of  the  premises,  even  in  o])position 
to  the  testimony  which  has  been  given  before  them."^     The  gen- 


othcr  party  touching  the  merits  of 
the  controversy,  has  been  held  to 
vitiate  their  award.  Lennox  v. 
Knox  &c.  R.  Co.,  62  Maine  322; 
Harris  v.  Woodstock,  27  Conn. 
567.  It  was  not  error  to  instruct 
that,  in  connection  with  the  testi- 
mony as  to  the  damages,  the  jury 
may  use  and  be  guided  by  their 
iiwn  judgment  in  such  matters. 
H(<yt  V.  Chicago  &c.  R.  Co.,  117 
Iowa  296,  90  N.  W.  724. 

»oSt.  Paul  &c.  R.  Co.  V.  Covell. 
2  Dak.  483.  11  N.  W.  106;  Pennsyl- 
vania R.  Co.  V.  Keiffer,  22  Pa.  St. 
356;  Rondout  &c.  R.  Co.,  Matter 
"i.  V.  Deyo.  5  Lans.  (N.  Y.)  298; 
Kramer  v.  Cleveland  &c.  R.  Co..  5 
Ohio  St.  140.  It  has  been  held 
that  the  commissioners  have  no 
right  to  hear  witnesses  unless  the 
statute  so  provides.  Clarksville 
&c.  Turnp.  Co.  v.  Atkinson.  1 
Sneed  (Tenn.)  426;  Vanwickle  v. 
Camden  &c.  R.  Co..  14  N.  J.  L. 
162;  Coster  v.  New  Jersey  R.  &c. 
Co..  24  X.  J.  L.  730.  In  Washing- 
ton &c.  R.  Co.  V.  Switzer,  26  Grat. 
(A'a.)  661,  it  was  held  that  the  pro- 
vision that  commissioners  should 
hear  the  parties  made  it  their  duty 
to  hear  the  testimony  of  witnesses 
produced  by  the  parties.  It  has 
been  held  that  the  jury  may  be 
charged  that  where  there  is  con- 
tlict  in  the  evidence  they  may  re- 
sort to  the  evidence  of  their  own 


sense  with  a  view  to  determine 
the  truth.  Seattle  &c.  R.  Co.  v. 
Roeder,  30  Wash.  244,  70  Pac.  498, 
94  Am.  St.  864.  See  also  Blincoe 
V.  Choctaw  &c.  R.  Co.,  16  Okla. 
286,  83   Pac.  903. 

^^  Peoria  &c.  R.  Co.  v.  Sawyer. 
71  111.  361;  Chicago  &c.  R.  Co.  v. 
Hopkins,  90  111.  316;  Peoria  &c.  R. 
Co.  V.  Barnum,  107  111.  160;  Oma- 
ha &c.  R.  Co.  V.  Walker,  17  Nebr. 
432,  23  X.  W.  348;  Evansville  &c. 
R.  Co.  v.  Cochran,  10  Ind.  560. 
Overruled  in  Ilcady  v.  Vevay  &c. 
Turnpike  Co.,  52  Ind.  117;  Kansas 
V.  Butterfield,  89  Mo.  646,  1  S.  W. 
831;  Lehigh  Valley  Coal  Co.  v. 
Chicago,  26  Fed.  415.  They  may 
take  into  account  such  facts  as  they 
have  learned  by  viewing  the  prop- 
erty, in  deciding  whether  the  con- 
struction of  the  improvement  will 
permanently  depreciate  or  increase 
the  market  value  of  the  property. 
Cnlbcrtson  ^-c.  Co.  v.  Chicago.  Ill 
111.  651.  See  also  Baltimore  v. 
Megary.  122  Md.  20,  89  Atl.  331. 
Where  the-  jurj'  viewed  the  prem- 
ises and  the  case  was  submitted 
to  them  without  other  evidence, 
it  was  held,  on  appeal,  tliat  the 
court  could  not  disturb  the  verdict 
since  the  evidence  upon  which  they 
acted  was  not  in  the  record.  Pe- 
oria &c.  R.  Co.  V.  Barnum,  107  111. 
160.  And  even  where  other  evi- 
dence was  offered,  it  was  held  that 


993 


PROCEDURE  IN  APPKOPKIATIOX  CASES 


§  1335 


cral  doctrine  is  that  where  the  statute  provides  for  the  introduc- 
tion of  evidence,  legal  evidence  only  can  be  admitted,^^  but  it 
has  been  said  that  the  court  will  not  set  aside  the  aw^ard  for 
technical  errors  in  accepting  or  rejecting  evidence  where  no  sub- 
stantial injustice  has  been  done.^^  The  parties  are,  however, 
entitled  to  a  hearing,^'*  and  the  denial  to  them  of  this  riglit  is 
sufficient  cause  for  setting  aside  the  award.®^ 


not  haviiii^  a  knowledge  of  what 
tlic  jury  learned  from  a  view  of 
the  property,  the  supreme  court 
could  not  disturb  the  verdict  on 
the  evidence.  Evansville  &c.  R. 
Co.  v.  Cochran,  10  Ind.  560. 

92  Rochester  &c.  R.  Co.  v.  Bud- 
long,  6  How.  Pr.  (N.  Y.)  467;  Cen- 
tral Pac.  R.  Co.  v.  Pearson,  35 
Cal.  247.  The  New  York  Central 
R.  Co.,  Matter  of,  15  Hun  63,  64 
N.  Y.  60.  But,  as  elsewhere  shown, 
the  rules  of  evidence  are  not  us- 
ually so  strictly  applied  before 
commissioners  as  in  ordinary  civil 
actions  in  courts  of  general  juris- 
diction. 

93  Michigan  Air  Line  R.  Co.  v. 
Barnes,  44  Mich.  222,  6  N.  W.  651: 
Port  Huron  &c.  R.  Co.  v.  Voor- 
heis,  50  Mich.  506.  15  N.  W.  882; 
California  Pacific  R.  Co.  v.  Fris- 
bie,  41  Cal.  356.  See  also  Bennet 
v.  Camden  &c.  R.  Co..  14  N.  J.  L. 
145;  New  Jersey  R.  Co.  v.  Suydam. 
17  N.  J.  L.  25:  Hannibal  &c.  R.  Co. 
v.  IMuder,  49  Mo.  165;  Kansas  City 
&c.  R.  Co.  v.  Campbell.  62  Mo. 
585;  Virginia  &c.  R.  Co.  v.  Elliott, 
5  Nev.  358;  Eastern  R.  Co.  v.  Con- 
cord &c.  R.  Co..  47  N.  H.  108.  Tn 
some  cases  this  ruling  is  put  upon 
the  ground  that  as  the  jury  are 
presumed  to  form  their  opinion 
largely  from  their  own  view  of  the 
premises,    their    report    should    not 


be  set  aside  for  errors  in  the  ad- 
mission of  evidence  unless  there  is 
strong  evidence  that  the  parties' 
interest  was  prejudiced  thereby. 
Troy  &c.  R.  Co.  v.  Lee,  13  Barb.  (N. 
Y.)  169;  Troy  &c.  R.  Co.  v.  North- 
ern Turnpike  Co.,  16  Barb.  (N. 
Y.)  100:  Willing  v.  Baltimore  R. 
Co..  5  Whart.  (Pa.)  460;  Western 
Pac.  R.  Co.  V.  Reed,  35  Cal.  621: 
Chicago  &c.  R.  Co.  v.  Hopkins.  90 
111.  316.  For  instances  where  the 
award  was  set  aside  for  errors 
committed  in  receiving  or  reject- 
ing testimony,  see  New  York  &c. 
R.  Co.,  flatter  of,  35  Hun  (N.  Y.) 
260;  Goodwin  v.  Milton.  25  N.  H. 
458. 

04  Weimer  v.  Bunbury,  30  Mich. 
201;  Stuart  v.  Palmer,  74  N.  Y. 
183.  30  Am.  Rep.  289;  Readington 
V.  Dilley,  24  N.  J.  L.  209;  Harness 
V.  Chesapeake  Szc.  Canal  Co.,  1 
Md.  Ch.  248:  Zimmerman  v.  Can- 
field.  42  Ohio  St.  463:  Gamble  v. 
McCrady,  75  N.   Car.  509. 

95  Washington  &c.  R.  Co.  v. 
Switzer,  26  Grat.  (Va.)  661:  Cen- 
tral Pacific  R.  Co.  V.  Pearson.  35 
Cal.  247;  Jones  v.  GofTstown.  39 
N.  H.  254;  Hawley  &c..  Tn  re.  2 
De  G.  &  S.  33.  Where  the  owner 
has  been  prevented  bj'  accident  or 
mistake  from  being  present  at  the 
hearing,  and  the  award  is  clearly 
unjust   to   liim,   a   rehearing   should 


^  1336  |{  Mi.KOAns  994 

§  1336  (1040).  View. —  W'Iutc  tlu'  >t;iluU-  proxidcs  tliat  tin- 
coininissioncrs  shall  view  the  i^remises.  the  »,a-neral  rule  i.s  that 
a  view  is  an  essential  i)art  of  the  proeeedin.qs.'"'  If  the  statute 
is  silent  on  the  subject  the  eourl  ina\  i^nanl  a  \  iew  or  not.  in 
its  discretion."'  It  is  the  theor\-  in  man\  jurisdictions,  where 
there  is  nothins.;-  in  the  statute  to  the  contrary,  seems  that 
the  object  of  the  \  iew  is  to  enable  the  jury  the  better  to  under- 
stand  and  a|)|)l\-   tlie  e\  idencc.  and   so  to  more   intelli.^ently  and 

be   Kraiited    unless   sucli    owm-r   has  111.   566;    Grand    Rapids    (S;o.    K.    Co. 

been  Ruilty  of  laches,  by  which  his  \-.    Choscbro.    74    .Mich.    466.    42    N. 

ri^ihts    have    been    forfeited.      New  W.     66;     Rrakkon     v.     Minneapolis 

York    &o.    R.    Co..    Matter    of.    63  &c.   R.  Co..  29  Minn.  41.   11   N.  W. 

Mow.   Pr.   (N.  Y.)  265;    New   York  124.      Photographic    view    has   been 

Central    &c.    R.    Co..    Matter   of.   64  licld   sufficient   where  an  actual   in- 

N.    Y.   60:    New    York   &c.    R.    Co..  spcction    of   the    property   w-as    im- 

.Mattcr   of.   93    N.   Y.   385.    29    Nun  i)racticable.     Omaha   &c.   R.   Co.  v. 

(N.    Y.)    602;    Bourgeois    v.    .Mills.  I'.ccson.    M)    Xehr.    361.    54    N.    W. 

60  Tex.  76.  557. 

■"■•Western      Pacific      R.      Cn.     v.  ''"King    v.    Iowa    &c.    R.    Co..   34 

Reed.   35    Cal.   621;    Galena    cS:c.    K.  1..wa   458;    Clayton    &c.   R.    Co..    67 

C...   V.   Ilaslani,  7?,  111.  494;    Kanka-  l-.wa    23»,   25    N.    W.    150;    Galena 

kec    &c.    R.    Co.    V.    Straut.    102    III.  &c.   R.    Co.   v.    Haslani.   73   111.  494; 

666;   New   York   cS:c.   R.   Co..   .Matter  Coughlen    v.    Chicago    (S:c.    R.    Co.. 

of.  33  Hun  (N.  Y.)  148;  Charleston  36   Kans.   422.    13   Pac.  813.  .^0   .\m. 

&c.   R.  Co.  V.  Comstock.  36  W.  \'a.  .S:    Eng.    Cas.    330;    Harper    v.    T.c.x- 

263,  15  S.  E.  69.     In  Northern  Pac.  ington    &c.    R.    C(\.   2    Dana    (Ky.) 

R.    Co.    V.    Union    Lumber    Co..    76  227:    Snow   v.    Boston    &c.    R.    Co.. 

Wash.  563.  137  Pac.  306.  it   is  held  65   Maine  230;    Dearborn  v.   P.oston 

that  where,  after  a  view,  a  jm-or  is  tK:c.    R.  Co..  24   .\.   II.   179;    Hopkins 

flischarged     by     consent,     and     an  v.   .Atlantic  (."^rc.   R.   Co.,  36   N.   H.  9. 

other  juror  selected,  the  court   did  72    .\m.    Dec.    287;    Traut    v.    New 

not   err   in   refusing  a  view  by   the  ^'ork   &c.    R.   Co.    (Pa.).   22   W.   N. 

new  juror.     Under  the   New   York  C.  540.  15  .Atl.  678;   Bellingham  &c. 

statute,    it    was    held    that    a    view  R.   Co.   v.   Strand.   4  Wash.  311.   30 

must   be   had   and   the   report   must  I'.ic.    144,   51    .\m.    ^    h-ug.    R.    Cas. 

shr)w  the  fact.     Albany  &c.  R.  Co.  608.      See  also   Chicago   tS:c.   R.   Co. 

V.    Lansing,    16    Barb.    (X.    Y.)    68.  v.  Curless,  27   Ind.  App.  306.  60  N. 

See   generally    F'ort    Street    &c.    R.  E.    467:     Chicago    &c.     R.     Co.    v. 

V.   Backus.  92    Mich.  33,   52   N.   W.  Winslow.  27   Ind.  App.  316.  60   N. 

790;   Gurney  v.  Minneapolis  &c.  R.  E.  466:  Chicago  &c.  R.  Co.  v.  Loer. 

O...    41    Minn.    223.    43    N.    W.   2:  27  Ind.  App.  245.  60  N.  E.  319. 
Mitchell   v.    Illinois   &c.   R.    Co..   85 


995  PROCEDURE  IN  Al'l'KC  )1'1{1  ATK  )X  CASES  §  18:56 

lairly  periorni  their  duties. '"  but  some  of  the  courts  hold  that 
the  jury  inav  act  ou  their  owu  jud.^uient  formed  from  an  inspec- 
tion of  the  premises.'"'  While  the  jury  may  resort  to  their  own 
.^•eneral  knowleds^e  of  the  elements  which  affect  the  assessment, 
in  order  to  determine  the  relative  weight  of  conllicting  testi- 
mony, their  assessment  must  be  supported  by  the  testimony,  or 
it  can  not  stand.'  The  ])rovision  of  the  Colorado  statute  that 
the  jury  in  condemnation  proceedings  may  go  on  the  premises 

08  Lartin    v.    Chicago   &c.    R.   Co..  R.    Co.,    103    III.   App.   210:    Harper 

33  Fed.  415;  .'\tchison  &c.  R.  Co.  v.  T.e.xington  &c.  R.  Co.,  2  Dana 
V.  Schneider.  127  111.  144,  20  N.  E.  (Ky.)  227;  Parks  v.  Boston.  15 
41,  2  L.  R.  A.  422;  Peoria  &c.  Co.  Pick.  (Mass.)  198,  209.  In  Chica.ijo 
V.   Peoria   &c.   R.   Co.,   146   111.  372,  &c.    R.    Co.   v.    Scott.   225    111.    352. 

34  N.  E.  550.  21  L.  R.  A.  ?>7?>\  Jef-  80  N.  E.  204,  it  seems  to  be  held 
forsonvillc  &c.  R.  Co.  v.  P.owen.  that  they  not  only  may  but  should 
40  Tnd.  545;  Close  v.  Samm,  27  consider  knowledge  gained  by  the 
Iowa  503;  Guinn  v.  Towa  &c.  R.  view.  See  generally  2  Elliott  Ev. 
Co.,   131    Iowa  680.  109  N.  W.  209;  §   1243. 

Hofifman  v.  Bloomburg  &c.  R.  Co..  i  Washburn  v.   Milwaukee   &c.  R. 

143  Pa.  St.  503,  22  Atl.  823:  Gorgas  Co.,    59    Wis.    364,    18    N.    \\\   328: 

V.   Philadelphia  &c.  R.   Co.,   144  Pa.  Peoria   Gaslight   &c.   Co.   v.   Peoria 

St.    1.    22    Atl.    715;    W'ashburn    v.  &c.    R.    Co..    146   Til.   i72.  34   N.    E. 

Milwaukee     &c.     R.     Co..    59    W^is.  550,  21    L.   R.  A.  ?,7:^\    Chicago   &c. 

364,    18    N.    W'.    328;    Munkwitz    v.  R.    Co.    v.    Parsons,    51    Kans.    408, 

Chicago    &c.    R.    Co.,   64   Wis.   403.  ?>2  Pac.   1083;   Hoffman  v.   Blooms- 

25   N.  W.  438;   Seefeld  v.   Chicago  burg   &c.    R.   Co.,    143    Pa.    St.    503. 

&c.   R.   Co.,  67  Wis,  96.  29   N.  W.  22   Atl.  823;    Seattle   &c.   R.   Co.  v. 

904.      See    Chicago    &c.    R.    Co.    v.  Roeder,  30  Wash.  244.  70  Pac.  498. 

Parsons.     51     Kans.     408,    2,2     Pac.  94  \m.   St.  864.     .\n   award,  which 

1083:     Topcka     v.     Martinoau.     42  is  clearly  against  the  evidence,  will 

Kans.  387.  22    Pac.  419.   5   E.   R.  A.  be   set  aside.     Fitchburg  R.   Co.  v. 

775;  Seefeld  v.  Chicago  &c.  R.  Co..  Eastern    R.    Co.,    6    Allen    (Mass.) 

67  Wis.   96,  29   N.  W.  904.  98:  Wilson  v.  Rockford  &c.  R.  Co.. 

'■'■'  Toledo   &c.    R.   Co.  V.   Dunlap.  59  111.  273.     But  an  award  will  not, 

47  Mich.  456,   11    N.  W.  271:   Remy  as   a   rule,   be   set   aside   where   the 

V.    Municipality.    12    Ea.    .Ann.    500;  evidence    is    conflicting.      Western 

Newell  V.   E.^eb.  77  Wash.  182,  137  cS:c.    R.    Co.    v.    Reed,   35    Cal.    621; 

Pac.   811.      See    Illinois   &c.    R.   Co.  Virginia    &c.'    R.    Co.    v.    Henry,    8 

V.  Humiston.  208  Til.  100.  69  N.  E.  Nev.   165:   McRcynoIds  v.  Burling- 

880:  Groves  &c.  R.  Co.  v.  Herman.  ton  &c.  R.  Co..  106  111.  152:  Omaha 

206   HI.   34,  69    N.    E.   36;    Kicrnan  &c.    R.    Co.    v.    Walker,    17    Xebr. 

V.  Chicago  &c.  R.  Co.,  123  Til.  188.  432.  23  N.  \N .  348. 
14  N.  E.  18;  Petzel  v.  Chicag<i  &c. 


^  1387 


KAir.KOADS 


996 


souj,'ht  to  l)e  c(.n(k'innc<l  in  charj^e  of  a  sworn  bailiff  is  strictly 
construed  and  it  is  iu-ld  error  to  appoint  guides  to  aid  the  jury.'- 

§  1337  (1040a).  Instructions. — The  rules  relating  to  instruc- 
tions to  juries  are  generally  the  same  here  as  elsewhere.  The 
instructions  must  be  confined  to  the  issues  involved  and  should 
not  call  the  attention  of  the  jury  to  outside  matters.''  Thus,  it 
has  been  held  that  a  reference  should  not  be  made  in  the  in- 
.struction  to  the  fact  that  the  land  was  being  taken  against  the 
will  of  the  owner.'  They  must  be  a])plicable  to  the  evidence 
adduced,''  and  must  not  be  upon  the  weight  to  be  attached  to 
the  evidence — since  this  latter  matter  is  one  solely  for  the  jury.*' 
Neither  should  questions  of  law  be  sul)mittcd  to  the  jury,  since 
these  are  questions  for  the  com-t."     Instructions  having  a  tend- 


-  Colorado  l-'nel  &c.  Co.  v.  Four 
Mile  R.  Co.,  29  Colo.  90.  66  Pac. 
902. 

3  Chicago  &c.  R.  Co.  v.  Atter- 
Iniry,  156  111.  281,  40  N.  E.  826; 
Chicago  &c.  R.  Co.  v.  Patterson, 
26  Incl.  App.  295,  59  N.  E.  688: 
Chicago  &c.  R.  Co.  v.  Winslow,  27 
Ind.  App.  316.  60  N.  E.  466.  Where 
the  .statute  does  not  require  the 
court  to  instruct  appraisers  it  is 
held  that  the  refusal  to  give  rc- 
fjuested  instructions  to  them  is  not 
reversible  error.  Bedford  &c.  Co. 
v.  Chicago  &c.  R.  Co.,  175  Ind. 
M)i,  94  N.  E.  326. 

•'  Illinois  &c.  R.  Co.  v.  Easter- 
brook.  211  111.  624,  71  N.  E.  1116. 

^  Chicago  &c.  R.  Co.  v.  Cospcr. 
43  Kans.  261,  22  Pac.  634;  Fitz  v. 
Xantasket  Beach  R.  Co..  148  Mass. 
35.  18  N.  E.  592.  An  instruction 
that  if  the  jury  believed,  from  all 
*hc  evidence,  that  they  had,  from 
personal  examination  of  the  prem- 
ises, arrived  at  a  more  accurate 
judgment  of  the  value  and  dam- 
ages  than    was    shown   hv   tlic   evi- 


dence, thc}'  might  determine  the 
value  and  damages  at  an  amount 
approved  by  their  judgment  formed 
from  the  personal  examination, 
though  it  might  differ  ffom  the 
amount  testified  to  was  not  objec- 
ti<)nahle  as  authorizing  the  jury  to 
fix  the  compensation  without  re- 
gard to  the  testimonj'.  Guyer  v. 
Davenport  &c.  R.  Co..  196  111.  370. 
63  N.   E.   732. 

6  Cleveland  &c.  R.  Co.  v.  Pole- 
cat Drainage  Dist..  213  111.  83,  72 
X.  E.  684.  Where  a  witness  as  tc) 
value  has  given  his  opinion,  and 
lias  also  stated  that  he  would  give 
the  price  named  for  the  property, 
an  instruction  leaving  the  impres- 
sion upon  the  jury  that  thc  esti- 
mate of  the  witness  was  entitled 
to  great  weight  because  of  his  ap- 
parent willingness  to  purchase  is 
error.  Friday  v.  Pennsylvania  R. 
Co..  204  Pa.  St.  405.  54  Atl.  339. 

"  Trotier  v.  St.  Louis  &c.  R.  Co., 
180  111.  471,  54  N.  E.  487:  Elgin 
&c.  R.  Co.  V.  Fletcher,  128  III.  619, 
21    N.  E.  577. 


997 


PROCEDT'KE   IN   APPROl'KI AT lOX    CASES 


§  1337 


ency  to  mislead  the  jury  slunild  nut  be  given. ^  An  instruction 
should  not  be  argumentative.  An  instruction  held  objectionable 
on  this  ground  told  the  jury  that  they  should  not  assess  dam- 
ages on  the  basis  of  what  the  owner  would  take  for  his  prop- 
erty, or  for  what  sum  he  or  they  would  l)e  willing  to  let  the 
railroad  go  across  the  lands,  l)ut  must  keep  in  mind  the  actual 
fair  cash  market  value  as  the  only  proper  element  of  damage; 
and  that  it  was  the  jury's  duty  to  try  the  case  fairly,  and  render 
a  verdict  on  a  fair  consideration  of  the  evidence,  even  though 
the  manner  in  which  the  lands  will  be  cut  up  might  excite  their 
sympathy.'^  An  instruction  already  given  in  substance  and  with 
sufficient  fullness  need  not  be  i'epeated.^''  Thus,  where  the  court 
has  properly  and  fully  charged  the  jury  as  to  the  elements  and 
measure  of  damages  it  is  not  error  to  refuse  a  charge  that  the 
jury  should  not  take  into  consideration  any  speculative  uses  of 
the  lands  taken  or  those  not  taken. ^'  The  court  should  not 
express  an  opinion  as  to  the  amount  of  damages  to  be  awarded, 
as  that  would  amount  to  an  invasion  of  the  province  of  the 
jury.^-  Legal  terms  used  in  the  instructions  should  be  explained 
to  the  jury.^=^  Instructions  are  generally  regarded  as  sufficient 
if  construed  together  they  present  proper  rules  for  the  guidance 
of  the  jury.^* 


s  Fifer  v.  Ritter,  159  Ind.  8,  64 
N.  E.  463;  Chicago  &c.  R.  Co.  v. 
Goff,  158  Til.  453,  41  N.  E.  1112; 
Guyer  v.  Davenport  &c.  R.  Co., 
196  111.  370,  63  N.  E.  112. 

9  Jacksonville  &c.  R.  Co.  v.  Wil- 
hite,  209  III.  84,  70  N.  E.  583. 

10  Centralia  &c.  R.  Co.  v.  Rix- 
man,  121  III.  214,  12  N.  E.  685; 
Chicago  &c.  R.  Co.  v.  Patterson, 
26  Ind.  App.  295,  59  N.  E.  688; 
Kansas  City  R.  Co.  v.  ^IcElroy, 
161  Mo.  584,  61  S.  W.  871. 

11  Seattle  &c.  R.  Co.  v.  Roeder. 
30  Wash.  244,  70  Pac.  498.  94  Am. 
St.  864. 

12  Weyer  v.  Chicago  &c.  R.  Co., 
68  Wis.  180,  31  N.  W.  710;  Schuyl- 


kill &c.  R.  Co.  V.  Stocker,  128  Pa. 
St.  233,  18  Atl.  399. 

13  Kansas  City  &c.  R.  Co.  v. 
Dawley,  50  Mo.  App.  480  (conse- 
quential damages).  It  is  not  er- 
roneous to  instruct  the  jury  to 
assess  damages  according  to  the 
"cash  market  value,"  instead  of  the 
"fair  cash  market  value,"  for  the 
two  terms  are  substantially  syn- 
onymous. Conness  v.  Indiana  &c. 
R.  Co.,  193  III.  464,  62  N.  E.  221. 

1^  Cook  V.  Chicago  &c.  R.  Co., 
83  Iowa  278,  49  N.  W.  92;  Detroit 
&c.  R.  Co.  V.  Hall,  133  Mich.  302. 
94  N.  W.  1066;  Diamond  &c. 
Steamers  v.  Davenport  &c.  R.  Co., 
115  Iowa  480,  88  N.  W.  959;  Union 


1338 


RAILROADS 


99;! 


§  1338  (1041).  Report  of  commissioners. —  In  many  of  tht 
.states  the  re]H)rt  must  be  confirmed  l)y  the  court  by  which  the 
commissioners  were  appointed,^^  and  it  has  been  held  that  even 
ihouijh  the  statute  does  not  expressly  so  provide,  the  report  of 
a  tribunal  appointed  by  a  court  in  proceedings  under  the  right 
of  eminent  domain,  may  be  accepted  or  rejected  by  the  court, 
as  justice  may  require."'  A  report  may  be  set  aside  for  fraud 
or   misconduct  of   the  commissioners,   even   though   the    statute 


Traction  Co.  v.  Pfcil,  39  Ind.  App. 
51,  78  N.  E.  1052.  See  also  as  to 
instructions,  Wiegand  v.  Siddons, 
41  App.  D.  C.  130;  Central  Geor- 
gia &c.  Co.  V.  Cornwell,  141  Ga. 
643,  81  S.  E.  882;  Peoria  &c.  Trac- 
tion Co.  V.  Vance,  225  111.  270,  80 
X.  E.  134;  Bray  v.  Tardy,  182  Ind. 
98.  105  N.  E.  772  (as  to  opinion  of 
witnesses  on  value);  Hubbcll  v. 
Des  Moines,  166  Iowa  581.  147  N. 
W.  908  (as  to  meaning  of  market 
value);  David  v.  Louisville  &c.  R. 
Co.,  158  Ky.  721.  166  S.  W.  230; 
.American  &c.  Co.  v.  St.  Louis  &c. 
R.  Co.,  202  Mo.  656.  101  S.  W. 
576;  Newell  v.  Loeb.  11  Wash.  182. 
137  Pac.  811. 

ii  Where  c<>ntirmali(in  of  the  re- 
port was  not  asked  until  three 
years  after  it  was  made,  the  court 
refused  to  confirm  it  and  held  it 
to  be  invalid.  Stearns  v.  Deerfield, 
51  N.  H.  Z12.  Where  several  tracts 
of  lands  owned  by  different  per 
sons  are  included  in  one  proceed- 
ing un<ler  a  statute  permitting  it 
damages  should  be  assessed  to  each 
owner,  and  it  is  erroneous  to 
award  damages  in  gross  and  di- 
rect payment  to  treasurer  to  be 
distributed.  Convers  v.  Atchison 
&c.  R.  Co.,  142  U.  S.  671,  12  Sup. 
Ct.  351.  35  L.  ed.  1153.  Citing 
P>r)wman   v.   \'enice   &c.   R.    Co.,  102 


III.  459;  Johnson  v.  I'recport  &c. 
R.  Co.,  116  111.  521,  6  N.  E..211; 
^uver  V.  Chicago  &c.  R.  Co.,  123 
111.  293,  14  N.  E.  12. 

^''llingham  &c.  Turnp.  Co.  v. 
Norfolk  Co..  6  Allen  (Mass.)  353; 
Pueblo  &c.  R.  Co.  V.  Rudd,  5  Colo. 
270;  State  v.  MacDonald,  26  Minn. 
445.  4  N.  W.  1107;  Troy  &c.  R.  Co. 
V.  Northern  Turnp.  Co.,  16  Barb. 
(N.  Y.)  100;  Bennct  v.  Camden 
&c.  R.  Co.,  14  N.  J.  L.  145.  Where 
the  tribunal  jjrocceded  upon  er- 
roneous principles  the  report 
should  be  set  aside.  New  York 
&c.  R.  Co..  Matter  of,  2>Z  Hun 
639.  98  N.  Y.  447,  102  N.  Y.  704; 
\'an  Wick  I  e  v.  Camden  &c.  R.  Co.. 
14  N.  J.  L.  162;  Swayze  v.  New 
Jersey  ^lidland  R.  Co.,  Zd  N.  J.  L. 
295;  Beckett  v.  Midland  R.  Co., 
I..  R.  1  C.  P.  241.  If  the  damages 
awarded  are  so  grossly  excessive 
or  so  palpably  inadequate  as  to 
lead  to  the  irresistible  conclusion 
that  the  commissioners  or  the  jury 
were  swayed  by  prejudice  or  pas- 
sion the  award  w^ill  be  set  aside. 
Van  Wickle  v.  Camden  &c.  R.  Co., 
14  N.  J.  L.  162;  Mutual  Union  Tel. 
Co.  V.  Katkamp.  103  III.  420;  New 
Orleans  &c.  R.  Co.  v.  Zeringue,  23 
La.  Ann.  52'1 :  Rheiner  v.  Still 
water  R.  &c.  Co.,  29  Minn.  147.12 
X.  \\',  449;  Kansas  City  &c.   R.  Co. 


099                        PROCP:DrHi;  i.\  aim'roi'Hiatio.v  cases  §  138S 

provides  th;it  it  shrill  be  final  and  C(»nclusive.'"  The  report  of 
the  commissioners  must  he  in  writin.^".  and  in  some  states  should 
set  forth  facts  showing  their  jurisdiction  of  the  matter  to  which 
their   tindinsf  relates. ^^     The   report   should,   of  course,   be   dul\' 

V.   Campbell,  62   Md.   585:   Comniis-  240.     And   it  is  frec|ucntly   said  that 

^loners   of  Central    I'ark,    In   re.   51  conrts  will  not  disturb  the  findings 

Barb.   (N.  Y.)  277;  In  re  161st  St..  of   the    commissioners    unless   they 

159    App.    Div.    662,    144    N.    Y.    S.  appear  to  have  acted  arbitrarily  or 

717   (but  not  unless  grossly  exces-  on    a    fundamentally    wrong    basis, 

sive    or    inadeciuate    nor    ordinarily  In    re    Eighth    Ave..    77  Wash.   570, 

for    error    in    excluding    cvidenceV.  138   Pac.   10. 

Clarksville  &c.  Turnp.  Co.  v.  .\t  '' Central  Pacific  R.  Co.  v.  Pear- 
kinson,  1  Sneed  (Tcnn.)  426.  See  son.  35  Cal.247;  Thompson  v.  Con- 
Houston  &c.  R.  Cn.  V.  Milburn.  34  way.  53  N.  H.  622;  New  York  &c. 
Tex.  224.  But  ordinarily  the  tes-  R.  Co.,  In  re,  5  Hun  (N.  Y.)  105: 
timonj^  of  witnesses  called  to  im-  Prospect  Park  &c.  R.  Co.,  In  re, 
peach  the  report  as  to  the  value  24  Hun  (N.  Y.)  199;  Buffalo  &c. 
of  the  property  should  be  given  R.  Co.,  Matter  of.  32  Hun  (N.  Y.) 
less  weight  than  the  official  report  289:  New  York  &c.  R.  Co.,  In  re, 
of  the  commissioners.  Eastern  R.  64  N.  Y.  60.  See  Staten  Island  R. 
Co.   v.   Concord    &c.   R.    Co..   47   N.  Co..    In    re,    41    Hun    (N.    Y.)    392. 

II.  108.  And  where  the  evidence  104  N.  Y.  680;  In  re  Harmon  etc. 
is  conflicting  the  award  will  not  Sts„  146  N.  Y.  S.  297:  Rock  Island 
be  disturbed  if  any  portion  of  it  &c.  R.  Co.  v,  Leisj'  &c.  Co..  174 
taken  alone  would  sustain  the  ver-  111.  547.  51  N.  E.  572;  Kansas  City 
diet.  Kansas  v.  Kansas  City  &c.  &c.  R.  Co.  v.  Smith.  51  La.  Ann. 
R.  Co.,  84  Mo.  410;  Texas  &c.  R  1079,  25  So.  955;  Chapin,  Matter 
Co.  V.  Eddy,  42  Ark.  527;  Little  of,  84  Hun  (N.  Y.)  490.  32  N.  Y. 
Rock  Junction  R.  Co.  v.  Woodruff.  S.  361.  It  is  held  that  it  is  not 
49  Ark.  381,  5  S.  W.  792.  4  Ain.  St.  illegal  for  commissioners  to  make 
51;  Western  Pac.  R.  Co.  v.  Reed,  an  agreement  with  the  company 
35  Cal.  621;  Selma  &c.  R.  Co.  v.  whose  duty  it  is  to  pay  for  the 
Gammage,  63  Ga.  604;  Illinois  &c.  services  of  commissioners  for  a 
R.  Co.  V.  Von  Horn.  18  III.  257;  fair  compensation.  State  v.  Dover 
Chicago    &c.   R.    Co.   v.    Flake,    116  &c.  R.  Co.,  43  N.  J.  L.  528,  14  Am. 

III.  163,  4  N.  E.  488;  Kyle  v.  :\Iiller.  &  Eng.  R.  Cas.  87.  But  we  sup- 
108  Ind.  90,  8  N.  E.  721;  Colvill  v.  pose  that  such  an  agreement  is  to 
St.  Paul  &c.  R.  Co.,  19  ^Nlinn.  283;  be  carefully  scrutinized  and  that  it 
Hastings  &c.  R.  Co.  v.  Ingalls.  15  must  be  shown  to  be  entirely  fair 
Nebr.   123,   16  N.  W.  762;  Virginia  and  reasonable. 

&c.   R.   Co.  v.    Elliott,   5   Nev.  358;  ^^  State    v.    Yanger,   29    N.    J.    L. 

Railroad  Co.  v.  Gesner,  20  Pa.  St  384. 


§  1338 


RAILROADS 


1000 


signed.'"  The  j)roperty  sought  to  l)e  ai)propriatecl  should  l)e 
described  with  reasonable  certainty.-"  It  may  be  said  generally 
that  matters  required  by  the  statute  to  be  set  forth  must  appear 
in  the  report,^^  and  that  a  failure  to  find  upon  any  question  which 


1^  Quayle  v.  Missouri  &c.  R.  Co., 
63  Mo.  465;  Rochester  &c.  R.  Co. 
V.  Beckwith,  10  How.  Pr.  (N.  Y.) 
168.  In  Hanes  v.  North  Carolina 
&c.  R.  Co.,  109  N.  Car.  409,  13 
S.  E.  896,  it  was  held  that  a  pro- 
vision requiring  the  report  to  be 
under  seal  was  merely  directory. 

20  Hunt  V.  Smith,  9  Kans.  137; 
Smith  V.  Connelly's  Heirs,  1  T.  B. 
Mon.  (Ky.)  58;  Morgan's  Appeal, 
39  Mich.  675;  Missouri  &c.  R.  Co. 
V.  Carter,  85  Mo.  448,  28  Am.  & 
Eng.  R.  Cas.  249;  Kansas  City 
&-C.  R.  Co.  V.  Story,  96  :\rn.  611, 
10  S.  W.  203;  Cory  v.  Chicago  &c. 
R.  Co.,  100  Mo.  282.  13  S.  W.  346; 
Chicago  &c.  R.  Co.  v.  Randolph 
&c.  Co..  103  Mo.  451,  15  S.  W.  437: 
St.  Louis  &c.  R.  Co.  V.  Fowler, 
113  Mo.  458,  20  S.  W.  1069;  North- 
ern &c.  R.  Co.  V.  Concord  &c.  R. 
Co..  27  N.  II.  183;  State  v.  Hudson 
&c.  R.  Co.,  38  N.  J.  L.  548;  New 
York  &c.  R.  Co.,  Matter  of,  21 
How.  Pr.  (N.  Y.)  434;  Strang  v. 
Beloit  &c.  R.  Co.,  16  Wis.  635. 
See  also  Reitenbaugh  v.  Chester 
Valley  R.  Co.,  21  Pa.  St.  100;  New 
Jcrscj'  &c.  R.  Co.  V.  Suydam,  17 
X.  J.  L.  25.  Where  the  statute  re- 
quired the  report  to  contain  a  de- 
scription of  the  property,  such  a 
description  is  indispensable.  Vail 
V.  Morris  &c.  R.  Co..  21  N.  J.  L. 
189;  Missouri  Pac.  R.  Co.  v.  Car- 
ter, 85  Mo.  448;  Chesapeake  &c. 
Canal  Co.  v.  Union  Bank,  4  Cranch 
C.   C.  75.     A   description  of  a  cer- 


tnin  number  of  feet  on  each  side 
of  the  center  line  of  a  railroad,  as 
located,  staked,  and  marked,  was 
held  sufficient.  Lower  v.  Chicago 
&c.  R.  Co.,  59  Iowa  563,  13  N.  W. 
718.  The  quantity  of  land  is  suffi- 
ciently shown  by  stating  the  di- 
mensions, so  that  the  quantit}'  can 
be  computed.  Pennsylvania  R.  Co. 
V.  Bruner,  55  Pa.  St.  318.  The  de- 
scription must  be  such  that  a  per- 
son conversant  with  such  matters 
can  locate  the  part  taken  or  it  will 
be  void  for  uncertainty.  But  it  is 
sufficient  if  the  description  can  be 
gathered  from  the  whole  report. 
Northern  R.  Co.  v.  Concord  &c. 
R.  Co.,  27  N.  H.  183;  St.  Paul  &c. 
R.  Co.  v.  Matthews,  16  Minn.  341. 
It  has  been  held  sufficient  to  refer 
to  a  description  in  the  warrant  or 
petition.  Ohio  River  R.  Co.  v. 
Harness.  24  W.  Va.  511;  Chesa- 
peake &c.  Canal  Co.  v.  Binney,  4 
Cranch   C.   C.  68. 

-^  Ccntrnl  Pacific  R.  Co.  v.  Pear- 
son, 35  Cal.  247;  Leavenworth  &c. 
R.  Co.  V.  Meyer,  50  Kans.  25,  31 
Pac.  700;  Pierce  v.  County  Comrs.. 
63  Maine  252;  Missouri  Pac.  R.  Co. 
V.  Carter,  85  Mo.  448;  O'Hara  v. 
Pennsylvania  R.  Co.,  25  Pa.  St. 
445;  Lewis  v.  St.  Paul  &c.  R.  Co., 
5  S.  Dak.  148,  58  N.  W.  580,  57 
Am.  &  Eng.  R.  Cas.  612;  Parker 
V.  Fort  Worth  &c.  R.  Co.,  84  Tex. 
333,  19  S.  W.  518.  See  Omaha  &c. 
R.  Co.  V.  Menk,  4  Nebr.  21. 


1001 


PROCEDURE  IN   APPR(3PRIATION   CASES 


§1338 


the  statute  requires  the  commissioners  to  pass  upon  is  usually 
sufficient  ground  for  setting  the  report  aside;""  but  if  no  objec- 
tion or  motion  is  made  to  set  aside  the  re])ort.  such  an  omission 
mav  ])e  regarded  as  a  mere  irregularity  not  sufficient  to  defeat 
or  require  the  proceedings  to  be  dismissed.-^  Where  several 
pieces  of  property  are  taken  or  damaged,  or  the  interests  of 
several  owners  are  separately  affected,  the  report  should  con- 
tain an  explicit  finding  as  to  each  tract  and  each  party."  award- 
ing damages  to  each  owner  by  name.-""'  But  where  several  per- 
sons have  joint  interests  in  one  tract,  a  single  award  may  be 
made  covering  the  interest  of  all.-*'     Objections  to  the  report 


22  Martin  v.  Rushton,  42  Ala. 
289;  Damrcl!  v.  Board  of  Super- 
visors. 40  Cal.  154;  Pueblo  &c.  R. 
Co.  V.  Rudd,  5  Colo.  270;  Bryant 
V.  Glidden,  36  Maine  36;  New  York 
&c.  R.  Co.,  Matter  of,  35  Hun  (N. 
Y.)  232;  Philadelphia  &c.  R.  Co. 
V.   Cake.  95   Pa.  St.  139. 

23  Pittsburgh  &c.  R.  Co.  v.  Wol- 
cott,  162  Tnd.  399,  69  N.  E.  451. 
See  also  State  v.  Parker,  53  N.  J. 
L.  183.  20  Atl.  1074;  Gillett  v.  Mc- 
Gonigal.  80  Wis.  158,  49  N.  W.  814. 

2*  Chicago  &c.  R.  Co.  v.  San- 
ford.  23  Mich.  418:  Fitzpatrick  v. 
Pennsylvania  R.  Co..  10  Phila. 
(Pa.)  107;  Dolphin  v.  Pedley,  27 
Wis.  469;  Sharp  v.  Johnson.  4  Hill 
(N.  Y.)  92,  40  Am.  Dec.  259.  Where 
the  jury  is  simply  required  to  as- 
certain the  land-owner's  damages, 
a  general  award  is  suPficient.  with- 
out stating  the  items  of  injury. 
iMichigan  &c.  R.  Co.  v.  Barnes,  44 
Mich.  222.  6  N.  W.  651;  Ohio  &c. 
R.  Co.  V.  Wallace.  14  Pa.  St.  245. 
See  Illinois  &c.  R.  Co.  v.  :\Iay- 
rand,  93  111.  591.  A  substantial 
compliance  with  the  statute  as  to 
stating  the  items  of  damages  is 
sufficient   where   they   are   required 


to  be  given.  California  Pac.  R. 
Co.  V.  Frisbie,  41  Cal.  356.  Dam- 
ages should  be  awarded  separately 
for  each  estate  or  interest  in  a 
tract  of  land  in  which  several  per- 
sons hold  distinct  estates.  Harris 
V.  Howes,  75  Maine  436;  Rentz  v. 
Detroit,  48  Mich.  544,  12  N.  W. 
911;  Chesapeake  &c.  Canal  Co.  v. 
Hoye.  2  Grat.  (Va.)  511. 

25  Rusch  V.  Milwaukee  &c.  R. 
Co.,  54  Wis.  136,  11  N.  W.  253: 
Hononstine  v.  Vaughan.  7  Blkf. 
(Tnd.)  520;  State  v.  Brands.  45  N. 
J.  L,  332.  An  award  to  "the  estate 
of  A"  is  bad.  Neal  v.  Knox  &c.  R. 
Co.,  61  Maine  298;  State  v.  Fisher, 
43  N.  J.  L.  377.  See  also  Adam^ 
V.  Rulon,  50  N.  J.  L.  526.  14  Atl. 
881.  Tf  the  name  is  unknown  tlio 
award  should  so  state.  Common- 
wealth v.  Great  Berrington,  6 
:\lass.  492. 

26  Pittsburgh  &c.  R.  Co.  v.  Hall. 
25  Pa.  St.  336:  East  Saginaw  &c. 
R.  Co.  v.  Benham,  28  Mich.  459. 
But  see  Ruppert  v.  Chicago  &c.  R. 
Co.,  43  Towa  490.  A  single  owner 
of  several  lots  or  tracts  of  land 
may  be  awarded  damages  in  gross 
for  all.     Sherwood  v.  St.  Paul  &c. 


§1338                                                   RAILROADS  1002 

which    (h)   not   i4()   to   the   jurisdiction    of    the    trilnmal.   may   be 

\\ai\ecl.  and  a   failure  to  offer  such   objections  at  the  time  and 

in  the  manner-'  prescril)ed  l)y  statute  is  such  a  waiver.  Objec- 
tions for  lack  of  jurisdiction.  ho\ve\er.  may  _i>enerall}'  be  made 
at  an\-  time.-"* 

R.  Co..  21  Minn.  122:  Kankakee  awarded  is  a  waiver  of  irn-jiulari- 
&c.  R.  Co.  V.  Chester,  62  111.  235.  ties  and  defects  in  tlie  proceed- 
In  some  states,  it  is  held  that  the  ings.  Quincj'  &c.  R.  Co.  v.  Kel- 
interests  of  tenants  in  common  hiRR.  54  ;\Io.  334;  Troj^  &c.  R.  Co. 
slionid  be  assessed  at  a  gross  snm.  v.  Potter.  42  Vt.  265.  1  Am.  Rep. 
Southern  Pac.  R.  Co.  v.  Wilson,  325:  Kile  v.  Yellowhead.  80  111. 
49  Cal.  396:  Chicago  ^-c.  K.  Co.  v.  208:  Karber  v.  Nellis,  22  Wis.  215: 
1  hirst,  30  Iowa  73.  V>y  the  stat-  Ifawlcy  v.  liarrall.  19  Conn.  142. 
iites  of  some  states,  tenants  in  The  occupation  by  the  corporation 
common  are  allowed  to  proceed  of  the  land  condemned  estops  it  to 
either  jointly  or  severally  to  re-  object  to  the  validity  of  the  pro 
cover  damages  for  injuries  done  to  ceedings.  Wilmington  &-c.  R.  Co. 
their  real  estate.  Hibbard  v.  Fos-  v.  Condon.  8  (nil.  &  J.  (Md.)  443. 
ter.  24  Vt.  542:  Webber  v.  Merrill.  And  the  payment  of  the  damages 
34  X.  ][.  202;  ITobbs  v.  Hatch,  48  aw.irded  has  been  held  to  estop 
.Maine  55.  the  corporation  to  object  to  the 
-"  .Application  of  Cooper  Sec,  re))ort  or  the  proceedings.  IMar 
Matter  of.  93  X.  Y.  507:  Chesa-  c|uette  &c.  R.  Co.  v.  Probate  Judge, 
peake  &c.  R.  Co.  v.  Pack,  6  W.  S3  .Mich.  217,  18  X.  W.  788.  The 
Va.  397:  Thayer  v.  Burger.  100  fact  that  the  commissioner's  report 
Tnd.  262:  Morgan  Civil  Township  understated  the  amount  of  land 
V.  ?Tunt.  104  Tnd.  590.  4  X.  K.  299;  taken  by  a  fraction  of  an  acre  w.i-; 
Clear  Lake  Water  Co.,  Matter  of.  held  not  to  invalidate  their  report. 
48  Cal.  586.  Sec  also  Rr\'ant  v.  where  damages  were  assessed  for 
Kno.x  &c.  R.  Co.,  61  Maine  300;  injuries  to  the  whole  tract.  Mor- 
Mattheis  v.  Fremont  &c.  R.  Co..  gan  v.  Chicago  &c.  R.  Co..  39  [Mich. 
.53    Xebr.    681.    74    X.    W.    30;    One  675. 

Hundred    and    Si.xty-Third    St..    In  -"^Wilkinson   v.   Mayo.   3    Hen.    & 

re,    131    X.    V.    569.    30    X.    F.    66.  Mnn.  (Va.)  565:  Hughes  v.  Sellers. 

Where  the  parties  agree  to  a  con-  34   Ind.  337.     Upim   motion  to  con- 

firmatir)n    of  the   report  before    the  hrni  the  commissioners'  report,  the 

exi)iration   of  the   time  allowed   for  suiireme    court    of    Xew    York    has 

filing  objections,   they  will  be  con-  t^ower    to    set    aside    a    default    en- 

sidcred  as  having  waived   all   right  tcred    ;it    the    hearing   before    com- 

to  afterward  ofTer  objections.     Ken-  missioners  and  order  a  new  hear- 

sington    &c.   Turnp.    Co.,   Tn   re.   97  ing    for    any    sufiicient    cause     for 

T'a.    St.    260.      The    acceptance    by  which     the     commissioners     might 

the  property  owner  of  the  damages  have  set  the  default  aside.     Tn  the 


1003 


PROCEDITRE  IN   APPK(^PKIATION    CASES 


§1339 


§  1339  (1042).  Report  of  commissioners — Requisites  of — Il- 
lustrative cases. — The  rcpt)rt.  award  or  xerdict  should  he  rea- 
sonal^ly  certain  and  expHcit  in  its  statements  of  what  was  done 
and  decided,-'-'  that  is.  it  should  state  all  material  matters  with 
such  certainty  as  will  enal)le  the  parties  to  fully  understand  the 
decision,  hut  it  is  not  necessary  to  state  all  that  was  done  in 
full  detail.  It  is  not  necessary,  unless  required  hy  statute,  to 
Itemize  the  damag-es.'^"  Wliere  the  matter  of  the  liability  for 
the  expenses  of  a  crossing  is  fixed  by  statute  the  commissioners 
have  no  i)ower  to  determine  which  of  the  companies  is  to  bear 
the  expense."^     The  report  should  show  that  the  connnissioners 


matter  of  New  York  &c.  R.  Co., 
93  N.  Y.  385.  The  commissioners 
have  no  authority  to  condemn 
land  not  covered  by  the  descrip- 
tion in  tlie  petition,  and  an  assess- 
ment of  damaj^es  for  land  not  em- 
braced in  such  description  is  void 
for  lack  of  jurisdiction.  Spofford 
V.  Bucksport  &c.  R.  Co..  66  Maine 
26.  Proceedings  were  had  to  con- 
demn land,  which  were  regular 
except  that  the  commissioners 
awarded  a  gross  sum  to  all  of  six 
lot  owners  who  held  in  severaltj', 
without  specifying  the  sum  to 
which  each  was  entitled.  The 
company  paid  the  money  into 
court,  and  nothing  further  was 
done  in  the  proceeding.  It  was 
held  that  the  condemnation  pro- 
ceeding being  ended,  so  that  it 
was  no  longer  possible  to  correct 
it  at  the  instance  of  either  party. 
it  nnist  he  held  to  be  void  and 
wholly  without  effect  unon  the 
rights  of  either  party.  Rusch  v. 
ATilwaukce  &-c.  R.  Co..  54  Wis. 
136.  11    X.  W.  253. 

''■^  Reitenl^augh  v.  Chester  X'alley 
R.  Co..  21  Pa.  St.  100:  Connecticut 
River  R.  Co.  v.  Clapp,  1  Cush. 
(Mass.)    559.      See    Illinois    &c.    R. 


Co.  v.  -Ahiryland,  93  111.  591;  Con- 
necticut &c.  R.  Co.  V.  Clapp,  1 
Cush.    (Mass.)    559. 

-'"' American  &c.  R.  Co.  v.  Hunt- 
ington &c.  R.  Co.,  130  Ind.  98,  29 
N.  E.  566:  Michigan  &c.  R.  Co.  v. 
Barnes,  44  .Mich.  222,  6  N.  W.  651: 
Port  Huron  &c.  R.  Co.  v.  Voor- 
heis,  50  Mich.  506,  15  N.  W.  882: 
Flint  &c.  R.  Co.  V.  Detroit  &c.  R. 
Co.,  64  ^lich,  350,  31  N.  W.  281: 
Packard  v.  Bergen  &c.  Co.,  54  N. 
T.  L.  553.  25  Atl.  506:  Campbell, 
Matter  of,  1  N.  Y.  S.  768:  Wil- 
inington  &c.  R.  Co.  v.  Smith.  99 
N.  Car.  131,  5  S.  E.  237.  But  there 
may  be  cases  where  items  should 
be  separately  stated.  Chesapeake 
iS'c.  R.  Co.  V.  Hoye.  2  Grat.  (Va.) 
511;  Sanford  v.  Chicago  &c.  R. 
Co..  2  ^fich.  N.  P.  132  (Supp.). 
.See  generally  Sherwood  v.  St.  Paul 
f^.-c.  R.  Co.,  21  Minn.  127:  Albany 
^'-c.  R.  Co.  V.  Dayton.  10  Abb.  Pr 
(N.  Y.)  N.  S.  182:  Pittsburgh  &c. 
R.  Co.  V.  Hall.  25  Pa.  St.  336: 
Pennsylvania  R.  Co.  v.  Bruner,  55 
Pa.  St.  318. 

^1  Wabash  R.  Co.  v.  Ft.  Wayne 
f^-c.  Traction  Co.,  161  Ind.  295,  67 
N.  E.  674. 


J;  1339  KAii.KOAns  1004 

met  at  the  appointed  time  and  place.''-  An  award,  report  or 
\erdic.t  in  the  alternative  or  upon  condition  is  insufficient.'"  The 
commissioners  or  jury  have  no  authority  to  award  damages  in 
rinvthing  else  than  mone}.''*  If  the  question  whether  the  pro- 
posed taking  is  necessary  for  public  use  is  submitted  by  statute 
to  the  commissioners  their  failure  to  find  upon  this  question 
will  make  their  report  inxaiid.^^  Where  the  report  is  silent  as 
to  what  property,  if  any.  will  be  benefited,  there  is  a  presump- 
tii>n  that  there  are  no  benefits  to  be  assessed.-'"  The  finding  must 
be  in  substantial  compliance  with  the  requirements  of  the  stat- 
ute,'"' but  ordinarily  a  literal  com^pliance  is  not  essential,  and  a 
clearh'  immaterial  dc^•iation  will  not  invalidate  the  report.^* 

^-  Central    Pac.    R.    Co.    v.    Pear-  iiigs,  building  fences,   constructing 

son,    35    Cal.    247.      See    also    Vir-  culverts,  etc.,  can  not  be  prescribed 

ginia  &c.  R.  Co.  v.  Lovejoy,  8  Nev.  as   a  partial   compensation  for  the 

100.  land-owner's  damages.    Toledo  &c. 

33  Chesapeake  &c.  R.  Co.  v.  TIal-  R.  Co.  v.  Munson,  57  Mich.  42,  23 

stead.  7  W.  Va.  301;  New  Orleans  N.  W.  455:   Chicago  &c.  R.  Co.  v. 

I'ac.    R.     Co.    V.    Murrell,    34    La.  Melville,    66    111.   329.      See    Hill   v. 

.\nn.    536:    Toledo    &c.    R.    Co.    v.  Mohawk  &c.  R.   Co..  7  N.  Y.  152: 

Munson,  57  Mich.  42,  23  N.  W.  455.  Chesapeake   &c.   R.   Co.  v.   Patton. 

Some   cases   hold   that   the   verdict  6  W.  Va.  147;  Central  Ohio  &c.  R. 

maj'    contain    conditions    requiring  Co.  v.  Holler.  7  Ohio  St.  220. 
the  company  to  remove  buildings.  ^5  gggg  ^r,  Elliott,  105  Tnd.  517.  5 

etc.     Dwight  v.  Springfield,  6  Gray  N.    E.    663:    Mansfield    &c.    R.    Co. 

QTass.)     442:     Omaha     R.     Co.    v.  v.    Clark,   23    Mich.    519;    Truax   v. 

Mcnk,    4    Nebr.    21.      And    others  Sterling.    74    Mich.    160.    41    X.   W, 

hold  that  by  agreement  of  the  par-  885.     Tf  a  finding  is  made  the  court 

tics  a   verdict   imposing  conditions  is    usually    bound    by    such    finding 

may  be  rendered.     Hill  v.  !\Iohawk  and    must    give    judgment    accord- 

R.    Co.,   7   N.    Y.    152;    Central    &c.  ingly.     Wilmington    &c.    R.    Co.  v. 

R.   Co.  v.   Holler.  7  Ohio   St.   220;  Dominguez,  50  Cal.  505. 
Chesapeake  R.  Co.  v.  Patton.  6  W.  3c  Tcrre    Haute     &c.     R.     Co.    v. 

^^^.    147;    Chicago    &c.    R.    Co.    v.  Flora.  29  Tnd.   .\pii.   442.  64  N.   E. 

:\lelville,  66  111.  329.  648. 

3<New  Orleans  Pacific  R.  Co.  v.  37  Hunter    v.    Newport.    5     R.    T. 

Murrell.  34   La.   .\nn.    536;    Chesa-  325:   Cushing  v.   Gay,  23   Maine  9; 

pcake    &c.    R.    Co.    v.    Halstead,    7  McClary     v.     Hartwell,     25     Mich. 

W.    Va.  301:    Pennsylvania    &c.    R.  139. 

Co.   V.   Reichcrt.   58   Md.  261.     The  3s  technical   errors  which  do  not 

performance  of  other   acts   by   the  pre.iudice'  the    substantial    interests 

petitioners,   such  as  making  cross-  of  the  parties  will  be  disregarded. 


1005 


PROCEDURE   IN   AIM'KOI'KI A  TIOX    CASES 


§  1340 


§  1340  (1043).     Time   within   which   report   must   be   made. — 

The  i^Tiural  rule  is- that  if  :i  liuiitcd  tiuic  is  allowed  to  the  com- 
missioners by  statute  in  which  to  make  their  report,  it  must  be 
made  A\ithin  the  time,  or  it  will  be  ineffective. "'^  In  New  Jersey, 
where  the  statute  requires  the  justice  appointing  the  commis- 
sioners to  lix  the  date  for  the  filing  of  their  report,  it  is  held 
that  this  i)rovision  is  mandatory  and  that  an  order  omitting  to 
tix  the  date  is  fatally  defective."*^  It  has  been  held  that  the 
jKirties  can  not  extend  the  time  by  agreement,  but  this  we 
regard  as  a  \  ery  doubtful  decision,  for  we  believe  that  it  is 
competent  for  the  parties  to  agree  to  an  extension  of  time.*^ 
\\'here  the  time  for  tiling  the  re]:)ort  is  fixed  by  the  court,  it 
may  l)e  extended  by  an  order  made  before  the  exp.iration  of  that 
time.^-  The  statutes  of  many  of  the  states  require  the  report 
to  be  recorded  and  it  has  been  held  that  under  such  a  statute 
tlie  report  will  have  no  l)inding  force  until  this  is  done.*^ 


New  York  &c.  Co.,  In  re,  61  Hun 
625,  IS  X.  Y.  S.  909;  Pacific  &c. 
R.  Co.  V.  Porter,  74  Cal.  261,  15 
Pac.  774.  23  Am.  &  Eng.  R.  Cas. 
167:  Hunt  v.  Smith,  9  Kans.  137; 
Detroit  &c.  R.  Co.  V.  Crane,  50 
^rich.  182,  15  N.  W.  73:  Troy  &c. 
R.  Co.  V.  Lee.  13  Barb.  (N.  Y.^ 
169:  New  York  &c.  R.  Co.,  Matter 
of,  27  Hun  (N.  Y.)  116;  Oregon 
&c.  R.  Co.  V.  Bridwell.  11  Ore.  282, 
3  Pac.  684.  Presumption  is  in  fa- 
vor of  discharge  of  duty.  Orange 
&c.  R.  Co.  V.  Craver,  32  Fla.  28. 
13  So.  444;  New  Orleans  &c.  Co. 
V.  Frank.  39  T.a.  Ann.  707.  2  So. 
310.  30  Am.  &  Eng.  R.  Cas.  275. 
But  fraud  or  misconduct  may,  of 
course,  be  shown.  Orange  &C.  v. 
Craver,  32  Fla.  28,  13  So.  444: 
Marquette  &c.  R.  Co.  v.  Probate 
Judge.  53  Aiich.  217.  18  N.  W.  788: 
Ortman  v.  I'nion  &c.  R.  Co.,  32 
Kans.  419.  4  Pac.  858.  17  Am.  & 
Eng.  R.  Cas.  136;  Cadmus  v.  Cen- 
tral &c.  R.  Co..  31  N.  T.  L.  179. 


^^  Anderson  v.  Pemberton,  89 
^fo.  61,  1  S.  W.  216;  Metzler  v. 
Plugde's  Road,  62  Pa.  St.  151;  Clay- 
baugh  V.  Baltimore  &c.  R.  Co.,  108 
Jnd.  262,  9  N.  E.  100. 

■*o  Doughty  V.  Atlantic  City  &c. 
Traction  Co.,  71  N.  J.  i..  131.  58 
Atl.  101. 

"  In   re  Belfast,  53  Maine  431. 

•»2  ^rc:\[u]len  V.  State.  105  Ind. 
334.  4  N.  E.  903.  But  after  the 
time  has  elapsed  the  court  has  no 
authority  to  make  an  order  ex- 
tending the  time  for  filing  the 
commissioners'  report.  Road  in 
Salem  Township,  In  re,  103  Pa.  St. 
250:  Baldwin  and  Snowden  Road. 
3  Grant's  fPa.^  Cas.  62.  Where 
tlie  report  was  left  in  the  proper 
office  within  the  time  limited,  but 
the  officer  failed  to  mark  it  filed. 
it  was  held  to  be  valid.  Reed  v. 
.\cton.  120  Mass.  130. 

^3  Burns  v.  Multnomah  R.  Co.,  8 
Sawver  (U.  S.^  543. 


§1341 


RAILROADS 


1006 


§  1341  (1044).  Objections  to  report. — The  a])i)r()i)ri;ilt'  mode 
of  ohjectiny:  to  a  report  is  by  a  written  motion  or  petition  stating 
;lie  s])ecific  grounds  of  objection.  Where  the  objections  appear 
upon  the  face  of  the  report  there  is  neither  necessity  nor  reason 
:or  resorting  to  extrinsic  evidence.  Objections  based  upon  mat- 
ters not  apparent  upon  the  face  of  the  record  may.  in  most  juris- 
dictions, be  proved  by  affuhivits.''  or  l)y  oral  evidence,"  at  the 
discretion  of  the  court."'     It  has  l)een  held  pro])er  to  receive  the 


^•'  New  Jersey  &c.  R.  Co.  v.  Suy- 
<lam,  17  X.  J.  L.  25;  :Mar(iiiette 
&-C.  R.  Co.  V.  Probate  Judp:e,  53 
Mich.  217,  18  N.  W.  788.  Where 
the  evidence  is  part  of  the  report 
ol)jcctions  may  be  founded  on  the 
evidence.  Western  &c.  R.  Co.  v. 
Reed,  35  Cai.  621.  See  generally 
Washington  &c.  Co.  v.  Switzer,  26 
Grat.  (Va.)  661;  Southern  &c.  R. 
Co.  V.  Wilson,  49  Cal.  396.  Time 
of  objecting  to  report,  sec  Wash- 
ington &c.  R.  Co.  V.  Switzer,  26 
Grat.  (Va.)  661;  Baltimore  &o.  R. 
Co.  V.  Canton  Co.,  70  Md.  405.  17 
.Atl.  394;  Chicago  &c.  R.  Co.  v. 
Eubanks.  32  Mo.  App.  184;  Tracy 
V.  Elizabethtown  &c.  R.  Co.,  80 
Ky.  259;  Harper  v.  Lexington  &c. 
R.'  Co.,  2  Dana  (Ky.)  227:  11  ur- 
lington  &c.  v.  Dobson.  17  Xcbr. 
450.  23  N.  W.  353.  The  olijecti.ms 
must  be  presented  to  the  court 
having  control  of  the  proceedings. 
Rurr  v.  Rucksport  &c.  R.  Co..  64 
Maine  130. 

•»•'■' Clarksvillc  &c.  Turnp.  Cn.  v. 
.■\tkinson.  1  Sneed.  (Tonn.)  425; 
St.  Louis  &c.  R.  Co.  V.  Almeroth. 
62  Mo.  343;  Sullivan  v.  Lafayette 
Co..  61  Miss.  271;  Chesapeake  &c. 
Canal  Co.  v.  Mason,  4  Cranch  C. 
C.  123.  Contra.  Rondout  &c.  R. 
Co.  V.  Field,  38  How.  Pr.  (N.  Y.) 
187.  It  has  been  held  that  affida- 
vits   of    commissioners    are    admis- 


sible ti)  impeach  their  report.  Mar- 
(pu'ttc  &C.  R.  Co.  V.  Probate  Judge, 
53  Mich.  217.  18  N.  W.  788,  14  Am. 
&  Eng.  R.  Cas.  355.  Rut  see  Ro- 
chester &c.  R.  Co.  V.  Reckwith,  10 
How.  Pr.  (N.  Y.)  168.  A  report  is 
generally  held  to  be  prima  facie 
correct  and  the  burden  is  on  the 
party  who  assails  it.  Crawford  v. 
Valley  R.  Co.,  25  Grat.  (Va.)  467. 
■*G  Marquette  &c.  R.  Co.  v.  Pro- 
bate Judge,  53  Mich.  217.  18  N.  W. 
788.  In  a  Pennsylvania  case  the 
fact  that  "since  the  report  of  the 
viewers"  it  had  altered  its  route 
through  the  land  of  some  (if  the 
property-holders  was  held  to  be  no 
ground  for  an  exception  by  the 
company  to  so  much  of  the  report 
as  assessed  damages  to  them,  since 
under  the  Pennsjdvania  statute,  the 
location  of  its  line  by  the  company 
was  an  appropriation  of  the  land; 
and  after  the  assessment  of  the 
damages,  the  right  thereto  was 
vested  in  the  owners,  and  could 
not  be  divested  by  a  subsequent 
change  of  route.  Rcale  v.  Penn- 
sylvania R.  Co.,  86  Pa.  St.  509.  .As 
to  what  evidence  will  authorize  an 
order  setting  aside  a  report  see, 
Coster  v.  New  Jersey  &c.  R.  Co.. 
23  N.  J.  L.  227;  North  Hudson  &c. 
R.  Co.  v.  Rooraem,  28  N.  J.  Eq. 
450.  -,.^^ 


1007  I»R(K'Kl)l"KK    IN    AIM'HOI'HI  A  rioN    CAi^KS  §1342 

;ilii(la\  its  or  testimony  ol  tlic  conimissioiu-rs  cither  to  iniix-ach 
or  su])])ort  tlu'ir  report.''  Exceptions  to  the  award,  under  an 
Indiana  statute,  raise  only  the  question  as  to  the  amount  of 
damas^cs.  l)ut  all  questions  of  damai^'es  may  he  presented  under 
the  ^'eneral  ohjcction  that  the  damaij'es  awarded  are  too  low.'^ 

§  1342  (1045).  Confirmation  or  rejection  of  report — Modifica- 
tion.— The  ruK-  sustained  by  the  wcij^lit  of  authority  is  that  the 
court  must  conlirm  or  reject  the  report  as  a  whole,'*''  hut  under 
some  statutes  it  has  been  held  ])roper  to  amend  or  modilv  the 
re])ort  in  minor  ])articulars.  and  confirm  it  as  amended."'"  or  to 
lecommit  it   for  correction  and  amendment."'      Where  the  pro])- 

*'  .\lar(|iKlto    &c.    R.    Co.   v.    Pro-  Co.   v.    Concord    &c.    R.    Co..  27    X. 

i)ate  JiuIrc.  53  :Mich.  217;  New  Jer-  H.     183:    New    York    &c.    R.    Co.. 

sey  &c.  R.  Co.  v.  Suydam,  17  N.  J.  Matter  of.  64  N.  Y.  60;  New  York 

1..    25:    C.-mal     I'.ank    v.    Albany.    9  &c.    R.    Co.,    Matter    of.    93    N.    Y. 

Wend.      (N.      Y.)      244:      Newport  385.   14   .\m.    I't   Kuix.    R.    Cas.   402: 

Highway.  48  N.  H.  433.  ^fatter  of  Simmons.  141   .\pp.   Div. 

•»«Evansvillc   &c.   R.   Co.   v.   ITcr  MO.   125  X.  Y.  S.  697. 

dink.  174  Tnd.  537.  92  X.  E.  548.  ■"St.    T,onis    v.    Huscli.    252    Mo. 

"Winchester     v.      Hinsdale.     12  209.  158  S.  W^  309  ("clerical  amend- 

Conn.   88:    .Application    for   Widen-  ment):  New  'S'ork  Cent.  &c.  R.  Co., 

injr   RoFrit-nac  Street,  4   Rob.    (ba.)  Matter    ob    35    Tlnn    (X.    Y.)    306: 

357:     Claibfirne    .St..    flatter    of,    4  Florence  &c.  R.  Co.  v.  Pcmber,  45 

ba.   .\nn.   7:    Inhabitants   of  P.rnns-  Kans.   625.  26   Pac.    1.      See   Hanni- 

wick.     AppellaiUs.    37    'Sla'me    446:  bal    RridRC   Co.   v.   Schaubacker.  49 

St.  bonis  &c.  R.  Co.  V.  Richardson.  Mo.    555:    Stockton    &c.    R.    Co.    v. 

45      Mo.      466:      Mississippi      River  Galsiani.     40     Cal.     139;     State     v. 

Bridge    Co.    v.    Ring.    58    Mo.    491:  (iibbs.  44  X.  J.  b.  169;  In  re  Wash- 

:\[issouri    Pacific    R.    Co.   v.    Wern-  ington    St..    19    R.    1.    159.    160,    33 

wag,   35    ^fo.    App.   449:    Rochester  .\tl.   516:   Greenville   S:c.    R.    Co.   v. 

Water    Works     Co.    v.    Wood.    60  Xnnnamakcr.   4   Rich.   b.    (S.   Car.) 

P.arh.     (X.    Y.)     137.    41    How.    Pr.  107. 

53:    Hanes    v.    X'orth    Carolina    R.  ■''  I'ueblo    (."vc.    R.   C'\   v.    Rndd.   5 

C,    109  N.   Car.  490.   13   S.    K.  896:  Colo.    270:     bonisi.ma    Western    R. 

llerr's  :\lill  Road.   14  S.  &  R.  (Pa.)  Co.  v.  Crossman.  Ill   ba.  .\nn.  611. 

204:   Road  in    l'>en/.inger  Townshi]).  35   So.   784:    King's    Co.   El.   R.    Co., 

In   re.    115    I'a.    St.   436.    10   Atl.   35.  In  re.  58  Hun  608.  12  N.  Y.  S.   198. 

See    Central     b.ic.    R.    Co.    v.    Pe.ar-  See     also     Wilco.\     v.     Menden.    57 

son.   35    Cal.   247:    bonisiana   West-  Conn.    120.    17   Atl.   366:    Louisville 

crn    R.    Co.    v.    Crossman.    Ill    La.  &c.   R.   Co.  v.   Po.stal  Tel.   &c.  Co.. 

611.   35    So.    784:    Northern    &c.    R.  o8    Miss.  806.   10   So.  74:   St.   Louis 


1342 


RAILROADS 


lOOS 


crty  of  several  owners  is  included  in  a  single  assessment  of 
damag-es  hut  the  tracts  are  assessed  separately,  it  is  held  that 
the  c(»urt  may  confirm  the  rei)ort  as  to  ])art  of  such  tracts  and 
reject  it  as  to  others."  I'he  practice  u]:)()n  settinsi^  aside  a  com- 
missioner's report  is  governed  hy  the  statute,  and  varies  in  the 
(lifTerent  states.  But  ordinarily  the  re]iort  is  recommitted  to 
the  same  or  to  other  commissioners  for  review  or  correction.^''' 
The  order  confirming  the  award  should  be  definite  and  certain,^* 
and  must  conform  to  the  provisions  of  the  statute  by  which 
confirmation  is  required. ^''^     Where  the  court  acts  in  its  judicial 


V.  Busch,  252  Mo.  209,  158  S.  W. 
309.  Ann.  Cas.  1915A,  719,  and 
note  reviewing  these  and  other 
cases  on  the  general  subject. 

^2  Anthony  v.  County  Comrs.,  14 
Pick.  (Mass.)  189.  Where  the  stat- 
ute provided  that  the  condemning 
company  or  any  defendant  could 
move  to  set  aside  the  proceedings 
as  to  any  tract  of  land,  it  was  held 
that  a  motion  to  set  aside  the  re- 
port as  to  an  undivided  half  inter- 
est in  the  lands  taken  could  not 
be  entertained.  Southern  Pac.  R. 
Co.  v.  Wilson,  49  Cal.  396.  See 
Reale  v.  Pennsylvania  R.  Co.,  86 
Penn.  St.  509. 

'•^  Sec  McArthur  v.  Morgan,  49 
Conn.  347:  Coleman  v.  Andrews, 
48  Maine  562;  George's  Creek  &c. 
Co.  V.  New  Central  Coal  Co.,  40 
Md.  425:  Hannibal  &c.  R.  Co.  v. 
Rowland.  29  Mo.  337:  Stinson  v. 
Dunbarton.  46  N.  IT.  385:  State  v. 
Cruser,  14  N.  J.  L.  401:  Commis- 
sioners of  Central  Park,  In  re,  61 
Rarb.  CN.  Y.)  40:  Potts'  Appeal, 
15  Pa.  St.  414. 

•'•■♦  Portland  &c.  R.  Co.  v.  County 
Comrs.,  65  Maine  292:  Yeamans  v. 
County  Comrs.,  16  Gray  (Mass.) 
36.    See  also  New  York  &c.  R.  Co. 


V.  New  York  &c.  R.  Co.,  52  Conn. 
274. 

°2  Reynolds  v.  Reynolds,  15 
Conn.  83:  Indianapolis  &c.  R.  Co. 
V.  Smythc,  45  Ind.  322:  Terre 
Haute  &c.  R.  Co.  v.  Crawford,  100 
Ind.  550;  Snoddy  v.  Pettis  County, 
45  Mo.  361;  State  v.  Dover,  10  N. 
H.  394;  State  v.  Cincinnati  &c.  R. 
Co.,  17  Ohio  St.  103:  Oregonian 
&c.  Co.  V.  Hill,  9  Ore.  7>n\  Fort 
Worth  &c.  R.  Co.  v.  l.aniplioar,  1 
Tex.  App.  Civ.  Cas.  127.  Sec  gen- 
erally Wagner  v.  New  York  &c. 
R.  Co.,  38  Ohio  St.  Z2,  10  Am.  & 
Eng.  R.  Cas.  380';  Reynolds,  Ex 
parte.  52  Ark.  330,  12  S.  W.  570,  44 
Am.  &  Eng.  R.  Cas.  60;  St.  Louis 
c^c.  R.  Co.  v.  Wilder,  17  Kans.  239: 
Kansas  City  &c.  R.  Co.  v.  Ken- 
nedy, 49  Kans.  19,  30  Pac.  126: 
Provolt  V.  Chicago  &c.  R.  Co.,  69 
Mo.  633:  State  v.  Lubke,  15  Mo. 
Apj).  152:  Dictrichs  v.  Lincoln  &c. 
R.  Co.,  12  Ncbr.  225,  14  N.  W.  718: 
Drath  v.  Burlington  &c.  R.  Co., 
15  Nebr.  367,  18  N.  W.  717;  Ore- 
gon &c.  R.  Co.  V.  Bridwell,  11  Ore. 
282,  3  Pac.  684;  Ennis  v.  Wood 
&c.  R.  Co.,  12  R,  I.  IZ.  Form  of 
judgment.  Peoria  &c.  R.  Co.  v. 
Peoria  &c.  R.  Co.,  66  111.  174. 


1009  PROCEDURE  IN  APPROPRIATIOX  CASES  §  1343 

capacity  in  confirming  the  report,  it  has  the  same  authority  to 
set  aside  the  order  of  confirmation  (hiring  the  term  at  which  it 
was  made  that  it  has  to  set  aside  its  other  judgments.'"'  The 
award  by  the  commissioners  is  generally  regarded  as  an  adju- 
dication of  damages  l:)y  a  competent  tribunal,  and  at  the  expi- 
ration of  the  time  allowed  for  appeal  it  is.  to  a  certain  extent 
at  least,  in  the  nature  of  a  judgment."'' 

§  1343  (1046).  Misconduct  of  jurors  or  commissioners. — Im- 
proper behavior  on  the  part  of  the  commissioners,  such  as  re- 
ceiving entertainment  at  the  expense  of  one  of  the  parties.^'-  or 
accepting  favors  at  his  hands, ''"'^  is  sufficient  to  vitiate  their 
award.  But  an  improper  motive  or  a  tendency  toward  an  im- 
j^roper  influence  must  be  shown.""  The  fact  that  the  commis- 
sioners agreed  with  the  condemning  company  as  to  the  amount 
of  their  compensation  is  not  cause  for  setting  aside  their  award, 
where  no  definite  compensation  is  fixed  by  law.  and  the  agree- 
ment was  openly  made  after  the  award  had. been  filed,  and  the 
sum  agreed  upon  as  compensation  was  not  excessive.''^  An 
agreement  between  the  commissioners  to  make  a  verdict  for  the 
c[uotient  to  be  obtained  by  dividing  the  sum.  of  their  estimates 

56  New  York-  Central  &c.  R.  Co..  &c.  R.  Co.,  In  re,  64  N.  Y.  60:  New 

Matter    of,   64    N.    Y.    60;    Reiff   v.  York  &c.  R.  Co.,  In  re,  5  Hun  (N. 

Conner.  10  Ark.  241.  Y.)     105;    Douglass    v.    Byrnes.    63 

^''^  Stauflfer    v.    Cincinnati    &c.    R.  Fed.    16. 

Co..  33  hid.  .\pp.  356.  70  N.  E.  543.  ^o  New  York  <!tc.  R.  Co.  v.  Town- 

58  Central  Pacific  R.  Co.  v.  Pear-  send.  36  Hun   (N.  Y.)  630. 

son.    35    Cal.    247;    Petition    for    a  6°  Hayward    v.    Bath,    40    N.    H. 

Highway.    48    N.    H.    433;    Buffalo  100.      Where    the    counsel    for   one 

&c.  R.  Co.,  Matter  "of.  32  Hun   (N.  of  the  parties  sent  a  paper  to  the 

Y.)  289.     It  is  held,   however,  that  commissioners,  on  which  were  cer- 

where    there    is    no    improper    mo-  tain    computations    which    he    had 

tive.    or    where    the    entertainment  ,L;ivcn    orallj^    at    the    hearing,    this 

was  furnished  with  the  consent  of  was  held  insufficient  cause  for  set- 

the  opposing  party,  the  ward   will  ting  aside  the  award.     New   York 

stand.      I'eardslcy   v.    Washington.  &c.   R.  Co.  v.   Church.  31   Hun   (N. 

39   Conn.  265;   State  v.   Dover   &c.  Y.),  440. 

R.    Co.,    43    N.    J.    L.    528;    Staten  ei  State  v.  Dover  &c.  R.  Co.,  43 

Island   R.   Co.,  In  re,  41    Hun   (N.  X.   T.   L.  528.   Matter  of  Staten  Ts- 

Y.)  392.     See  generally  New  York  land  R.  T.  Co..  41  Hun  (N.  Y.)  392. 


>-,  1344  K  AILKOADS 


1010 


of  the  (laniaiics  hv  tlu-  ininil)fr  of  coniniissioners  will  in\ali«l;ile 
.-.  report  based  on  the  result  of  sueh  a  proeeedin.^.''-  The  report 
niav  be  set  aside  for  ^ross  errors  of  the  commissioners  in  the 
])rinciples  upon  which  they  acted  in  making-  the  assessment  or 
ill  calcnlatin.i;-  the  values."'  And  it  has  been  held  that  it  may 
be  set  aside  as  to  one  person  or  tract  w  ithout  aiTectiuL;'  others.'** 

§  1344  (1046a).  Judgment. — As  alread}-  stated,  the  procedure 
varies  considerably  in  different  jurisdictions,  and  this  is  true  in 
some  res])ects  e\en  as  to  the  nature  and  scope  of  the  judi^nient. 
hi  this  sectit)n  we  shall  consider  some  of  the  hoIdini;s  in  various 
jurisdictions,  but  some  of  them  would  not  be  followed  in  every 
iurisdiction.  Since  the  proceeding-,  in  many  jurisdictions  at 
least,  is  one  simi)ly  for  the  ])urpose  of  ascertaining-  and  hxing- 
iudiciallv  the  amount  of  damag-es.  the  court,  on  confirming  the 
rci)ort,  should  not  render  a  i)ersonal  judgment  unless  there  is  a 
s])ecial  statutory  ])rovision  authorizing  such  a  decree  or  judg- 
ment, 'idle  judgment  should  be  in  the  nature  of  an  award.''-'' 
The  rule  is  the  same  on  a])peal.  "The  object  of  a])pellate  i)ro- 
ceedings  is  sim])ly  to  correct  the  assessment  of  the  commission- 

"-  Kansas     City     &:c.     R.     Co.     v.  must    he    n.'incdie<l    1)y    :in    appeal. 

Campbell.   62    Mo.    585;    Doiiner    v.  Seal    v.     Northern     &c.    R.     Co.,    1 

Pahner.  23  Cal.  40.     See  Marquette  Pears.   (Pa.)   108. 
vtc.    R.    Co.    V.    Probate    Judge.    53  e*  Stuhl)ins-s     v.      Evanston.     136 

Midi.  217.  18  N.  W.  788;  Forlies  v.  III.  Z7,  26  N.   E.   577,   11    L.   R.   A. 

Howard.  4  R.  T.  364.  839.  29  Am.  St.  300:   McKce  v.  St. 

"3  St.    Joseph    V.    Crowther.    142  l.ouis.  17  Mo.  184. 
Mo.  155.  43  S.  W.  786:  Van  Wicklc  '■•"■  St.  bonis  &c.  R.  Co.  v.  Wilder. 

V.  Camden   &e.   R.   Co..   14   \.  J.   T..  17   Kans.  239:   Lawrence  \t.  R.  Co. 

162:   Coster  v.   New  Jersey   R.   Co..  a-.    .Moore,    24    Kans.    32.^:    Kaiisas 

24    N.    J.    b.    730;    Swayzc    v.    New  City    &c.    R.    Co',    v.     Kennedy.    49 

Jersey  &c.  R.  Co.,  36  N.  J.  L.  295;  Kans.    19,    30    Pac.    126:     I'lorence 

New    York    &e.    R.    Co..    Tn    re.   33  il'c.  R.   Co.  v.    Lilley.  3   Kans.  App. 

Hun    (N.    Y.)    639.    98    N.    Y.    447:  588.  43   Pac.  857:  boui-ville  &c.  R. 

Reitcnbaugli   v.   Chester   R.   Co..  21  Co.    v.    Ryan.    64    Miss.    399.   8    So. 

Pa.  St.  100:  Chesapeake  &c.  R.  Co.  173;     Chesapeake     &c.     R.     Co.     v. 

V.  Pack.  6  W.  Va.  397.     The  mere  P,radford.   6   W.   \'a.   220.      Put   see 

tact  that  there  is  a  mistake  in   the  Curtis    v.    St.    Paul    Sre.    R.    Co..   21 

amount    of    the    damages    awarded  Minn.  497;  Robbins  v.  St.  P.inl  &c. 

is    not    sufficient    cause    for    setting  R.  Co.,  24  Minn.   191. 
a-^ide    the    award.      .Such    objection 


1011  PKOCEDITRE    IX    AIM'HOI'RIATION    CASES  §  1344 

ers.  Tlu-  jud^inent  docs  not  pass  the  title  to  the  land,  nor  to 
the  rii^ht  of  way.  It  simply  determines  the  amount  which  tlie 
railwa}'  company  shall  pay  to  the  owners,  or  to  the  county  treas- 
urer for  their  use,  in  order  to  secure  the  right  of  way.  It  is  in 
the  nature  of  an  award  of  damag'cs,  such  as  is  made  by  con- 
demnation commissioners,  except  perhaps  that  as  to  costs  it 
ma}'  be  in  the  form  of  an  ordinary  personal  judgment.''*'  Neither 
is  it  necessary  for  the  judgment  to  require  the  execution  of  a 
deed  to  the  railroad  com])an}-  for  the  land  condemned.  The  title 
IS  acquired  under  the  statute."'  The  judgment  should,  in  effect 
at  least,  be  one  a])propriating  the  right  of  way  to  the  company 
on  the  ]xayment  of  the  damages  assessed.*^®  Where  it  specifically 
refers  to  and  affirms  the  report  of  the  commissioners,  it  is  not 
necessar}-  for  it  to  recite  the  names  of  the  land-owners  who  are 
named  in  the  report.''''  The  judgment  should  provide  in  a  proper 
case  for  the  release  of  mortgages  on  the  payment  of  the  dam- 
ages assessed.'**  The  judgment  shotild  conform  to  the  relief 
I)rayed  for.  Relief  in  excess  of  that  demanded  can  not  be 
granted.  Land  diff^erent  from  that  described  can  not  be  taken. '^ 
On  ap])eal  the  property  owner  can  not  recover  more  damages 
than  he  claims.'-  It  has  been  held  in  a  proceeding  to  acquire 
the  right  to  construct  a  railroad  track  along  a  street  that  it  is 
ncjt  necessary  that  the  petition  should  show  the  number  of  tracks 
proposed  to  be  laid  in  the  street.  But  where  the  intention  to 
la}'  more  than  one  track  is  not  asserted,  and  the  map  shows  the 

"'•St.  Lmiis  &c.  R.  Co.  v.  Wilder,  discharjre  the  judojment.     Stoize  v. 

17  Kaiis.  239.  .Milwaukee    &c.    R.    Co.,    113    Wis. 

'•'  Indianapolis     &c.     R.     Co.     v.  44,  88  N.  W.  919,  99  Am.  St.  8.33. 

Smythc,  45  Ind.  322.  ""  Thompson,  v.    Chicago    &c.    R. 

"^Oregon  &c.  R.  Co.  v.  Rridwcll,  Co.,   110  Mo.   147,   19  S.  W.  11. 

11   Ore.  282,  3   Pac.  684.     Payment  ^o  Woolsey  v.  New  York  Ele.  R. 

r)f     award     in     condemnation     pro-  Co..  134  N.  Y.  323,  30  N.  E.  387,  31 

ceedings    in    the    manner    provided  X.   E.  891. 

l)y    stntuti-    iif    mnney    sufficient    t')  ^^  Brown  v.  Rome  &e.  R.  Co..  86 

satisfj-   tlie   constitntional   gnaranty  Ala.    206,    5    So.    195;    Chicago    &c. 

of   a   just    compensation    is    said   in  R.    Co.   v.   Chicago,   132   111.  Z12,  23 

a   recent  case  to  be  all   that  is  nee-  N.   E.   1036. 

essary     in     order     to     acquire     the  "-  Houston    &c.    R.    Co.    v.    Mil- 
rights    sought   to   be    obtained    and  burn,  34  Tex.  224. 


.^  1344 


K  VILROADS 


1012 


loc-atioii  1)1  Diily  one  tr;ick.  ni)  niort-  can  l)c  laid.'-'  The  laml  taken 
should  be  definitely  descri])ed  in  tlie  judgment.'*  Coming  now 
to  the  sufficiency  of  the  record  to  supi^ort  the  judgment  many 
of  the  cases  re(|uire  that  the  notice  required  to  be  served  should 
:iffirniati\  el\  a])|)ear  in  the  re])ort  since  tliis'  is  a  jurisdictional 
fact.'"'  \i  should  show,  under  most  statutes  at  least,  as  a  con- 
dition i)rece(lent  to  the  i)rocee(ling  that  the  parties  could  not 
agree  ti]>on  the  com])ensation  to  be  ])aid.'"  It  has  been  held 
unnecessar\"  that  it  should  affirmativel}'  appear  of  record  that 
the    appraisers    or    commissioners    were    (jualihed    to    serve    as 


"•■'  l?ay  City  Belt  Line  R.  Co.  v. 
Tlitchcock,  90  !\Iich.  533,  51  N.  W. 
808. 

"•»  Fore  V.  Hoke,  48  .Mo.  App. 
254:  Tarkio  v.  Clark,  186  Mo.  285, 
85.  S.  W.  329.  332  (must  be  de- 
scril)ed  at  least  so  it  can  be  made 
certain  in  the  record  proper);  Ft. 
Worth  &c.  R.  Co.  V.  Lampliear,  1 
Wliite  &  W.  Tex.  App.  Civ.  Cas. 
Ct.  §  308;  Galena  v.  Pound,  22  111. 
399;  New  York  &c.  R.  Co.  v.  New 
York  &c.  R.  Co.,  52  Conn.  274.  In 
a  recent  case  an  order  was  entered 
on  the  record  books  of  the  county 
court,  pending  trial  of  condemna- 
tion procccdinfjs  by  a  railroad 
company,  whereb\'  plaintiff  pro- 
posed to  construct  and  maintain 
certain  crossings,  and  the  order 
provided  that  the  proposition 
should  be  made  a  part  of  the  judg- 
ment. Subsequently  a  judgment 
was  entered,  assessing  damages  at 
a  specified  sum,  but  the  judgment 
did  not  mention  the  order.  After- 
wards the  land-owners  agreed  witli 
tl)e  successor  of  such  railroad  com- 
pany that  on  payment  of  the  dam- 
ages awarded  in  the  condemnation 
proceedings      tlie      owners      would 


transfer  the  benefit  of  the  judg- 
ment to  the  railroad  and  make  a 
deed  to  tlie  right  of  way,  which 
was  done.  The  court  held  that  the 
railroad  company  must  make  the 
crossings  referred  to  in  the  order; 
and  that  contentions  that  the  or- 
der was  a  mere  proposition,  never 
accepted,  and  that  the  land-owners 
were  estopped  by  the  contract  and 
acceptance  of  the  damages  from 
requiring  anj-thing  not  specified  in 
tlie  judgment  of  condemnation, 
were  without  merit.  Louisville  &c. 
R.  Co.  V.  Sale,  29  Ky.  I..  425,  93 
S.  W.  613. 

'•'"'  Ross  V.  North  Providence,  10 
R.  T.  461;  Vogt  v.  Rexar  Co..  5 
Tex.  Civ.  App.  272.  23  S.  W.  1044: 
Junction  City  &c.  R.  Co.  v.  Silver. 
27  Kans.  741. 

'"  Kansas  City  &c.  R.  Co.  v. 
Campbell,  62  Mo.  585.  Compare, 
however,  as  to  what  is  sufficient  to 
show  this,  TTyatsville  v.  Washing- 
ton &c.  R.  Co.,  122  ^Id.  660,  90 
.\tl.  515:  jMcKenzie  v.  Imperial  Irr. 
Co.  CTex.  Civ.  App.).  166  S.  W. 
495.  And  see  Evansville  <!l'c.  Ry. 
Ct).  V.  Fvansville  Terminal  Ry., 
175  Tnd.  21,  93  N.  E.  282. 


1013  PROCEDl'RE   IN   APPROPRIATION    CASES  §1344: 

sucli.'"  Where  the  judi^inent  has  been  rendered  by  a  competent 
court  it  is  not  oiu-n  to  collateral  attack  except  for  want  of  jiiris- 
(hction.'"  Thus,  in  a  collateral  proceeding,  a  party  can  not  raise 
the  cpiestion  as  to  the  riglit  of  the  plaintiff  to  condemn;''''  or  as 
to  the  qualifications  or  competency  of  the  commissioners;^"  or 
that  the  method  adopted  by  the  commissioners  in  their  compu- 
tation was  irregular  ;^^  or  that  there  was  a  misjoinder  of  parties 
defendant  in  the  ])etition  ;''-  or  that  the  description  of  the  lands 
in  the  ])etition  was  defective  ;®"  or  that  the  parties  seeking  con- 
demnation were  not  legally  incorporated.*^  The  judgment  until 
set  aside  or  reversed  is  a  final  adjudication  of  the  controversy.^^ 
It  is  without  effect,  however,  as  to  persons  who  should  have 
l)een  but  were  not  made  parties  to  the  proceeding.*'"'  Thus  a 
judgrucnt  condemning  land  will  not  affect  a  tenant  thereon  who 
is  not  made  a  part},"'  and,  on  the  other  hand,  it  is  not  binding 

"American  &c.  Co.  v.  Hunting-  Co.,  130  U.  S.  559,  9  Sup.  Ct.  603, 

ton  &c.  R.  Co.,  130  Ind.  98,  29  N.  2>2  L.  ed.  1045;  Cage  v.  Trager,  60 

E.  566;  Gay  v.  Caldwell,  3  Ky.  6i.  Miss.  563;    Gulf  &c.   R.  Co.  v.  Ft. 

"8  Secombe  v.  Milwaukee  &c.   R.  Worth  &c.  R.  Co.,  86  Tex.  537,  26 

Co.,   90   U.    S.    108,   23    L.   ed.   67;  S.  W.  54.    See  also  Pettit  v.  Comrs. 

Chicago   &c.   R.    Co.   v.   Springfield  of  Wicomico  County,  123  Md.  128. 

&c.   R.   Co.,  67  III.   142:  Townsend  90  Atl.  993. 

V.  Chicago  &c.  R.  Co.,  91  111.  545;  si  u„ion  Depot  R.  Co.  v.  Fred- 
South  Chicago  &c.  R.  Co.  v.  Chi-  crick,  117  Mo.  138,  21  S.  W.  1118, 
cago,  196  HI.  490,  62,  N.  E.  1046;  1130,  26  S.  W.  350. 
Brown  v.  Philadelphia  &c.  R.  Co.,  S2  Thompson  v.  Chicago  &c.  R. 
58  Md.  539;  Thompson  v.  Chicago  Co.,  110  Mo.  147,  19  S.  W.  77. 
&c.  R.  Co.,  110  Mo.  147,  19  S.  W.  S3  st.  Joseph  &c.  Co.  v.  Cincin- 
77:  Sedalia  v.  Missouri  &c.  R.  Co.,  nati  &c.  R.  Co.,  109  Ind.  172,  9 
17  Mo.  App.  105;  Allen  v.  Utica  N.  E.  727;  Fremont  &c.  R.  Co.  v. 
&c.  R.  Co.,  15  Hun  (N.  Y.)  80;.  :\rattheis,  39  Nebr.  98,  57  N.  W. 
Weinckic  v.  New  York  <S:c.  R.  Co.,  987. 

61  Hun  619,  15  N.  Y.  5.  689;  Da-  S4  Chicago  &c.  R.  Co.  v.  Chicago 
vidson  V.  Texas  &c.  R.  Co.,  29  Tex.  &:c.  R.  Co.,  112  111.  589. 
Civ.  App.  54.  67  S.  W.  1093;  Dmuin  ss  Pennsylvania  &c.  R.  Co.  v. 
v.  Boston  &c.  R.  Co..  74  Vt.  343,  Gorsuch,  84  Pa.  St.  411;  Spokane 
52  Atl.  957.  A^TJley  Power  Co.  v.  Northern  Pac. 
"3  Foltz  V.  St.  Louis  &c.  R.  Co.,  R.  Co..  99  Wash.  557.  169  Pac.  991. 
60  Fed.  316;  Chesapeake  &c.  R.  ^^' National  R.  Co.  v.  Easton  &c. 
Co.  V.  Washington  &c.  R.  Co..  99  R.  Co.,  36  N.  J.  L.  181. 
Va.  715,  40  S.  E.  20.  s"  Baltimore  &c.  R.  Co.  v.  Par- 
se Huling  V.    Kaw  Valley   R.   &c.  rette,  55  Fed.  50. 


§  1345 


KAII.KOADS 


1014 


fill  the  owner  of  the  ground  rent  where  the  proceeding-  is  a.iifainst 
a  tenant  oiilv.'^''  Where  the  proceedini^^  for  condemnation  is 
settled  by  the  parties  and  a  consent  decree  is  entered  a.gainst 
the  railroad  company  conferrinti^  an  easement  on  the  right  of 
way  as  described,  the  decree  has  the  same  effect  as  a  dcud  to 
tonvey  the  right  of  way.**'* 

§  1345  (1047).  Waiver  of  objections. — The  doctrine  of  waiver 
ai)plies  to  ])roceeding"s  under  the  power  of  eminent  domain,  and 
the  .general  rule  is  that  if  a  party  has  knowledge  of  the  facts 
and  an  opportunity  to  present  them  he  must  a\ail  himself  of 
the  opj)ortunity  or  he  will  be  reg'arded  as  having  wai\ed  the 
objections.  Defects  in  a  notice  may  be  waived.'"'  and  so  may 
ciefects  in  petitions."^  The  authorities  which  hold  that  defects 
in  notices  and  ])etitions  may  be  waived  by  failure  to  seasonabl}- 
inter|)ose  objections  clearly  support  the  conclusion  that  objec- 
tions to  the  report  or  to  any  of  the  proceeding-s  will  be  regarded 
as   waived    unless    opportunely    and    approi)riately    made.-'-      So. 


88  Voegtly  V.  Pittsburgh  &c.  R. 
Co..  2  Grant  Cas.   (Pa.)  243. 

•'"•  ChicaRO  &c.  R.  Co.  v.  Snjdcr. 
120  Iowa  532.  95  N.  W.  183. 

'JO  Windsor  v.  ImcUI,  1  Conn.  279; 
.Swinnej'^  v.  Fort  Wayne  &c.  R. 
Co..  59  Ind.  205,  219;  Atchison  &c. 
R.  Co.  V.  Patch,  28  Kans.  470; 
Rarre  &c.  Co.  v.  .Xppleton,  2  Pick. 
(Mass.)  430:  East  Saginaw  &o.  R. 
Co.  V.  Benham,  28  IVIich.  459: 
T.angford  v.  County  Commission- 
ers, 16  Minn.  375;  Rheiner  v.  Union 
&c.  R.  Co.,  31  Minn.  289,  17  N.  W. 
623.  14  Am.  &  Eng.  R.  Cas.  373: 
Minneapolis  &c.  R.  Co.  v.  Kanna. 
32  Minn.  174;  Parish  v.  Gilmanton, 
11  N.  IT.  293:  Cruger  v.  Hudson 
River  Co.,  12  N.  Y.  190:  Tingley 
V.  Providence,  9  R.  I.  388;  Onken 
V.    Riley.    65    Tex.    468;    Damp    v. 


Dame.  29  Wis.  419;  Scifcrt  v. 
Hrroks,  34  Wis.  443.  See  also 
Wiegand  v.  Siddon,  41  App.  D.  C. 
130;  St.  Louis  &c.  R.  Co.  v.  Dono- 
van. 149  Mo.  93.  50  S.  W.  286: 
Kirkwood  V.  Cronin,  259  Mo.  207, 
168  S.  W.  674. 

"1  Wells  V.  Rhodes,  114  Ind.  467, 
16  N.  E.  830;  Palmer  v.  Highway 
Comr.,  49  Mich.  45.  12  N.  W.  903: 
l^acheler  v.  New  Hampton.  60  N. 
11.  207. 

^-  See  upon  the  general  subject. 
Chowan  &c.  R.  Co.  v.  Parker,  105 
N.  Car.  246,  11  S.  E.  .328:  Norfolk 
^c.  R.  Co.  V.  ICly,  101  N.  Car.  8. 
7  S.  E.  476;  Chicago  &c.  R.  Co.  v. 
Randolph  &c.,  103  Mo.  451,  15  S. 
W.  437;  Mansfield  &c.  R.  Co.  v. 
Clark.  23  Mich.  519;  Gage  v.  Chi- 
cago, 141  111.  642,  31  N.  E.  163. 


lOlf)  PKOCKDrHK    IX    APPROPRIATION'    CASES  §1346 

defects  and   irrei^ularities  in  other  proceed ini^s  before  the  trial'''^ 
;;nd   in  the  award   itself'"  nia\'  l)e  \vai\e(h 

§  1346  (1055).  Company  a  trespasser  where  proceedings  are 
void. —  It  is  held  in  a  nnndier  of  cases  tliat  nidess  it  lias  ])nrsued 
ihe  statntory  method  lor  ac(|iiirini4-  ])roi)ert}-.  a  railroad  com])an\- 
which  takes  possession  of  property  witliout  the  consent  of  the 
land-owner  is  a  tres])asser.'''''  l>nt  in  oiu"  o])inion  the  compan\- 
should  not  he  regarded  as  a  naked  trespasser  where  it  acts  in 
good  faith  and  enters  into  possession  under  color  and  claim  of 
right.  Where  there  is  good  faith  and  color  of  right  the  com- 
]iany  ought,  as  we  believe,  to  be  held  to  pay  just  compensation 
and  damages,  but  should  not  be  compelled  to  lose  the  im])rove- 
ments  it  has  made.'"'  .As  we  ha\e  elsew  here  shown,  the  adjudged 
cases  declare  that  a  comjiany  that  enters,  without  right,  may 
1)e  ousted   liy   an   action    of  ejectment,'''   but  we  think   this  rule 

•'i!  Whitely  V.  Mississippi  &c.  Co.,  olis    8zc.    R.    Co.,   33    Minn.   419,   23 

38   Minn.   523,   38   N.  W.   753:    Lie-  N.  W.  854;  Illinois  Central  R.  Co. 

l)crman   v.  Chicago  &o.  R.   Co..   141  v.    Hoskins,    80    Miss.    730,    32    So. 

111.  140,  30  N.  E.  544;  Cooper,  ^lat-  150,  92  .Km.  St.  612;  Ells  v.  Pacific 

tcr  of,  93   N.  Y.  507.  R.    Co..   51    Mo.  200;    Moses   v.   St. 

»■*  Mattheis    v.    Fremont    &c.     R.  bonis   Sectional   Dock   Co.,  84   Mo. 

Co.,    53    Nebr.    681,    74   N.    W.    30;  242;    Hull    v.    Chicago   &c.    R.    Co., 

Morning  Side  Park,  In  re.  10  .\bb.  21  Nebr.  371,  32  N.  W.  162;  Adams 

Pr.    N.    S.    (N.    Y.)    338;    Twombly  v.    Saratoga    &c.    R.    Co.,    10   N.   Y. 

V.    Chicago   &c.   R.   Co.    (Tex.    Civ.  328;    Bothe  v.   Dayton   &c.   R.   Co., 

App.),  31    S.  W.  81;   Chatterton  v.  37  Ohio  St.  147. 
Parrott.  46  Mich.  432,  9  N.  W.  482.  ""Ante,  §§   1269,   1270,   1351. 

And  so  as  to  qualifications  of  com-  ""  Jones   v.    New   Orleans   &c.    R. 

missioners     or     appraisers.       Tide-  Co.,  70  Ala.  227;  Smith  v.  Inge,  80 

water    R.    Co.    v.    Cowan,    106    Va.  Ala.    283;    Robinson    v.    Pittsburgh 

817,  56  S.  E.  819.  R.  Co.,  57  Cal.  417;  Graham  v.  Co- 

"■^'Ewing    V.    St.    Lfuiis.    5    Wall.  lumbus  &c,  R.  Co.,  27  Ind.  260,  89 

(U.   S.)    413,    18   L.   ed.  657;    Smith  Am.    Dec.    498;    Co.x    v.    Louisville 

V.  Chicago  &c.  R.   Co.,  67  111.  191;  cS:o.  R.  Co..  48  Ind.  178;  Daniels  v. 

Peoria    &c.    R.    Co.    v.    Schcrtz.    84  Chicago   &c.    R.   Co..   35    Iowa    129. 

111.    135;    ^Memphis    &c.    R.    Co.    v.  14   Am.    Rep.   490;   Conger   v.    Rur- 

Parsons   Town    Co..   26    Kans.   503;  lington    &c.    R.    Co.,    41    Iowa    419; 

Harris     v.     ?^larbleliead.     10     Cray  St.  J.iseph   &(-.  R.  Co.  v.  Callender. 

(Mass.)   40;    Blaisdel!   v.  Winthro]).  13     Kans.    496;     Harrington    v.    St. 

118   Mass.   138:   Kannc   v.   :\linneap-  I'aul     ^cc.     R.     Co.,    17    Minn.    215; 


:{4(j 


KAILROADS 


]()16 


does  not  apiily  wIutc  there  is  an  cst()pi)el  or  unexcuscd  acfiui- 
cscence,  but  that  there  should  he  full  compensation  for  the  i)roi)- 
ertv  taken  and  the  injur}-  indicted.''^  W'lure  the  entry  is  with- 
out rii^iit  the  land-owner  is  entitled  to  full  compensation  for  the 
loss  suffered  1)_\'  him.  and.  according-  to  the  weiinht  of  authority, 
ma}',  if  there  is  no  element  of  estoppel,  proceed  ag'ainst  the  com- 
panv  as  a  trespasser.''^  It  seems  to  us  that  wdiere  there  is  g'ood 
faith  and  color  of  right,  the  company  ma}',  on  pa}'ment  or  tender 


Walker  v.  ChicaRO  &c.  R.  Co.,  57 
Mo.  275;  Flynn  v.  Beaverhead 
County,  49  Mont.  347.  141  Pac. 
()73:  Stewart  v.  Camden  &c.  R.  Co., 
33  N.  J.  L.  115:  Lozier  v.  New 
York  Cent.  R.  Co.,  42  Barb.  (N. 
Y.)  465:  Baker  v.  Long  Island  R. 
Co.,  1  How.  Pr.  (N.  Y.)  214;  Mc- 
Clinton  v.  Pittsburgh  &c.  R.  Co., 
66  Pa.  St.  404;  Justice  v.  Nesque- 
honing  Valley  R.  Co..  87  Pa.  St. 
28;  Wilmington  &c.  R.  Co.  v.  High. 
89  Pa.  St.  282;  Galveston  &c.  R. 
Co.  V.  Pfeuffer,  56  Tex.  66;  Oilman 
V.  Sheboygan  R.  Co.,  40  Wis.  653; 
Rusch  V.  Mihvaukee  &c.  R.  Co., 
54  Wis.  136,  11  N.  W.  253.  In 
states  where  the  compensation  is 
not  required  to  precede  the  taking, 
a  mere  entry  is  held  not  to  be  a 
trespass.  Louisville  &c.  R.  Co.  v. 
Quinn,  14  Lea  CTenn.)  65;  Tur- 
rell  V.  Norman,  19  Barb.  (N.  \.) 
263.  But  if  compensation  is  not 
made  within  a  reasonable  time  the 
corporation  may  be  held  liable  as 
a  trespasser  ab  initio.  Cushman  v. 
Smith.  34  Maine  247.  Where  the 
owner  consented  to  an  entry  in  re- 
liance upon  a  promise  of  the  com- 
pany to  make  compensation,  it  was 
held  that,  upon  its  failure  to  ful- 
fill this  promise,  the  land-owner 
could  sue  in  trespass.  Evansville 
&c.  R.  Co.  V.  Grady.  6  Bush  (Ky.^ 


144.  If  tlie  consent  of  the  owner 
was  upon  condition,  all  conditions 
must  be  shown  to  have  been  ful- 
filled before  the  laiul-owner  will 
be  enjoined  from  prosecuting  an 
action  of  trespass  for  the  damages 
done  by  the  construction  of  the 
railroad  and  operation  of  its  trains 
across  his  land.  Baltimore  &c.  R. 
Co.  V.  Algire,  65  Md.  337,  4  Atl. 
293.  Where  a  land-owner  has  ex- 
pressly forbidden  a  railroad  com- 
paii}^  to  enter  upon  her  land,  mere 
acquiescence  on  her  part  in  the 
subsequent  construction  of  the 
road  across  her  land  will  not  estop 
her  to  sue  in  trespass  for  dam- 
ages. Currie  v.  Natchez  &c.  R. 
Co.,  61   Miss.  725,  62  Miss.  506. 

"«Ante,  §§  1350,  1351.  See  also 
Rivard  v.  Missouri  Pac.  R.  Co., 
257  Mo.  135,  165  S.  W.  763. 

""Jones  v.  New  Orleans  &c.  R. 
Co..  70  Ala.  227;  Whitehead  v. 
Arkansas  Central  R.  Co..  28  Ark. 
460:  Potter  v.  Ames,  43  Cal.  75; 
Hooker  v.  New  Haven  dl-c.  R.  Co.. 
14  Conn.  146,  36  Am.  Dec.  477; 
Cai)ers  v.  Augusta  &c.  R.  Co..  76 
Ga.  90;  Taylor  v.  Marcy.  25  111. 
518;  President  I'tc.  Crawfordsvillc 
c"tc.  R.  Co.  V.  W"right.  5  Tnd.  252; 
Anderson  &c.  R.  Co.  v.  Kernodle. 
54  Ind.  314;  Henry  v.  Dubuque  &c. 
R.  Co.,  10  Iowa  540;  Birge  v.  Chi- 


]017                              PKOCEDl-RE    IN   APl'KOl'RIATIOX    CASES  §1346 

of  lull  cunii)cnsation,  hold  the  land  in  cases  where  il  has  con- 
structed its  road,  hut  that  in  order  to  give  it  this  rii^ht.  payment 
or  tender  should  be  made  within  a  reasonahle  time. 

cago   &c.    R.   Co.,   65   Iowa   440,   21  M    Mo.   262;    .Smart   v.    Portsmouth 

N.  W.  767:  Atchison  &c.  R.  Co.  v.  &c.  R.  Co.,  20  N.  H.  233;  Eaton  v. 

Weaver,    10    Kans.    344;    Storer    v.  Boston   &c.   R.   Co.,   51    N.   H.  504, 

Hobbs,    52    Maine    144;    Baltimore  12    Am.     Rep.     147;    Tcrpening    v. 

&c.   R.    Co.   V.    Boyd,   63    .VId.   325;  Smitli,  46  Barb.  (N.  Y.)  208;  Blod- 

Wamesit     &c.     Co.    v.    Allen,     120  gett  v.  Utica  &c.   R.  Co.,  64  Barb. 

Mass.  352;  Murray  v.  Fitchburg  R.  (N.  Y.)  580;  Sccomb  v.  Milwaukee 

Co.,  130  Mass.  99;  Warren  v.  Spen-  &c.    R.    Co.,  49    How.    Pr.    (N.    Y.) 

cer  Water   Co.,  143   Mass.  9,  8   N.  75;    Picrcy    v.    Johnson    City,    130 

E.    606;    Prescott   v.    Patterson,   44  Tcnn.  231,   169  S.  W.  765;   Buffalo 

Mich.  525,  7  N.  W.  237;   Hursh  v.  Bayou    &c.    R.    Co.    v.    Ferris,    26 

First  Division  St.  Paul  &c.  R.  Co.,  Tex.    588;     Foop    v.     Chamberlain, 

17    Minn.    439;     Schroeder    v.    De  20   Wis.    135;    Rusch    v.    Milwaukee 

Graff,  28  Minn.  299;   Memphis   &c.  &c.  R.  Co.,  54  Wis.   136,  11   N.  W. 

R.     Co.    V.     Payne,    37    Miss.    700;  253;    Ramsden    v.    Manchester    &c. 

Mueller   v.    St.    Fouis    &c.    R.    Co.,  R.    Co.,    1    Exch.   723. 


(■[lAI'Tl'.k    Xl.l. 

ri-:.\ij:imes  of  laxo-uvvxhrs 

Sfc.  Sc-c. 

135(1.     Remedies     t<>     enforce     pay-  l.i57.     Rriiudies      n!'     iand-nwiuT — 

ineiit    of   compensation.  Damages. 

l.>51.     Remedies     of     land-owner —  1358.    Remedies     of     land-owner — - 

Generally.  'rakin!.i     or     injury     in     ex- 

1352.  Remedies     of     land-owner —  cess   of  that   condemned. 

Injunctir)n.  1359.    Remedies     of     land-owner — 

1353.  Remedies     of      land-owner —  Riglit   of   com])any   to  con- 

Limitation   of   action.  veyance. 

1354.  Remedies     of     land-o\vner — -       1360.    Effect   of   tinder   of  payment 

Parties   to   proceedings.  by   com])an\-. 

1355.  Remedies     of     land-owner—        1361.    Accejjtance      of      damages — 

Pleading.  Estoppel. 

135().    Remedies     (^f     land-owner — 
Evidence. 

§  1350  (1048).  Remedies  to  enforce  payment  of  compensa- 
tion.— \\'here  ])aynu'nt  of  cdiiipensation  is  rc(|iiirc(l  to  ])r('cr(lc 
tlu-  taking"  and  the  corjxiration  ha.s  ()l)taine(l  or  is  atlcniijtiiu^-  to 
take  possession  of  the  land  hefore  i^aynuMit  has  actuallx'  l)CH'n 
made,  its  further  occupation  of  the  land  may  be  enjoined  nntil 
the   daniag'es   are   paid.'   unless   the   owner   has.   hv   acqin'escence 

'Cowan   V.  Southern    K.   Co..   IIS  56S:    i-'vans   v.   .Missouri   iSjc    R.   Co.. 

Ala.    554.    23    So.    754:     ^^umg    v.  64    .Mo.    453:     I'rovolt    v.    Chicago 

Harrison.  6  Ga.   130;   Gammage   v.  (!tc.    R.    Co..    69    Mo.    633;    Ray    v. 

Georgia    Southern    R.    Co..    65    Ga.  .\tcIiison    tKrc.   R.   Co..   4   Nebr.   439: 

614:    I'"t.   Wayne    v.    i'"t.   Wayne    &c.  l'"rei-liolders    of    Monmouth    Co.    v. 

R.  Co..   149  Ind.  25.  48   X.   E.  342;  Red  Bank  &c.  Co..  18  X.  J.  E(|.  91: 

Richards  v.  Des  Moines  &c.  R.  Co.,  White   v.    Xashville    &c.    R.    Co.,    7 

18    Iowa    259;    Irish    v.    lUirlington  Hcisk.     (Tenn.)      518:     Kendall     v. 

&c.  R.  Co.,  44  Iowa  380;  Harness  v.  .Missiscpioi    itc.   K.   Co..  55   Vt.  438: 

Chesapeake   &c.    Canal    Co..    1    Md.  Kittell     v.     .Missis<|uoi     R.     Co.,     56 

Cli.  248;   Elwcll  v.   Eastern    R.   Co..  Vt.    96:     Sturtevant     v.     Milwaukee 

124  Mass.  160;   Lohman  v.  St.   Paul  (S:c.   R.   Co..   11    W^is.  63;   Gilman  v. 

«;c.  R.  Co..  18  Minn.  174;  Stewart  v.  Sheboygan  &c.  R.  Co..  40  Wis.  653; 

Raymond  R.  Co..  7  S.  &  M.  (Miss.)  Stolzc    v.    Milwaukee    &c.    R.    Co., 

1018 


1019  REMEDIES   OP   LAXD-OW  N  KRS  §  1350 

in  the  occupancy  of  his  land  until  tlu'  rii;hts  of  the  ])ul)lic  ha\c 
intervened,-  estop])ed  himself  to  enjoin  its  further  occupation. •• 
Under  the  c|ualification  or  limitation  just  stated,  where  a  rail- 
road company  entered  into  ]K)ssession  and  huilt  its  road  with 
the  consent  or  acquiescence  of  the  owner  and  the  holder  of  an 
outstanding"  option  to  purchase,  the  remedy,  if  any,  against  the 
company  was  held  to  be  an  action  for  damages.'*  In  states  which 
permit  the  corporation  to  acquire  title  to  land  before  the  dam- 
ages are  paid,  but  which  do  not  authorize  the  issuing  of  an 
execution  upon  the  judgment  awarding  damages  it  is  generally 
held  that  the  award  may  be  enforced  by  an  independent  suit."' 
^\l^ere  the  company  neglects  to  have  the  damages  assessed  for 
lands  of  which  it  has  taken  possession,  the  English  courts  hold 
that  a  bill  in  equity  may  be  filed  by  the  land-owner  to  compel 


113  Wis.  44,  88  N.  W.  919,  90  Am.  279:     F.irvvard    v.     Hampshire    &c. 

St.  833.     A  vendee  or  lessee  of  the  Canal    Co.,    22    Pick.    (Mass.)    462; 

company    may    be    enjoined    froin  Ross  v.   Elizabethtown   &c.   R.   Co., 

using   the   land   until   compensation  2    N.    J.    Eq.    422;    Hentz    v.    Long 

is   made.      Ray  v.   Atchison   &c.   R.  Island  &c.  R.  Co.,  13  Barb.  (N.  Y.) 

Co.,   4    Nebr.   439;    Oilman    v.    She-  646;    Goodin    v.    Cincinnati    &c.    R. 

boygan    &c.    R.    Co.,   40   Wis.    653;  Co.,   18  Ohio  St.   169,  98  Am.  Dec. 

Hibbs    V.    Chicago    &c.    R.    Co.,    39  95;    Pettibone   v.    LaCrosse    &c.    R. 

Iowa  340;    Kittell  v.  Missisquoi  R.  Co.,  14  Wis.  443;  Wood  v.  Charing 

Co.,  56  Vt.  96;  Provolt  v.  Chicago  Cross  &c.  R.  Co.,  33  Beav.   (Eng.) 

&c.  R.   Co.,  69   Mo.  633.     See  also  290.      See   also    Midland    R.    Co.    v. 

KnoxviUe    R.   &c.   Co.  v.   O'Fallen.  Smith,   135   Tnd.  348,  35  N.   E.  284. 

130  Tenn.  270,    170   S.   W.   55.  ^Eastern    Oregon    Land    Co.    v. 

2  Where  the   land  was  taken  with-  Des    Chutes    R.    Co.,   213    Fed.   897. 

out   the   consent  of  the  owner,   the  See    also    Kamper   v.    Chicago,   215 

public  can  acquire  no  rights  there-  Fed.    706. 

in    until    payment    has    been    made  ■"'  In   states   in   which   the   law   re- 

therefor.     Evans  v.  Missouri  &c.  R.  (|uircs    security   to   be   given   before 

Co.,  64  Mo.  453;   Stretton  v.   Great  land    is    taken,     the    security    may 

Western    &c.    R.   Co.,  40    L.   J.    Eq.  be    proceeded    against    to    recover 

50;  Zimmerman  v.  Kansas  City  &c.  the    award.      And    in    Pennsylvania 

R.   Co.,   144   I*"ed.   622.  it  has  been  held  that  the  land-own- 

^  Remshart    v.    Savannah    i&c.    R.  cr  can   not  claim  any  rights  in  the 

Co..  54  Ga.  579;  Griffin  v.   .Augusta  land    as    against    a    mortgagee    of 

&c.    R.  Co.,  70   Ga.   164;   Reisner  v.  the     railroad     company,    but    must 

Strong,    24    Kans.    410;    ]\Iooers    v.  look  to   the  personal   responsibility 

Kennebec    &c.    R.    Co.,    58    ]\Iaine  of    the    company    and    the    sureties 


.<  KJ.IO 


ICAILUOADS 


1U2U 


it  to  cl*»  so."  It  lias  been  held  tlirit  i)r()perty  taken  in  invitum 
is  taken  subject  to  an  obligation  to  make  compensation  therefor. 
and  that  tliis  oblii^ation  constitutes  a  \en(lor"s  lien  upon  the 
land  taken,  and  can  be  enforced  as  such  in  a  court  of  equitx .' 
And  in  states  where  this  view  is  held  as  well  as  in  those  whose 
courts  hold  that  no  title  ])asses  until  compensation  is  made,^  it 
is  also  held  that  those  holding-  under  the  condemniui^-  conipany 
by  niort^ajL;"e.  lease  or  otherwise,  take  the  lands  sul)ject  to  the 
rij?ht  of  the  owner  to  enforce  payment  of  his  damages.^   In  many 


on  its  bond.  Fries  v.  SnutluM-n 
I'c-nnsyivania  R.  Co.,  85  Pa.  St.  7?,. 
.\  suit  may  be  brouc^ht  directly  on 
tlie  award,  although  a  1)ond  was 
fjivcn  to  secure  its  payment.  The 
bund  is  simply  an  additional  se- 
curity and  does  not  destroy  nor 
suspend  other  remedies.  Fisher 
V.  Warwick  R.  Co..  12  R.  T.  287. 

''•  .-\dams  V.  London  and  P.Iack- 
wall  R.  Co..  18  L.  J.  Ch.  X.  .S.  .357: 
Inge  V.  Birmingham  &c.  R.  Co..  3 
DeG.  McN.  &  G.  658:  Mason  v. 
Stokes  Bay  Pier  &c.  R.  Co..  32  L. 
J.  Ch.  110.  And  see  .\dams  v.  Lon- 
don &c.  Blackwall   R.  Co..  2  McN. 

6  G.  118;  Hedges  v.  Metropolitan 
R.  Co.,  28  Beav.  fEng.)  109:  Red 
River  Bridge  Co.  v.  Clarksville,  1 
Sneed  (Tenn.)  176.  60  \m.  Dec. 
143. 

'  Mims  V.  Macon  &c.  R.  Co.,  3 
Ga.  ?>ii:  Provolt  v.  Chicago  &c. 
R.  Co..  69  Mo.  633:  Walker  v. 
Ware  &c.  R.  Co.,  35  L.  J.  Eq.  94: 
Dayton  &c.  R.  Co.  v.  Lewton,  20 
Ohio  St.  401.  55  .\m.  Dec.  464: 
Gillison    v.    Savamiali    1*^:1-.    R.    Co.. 

7  S.  Car.  173;  Kendall  v.  Missis- 
quoi  &c.  R.  Co.,  55  Vt.  438:  South- 
ern R.  Co.  V.  Gregg.  101  Va.  308, 
43  S.  E.  570:  Earl  St.  Germans  v. 
Crystal  Palace  R.  Co..  L.  K.  11  F(|. 
Cas.  568. 

^  This     doctrine     obtains     in     all 


states  in  wliich  compensation  is  re- 
quired to  ]ireccde  the  taking,  and 
also  in  otiiers  in  which  the  consti- 
tution simply  requires  that  com- 
pensation shall  be  made.  Gilman 
V.  Sheboygan  &c.  R.  Co..  40  Wis. 
653:  Western  Pennsylvania  R.  Co. 
V.  Johnston.  59  Pa.  St.  290:  Buftalo 
I'tc.  R.  Co.  V.  Harvey.  107  Pa.  St. 
319:  Hatry  v.  Painesville  &c.  R. 
Co..  1  Ohio  Cir.  Ct.  426:  Kittell  v. 
>fissis(|noi  R.  Co..  56  Vt.  96: 
Bridgman  v.  St.  Johnsbury  &c.  R. 
Co..  58  Vt.  198,  2  Atl.  467:  White 
V.  Nashville  &c.  R.  Co.,  7  Heisk. 
(Tenn.)  518.  See  also  Zimmerman 
V.  Kansas  City  &c.  R.  Co..  144  Fed. 
622.  And  see  as  to  effect  of  appeal 
and  when  title  passes  and  to  what 
period  it  relates  back.  Cleveland 
&c.  R.  Co.  V.  Nowlin.  163  Tnd.  497, 
72  N.  E.  257:  Terre  Haute  &c.  R. 
Co.  V.  Indianapolis  Traction  Co., 
167  Ind.  193.  78  N.  E.  661.  And  see 
.generally  Kennedy  v.  Indianapolis, 
103  U.  S  599.  26  L.  ed.  550:  Perkins 
V.  Maine  Cent.  R.  Co.,  72  Maine 
95:   ante.    §   1247. 

^  Tn  srnne  of  the  states,  it  is  held 
that  the  acceptance  and  use  by  the 
grantee  of  a  corporation  of  lands 
for  which  the  corporation  has 
failed  to  make  compensation  as  re- 
(piired  bj-  law.  renders  the  grantee 
personally    liable    for    the   payment 


1021 


REMEDIES  OF   LAND-OWNERS 


§  1:5.10 


of  the  slates  a  suit  at  common  law  may  l^e  maintained  npon  the 
implied  ])romise  to  pay  a  just  compensation  lor  the  lands  taken. ^-' 
And  for  any  taking  or  injury  for  which  the  statute  does  not 
provide  a  remedy,  the  land-owner  may  sue  at  common  law.^^ 
Some  of  the  courts  hold   that  even   though   the  original   taking 


of  such  compensation.  Western 
Pennsylvania  R.  Co.  v.  Johnston, 
59  Pa.  St.  290;  Buffalo  &c.  R.  Co. 
V.  Harvey.  107  Pa.  St.  319:  Oilman 
V.  Sheboygan  &c.  R.  Co.,  21  Wis. 
317:  Lake  Erie  &c.  R.  Co.  v.  Grif- 
fin, 92  Ind.  487.  But  the  new  cor- 
poration majr  refuse  to  accept  prop- 
erty to  which  the  old  corporation 
has  failed  to  acquire  title,  and  may 
proceed  to  condemn  in  its  own 
.name.  Adams  v.  St.  Johnsbury 
&c.  R.   Co.,  57  Vt.  240. 

1°  Boise  Valley  Constr.  Co.  v. 
Kroeger.  17  Idaho  384,  105  Pac. 
1070,  28  L.  R.  A.  (X.  S.)  968 
(quoting  text),  and  to  the  same 
effect  are  the  following  cases: 
Bentonville  R.  Co.  v.  Baker,  45 
Ark.  252:  Rome  v.  Perkins,  30  Ga. 
154:  Donald  v.  St.  Louis  &c.  R. 
Co.,  52  Iowa  411,  3  N.  W.  462: 
Wichita  &c.  R.  Co.  v.  Fechheimer, 
2,6  Kans.  45,  12  Pac.  362;  Bailey  v. 
New  Orleans,  19  La.  Ann.  271: 
Allen  V.  Wabash  &c.  R.  Co.,  84 
Mo.  646:  Welsh  v.  Chicago  &c.  R. 
Co.,  19  Mo.  App.  127:  Gulf  Coast 
&c.  R.  Co.  V.  Donahoo.  59  Tex. 
128;  International  &c.  R.  Co.  v. 
Benitos,  59  Tex.  326.  See  also 
Southern  R.  Co.  v.  Hood,  126 
Ala.  312.  28  So.  662,  85  Am.  St.  22: 
Chicago  &c.  R.  Co.  v.  Jones,  103 
Tnd.  386,  6  N.  E.  8,  55  Am.  Rep. 
756:  Brown  v.  Chicago  &c.  R.  Co., 
64  Nebr.  62,  89  N.  W.  405:  South- 
ern  R.   Co.  V.   Gregg.   101    Ya.  308. 


43  S.  E.  570:  Zimmerman  v.  Kan- 
sas City  &c.  R.  Co.,  144  1-cd.  622. 
Mandamus  was  held  proper  in 
State  V.  Grand  Island  &c.  R.  Co., 
31  Nebr.  209,  47  N.  W.  857.  And 
sec  as  to  issuing  execution.  State 
V.  Withrow  (Mo.),  24  S.  W.  638. 
Where  an  express-  promise  to  pay 
is  made  in  order  to  induce  the 
land-owner  to  discontinue  proceed- 
ings for  the  assessment  of  dam- 
ages such  promise  may  be  made 
the  basis  of  an  action.  Plott  v. 
Western  X.  Car.  R.  Co.,  65  N.  Car. 
74. 

11  Indiana  Central  R.  Co.  x.  Bo- 
den,  10  Ind.  96:  Cogswell  v.  Essex 
Mill  Corp.,  6  Pick.  (Mass.)  94.  See 
also  Archer  v.  Board,  128  Fed.  125. 
Where  consequential  damage  re- 
sults to  property  which  is  not  tak- 
en within  the  meaning  of  the  stat- 
ute for  assessment  of  damages,  but 
for  which  the  constitution  requires 
that  compensation  shall  be  made 
the  land-owner  may  recover  dam- 
ages in  a  common  law  action.  Bur- 
lington &c.  R.  Co.  V.  Reinhackle, 
15  Nebr.  279,  18  N.  W.  69,  48  Am. 
Rep.  342:  Railroad  Co.  v.  Hamble- 
ton.  40  Oliio  St.  496:  Prntzman  v. 
Tndianai)o]is  &c.  R.  Co.,  9  Ind.  467. 
68  -Am.  Dec.  650;  Johnson  v.  Park- 
ersburg,  16  W.  Va.  402,  21  Am. 
Rep.  779:  Taylor  v.  Aletropob'fin 
EI.  R.  Co.,  50  N.  Y.  Supr.  Ct.  311: 
Graftfui  V.  Baltimore  &c.  R.  Co., 
21    Fed.  309. 


§1350 


RAILROADS 


1022 


was  wrongl'ul.  the  land-owner  may  aflfirm  the  taking  and  sue 
lor  compensation,"  and  a  recovery  in  such  a  suit  vests  the  right 
to  the  lands  in  the  defendant."  It  is  generally  held,  however, 
that  where  the  statute  authorizing  a  railroad  company  to  take 


12  Evan5ville  &c.  R.  Co.  v.  Nye. 
113  Ind.  223,  15  X.  E.  261:  Indiana 
&c.  R.  Co.  V.  -Allen,  113  Ind.  581, 
15  N.  E.  446.  But  see  Anthony 
V.  Granger.  22  R.  I.  359,  47  All. 
1091.  Or  he  may  sue  in  trespass, 
in  which  case  in  some  jurisdic- 
tions the  recovery  is  limited  to  the 
damages  accrued  when  the  action 
was  brought,  and  another  suit  maj" 
be  prosecuted  for  a  continuance 
of  the  trespass.  Carl  v.  Sheboygan 
&c.  R.  Co.,  46  Wis.  625.  1  X.  W. 
295:  Gulf  &c.  R.  Co.  v.  Helsley.  62 
Tex.  593:  Uline  v.  Xew  York  Cen- 
tral &c.  Co.,  101  X.  Y.  98.  4  X.  E. 
536.  54  .\m.  Rep.  661;  Dickson  v. 
Chicago  &c.  R.  Co.,  71  Mo.  575: 
Ford  V.  Santa  Cruz  R.  Co..  59  Cal. 
290.- 

"  Gulf  Coast  &c.  R.  Co.  v.  Dona- 
boo.  59  Tex.  128:  Wichita  &c.  R. 
Co.  V.  Fechheimer.  36  Kans.  45.  12 
Pac.  362;  Jamison  v.  Springfield. 
53  Mo.  224.  .\]\  damages,  past, 
present  and  fuf^ire.  «hr>J!  he  pr- 
eluded   in    the 

action.      Stodg!  _ 

R.  Co.,  53  Iowa  341.  5  X.  W.  495: 
Chicago  &c.  R.  Co.  v.  Maher,  91 
III.  312:  Chicago  &c.  R.  Co.  v. 
Loeb.  118  111.  203.  8  X.  E.  460.  59 
Am.  Rep.  341  and  note:  Van  Ors- 
dol  V.  Burlington  &c.  R.  Co..  56 
Iowa  470.  9  X.  W.  379:  Miller  v. 
Keokuk  R.  Co..  63  Iowa  680.  16 
X.  E.  567:  Kansas  Pac.  R.  Co.  v. 
Mihlman.  17  Kans.  224:  Central 
Branch  R,  Co.  v.  Andrews,  26 
Kans.    702:    Elizabethtown    &c.    R. 


Co.  V.  Combs.  10  Bush.  (Ky.)  382, 
19  .A.m.  Rep.  67:  Jeflfersonville  &c. 
R.  Co.  V.  Esterle,  13  Bush.  (Ky.) 
667:  Fowle  v.  Xew  Haven  &c.  Co., 
112  Mass.  334.  17  .\m.  Rep.  106: 
Baldwin  v.  Chicago  &c.  R.  Co..  35 
Minn.  354.  29  X.  W.  5:  Troy  v. 
Cheshire  R.  Co.,  23  X.  H.  83,  55 
.\m.  Dec.  177:  Texas  &c.  R.  Co.  v. 
Long.  1  Tex.  .\pp.  Civ.  Cas.  281. 
See  also  Zimmerman  v.  Kansas 
City  &c.  R.  Co..  144  Fed.  622, 
where  it  is  said  that  the  property 
owner  "had  a  right  to  waive  the 
trespass  and  commence  his  action 
in  the  district  court,  the  same  as 
he  might  have  done  had  formal 
:  -  "ss    been     taken     bj-     the 

r  <mpany  and  he  had  been 

dissaiisried  with  the  award  of  the 
commissioners  'to  recover  com- 
pensation for  all  the  damages 
which  he  sustained  bj-  reason  of 
the  permanent  taking  and  appro- 
f  the  right  of  way  by 
•ad  company.*  Central 
h  &c.  R.  Co.  V.  .Andrews,  26 
..  -.  702,  710;  Cohen  v.  St.  Louis 
&c.  R.  Co.,  34  Kans.  158,  8  Pac. 
138.  55  Am.  Rep.  242;  Wichita  &c. 
R.  Co.  V.  Fechheimer.  36  Kans.  45. 
12  Pac.  362:  United  States  v.  Great 
Falls.  Mfg.  Co..  112  U.  S.  645,  5 
Sup.  Ct.  306,  28  L.  ed.  846."  The 
court  also  held  that  such  judgment 
was  conclusive  against  a  successor 
company  which  purchased  the  rail- 
road under  foreclosure  proceed- 
ings and  that  it  could  only  hold  the 
land    subject    to    the    condition    of 


1023 


REMEDIES   OF    L-VXD-OWXERS 


§1350 


the  l?nds  and  other  property-  of  private  individuals  ?  a 

mode  by  which  the  owner  may  enforce  payment  of  h:s  c::.niag^e5. 
this  remedy  is  exclusive  of  all  others/'*  The  general  rule  is  that 
if  the  statute  authorizes  the  company  alone  to  have  the  damages 
assessed  under  its  provisions,  or  makes  it  the  dut\-  of  the  com- 
pany so  to  do.  a  land-owner  may  bring  an  action  for  any  dam- 
ages that  are  not  presented  to  the  commissioners  for  assessment 


pacing  such  judgment.  Citing 
Pfeiter  v.  Sheboygan  &c.  R.  Co.. 
18  Wis.  155.  86  Am.  Dec.  751:  Chi- 
cago &c.  R.  Co.  V.  Galey,  141  Ind. 
360.  39  X.  E.  925:  Rio  Grande  &c. 
Ry.  Co.  V.  Ortiz.  75  Tex.  602.  12 
S.  \V.  1129:  Oregon  v.  Memphis 
&c.  R.  Co..  51  Ark.  235.  11  S.  W. 
96:  Drury  v.  Midland  R.  Co..  127 
Mass.  571:  Bridgman  v.  St.  Johns- 
bury  &c.  R.  Co..  58  Vt.  198.  2  Atl. 
467. 

"  Cairo    &c.    R.    C".    v.    Turner. 

31  Ark.  494.  25  -\m.  Rep.  564: 
Johnson   v.    St.    Louis    &c.   R.    Co.. 

32  Ark.  758:  Ohio  &c.  R.  Co.  v. 
Thillman.  143  111.  127.  32  X.  E. 
529,  36  Am.  St.  359:  Lafa\-etie  &c. 
R.  Co.  v.  Smith,  6  Ind.  249:  Le\-is- 
ton  V.  Junction  R.  Co..  7  Ind.  597: 
!Mason  v.  Kennebec  &c.  R.  Co.. 
31  Maine  215:  Williams  v.  Camden 
&c.  R.  Co..  79  Maine  543.  11  Atl. 
600:  Hazen  v.  Essex  Co..  12  Cush. 
(.Mass.*  475:  Stevens  v.  Proprie- 
tors Middlesex  Canal.  12  Mass. 
466:  Brickett  v.  Haverhill  Aqueduct 
Co..  142  Mass.  394.  8  X.  E.  119: 
Brown  v.  Beatty.  34  Miss.  227.  69 
Am.  Dec.  389:  .\ldrich  v.  Cheshire 
R.  Co.,  21  X.  H.  359.  53  Am.  Dec. 
212:  Hurniker  v.  Contoocook  Val- 
ley R.  Co..  29  X.  H.  146:  .\llen  v. 
Wilmington  &c.  R.  Co..  102  X.  Car. 
381.  9  S.  E.  4:  Land  v.  Wilming- 
ton &c.  R.  Co..  107  X.  Car.  72.  12 


S.  E.  125:  Hueston  v.  E^i  ..  vi.. 
R.  Co..  4  Ohio  St.  685.  Little 
Miami  &c.  R.  Co.  v.  WTiitacre.  8 
Ohio  St.  590:  Knori  v.  German- 
town  R.  Co..  5  Wharton  (Fa.)  256: 
Cumberland  Valley  R.  Co.  v.  Mc- 
Lanahan.  59  Pa.  St.  23:  Fehr  t. 
Schuylkill  Xav.  Co..  69  Pa.  St.  161 : 
^McLaughlin  r.  Charlotte  &c.  R. 
Co..  5  Rich.  L.  (S.  Car.>  583:  Col- 
cough  V.  Xash\nlle  &c.  Co..  2  Head 
(Tenn.)  171:  Mitchell  v.  Franklin 
&c.  Tnrnp.  Co..  3  Humph.  (Tenn.'^ 
456.  See  also  Black  Hills  &c.  Ry. 
Co.  v.  Tacoma  &c.  Co..  129  Fed. 
312.  But  where  there  is  no  rem- 
edy pro\-ided  by  statute  or  the  in- 
jurA"  is  caused  bj-  negligence  the 
common  law  remedj-  may  be  in- 
voked. Indiana  &c.  R.  Co.  v.  Bo- 
den.  10  Ind.  96:  Hall  v.  Pickering. 
40  Maine  548:  Drady  v.  De> 
Moines  &c.  R.  Co..  57  Iowa  395. 
10  X.  W.  754.  14  Am.  &  Eng.  R. 
Cas.  130:  Atlantic  &c.  R.  Co.  v. 
Fuller.  48  Ga.  423:  Kansas  &c.  R. 
Co.  V.  Hopkins.  18  Kans.  494.  See 
Cohen  V.  St.  Louis  &c.  R.  Co..  34 
Kans.  158.  8  Pac.  138.  55  .\m.  Rep. 
242;  Grand  Rapids  &c.  R.  Co.  v. 
Heisel.  47  Mich.  393.  11  X.  W.  212: 
Ohio  &c.  R.  Co.  V.  Wachter.  123 
111.  440.  15  X.  E.  279.  5  .\m.  St. 
532  and  note.  34  Am.  &  Eng.  R. 
Cas.  194:  St.  Louis  &c.  R.  Co.  v. 
Brown.  34  111.   -A.pp.   5-^2. 


§  1351 


KAILKOADS 


1024 


within  a  reasonable  time.''"  Under  the  constitution  of  many  of 
the  states  the  corporation  is  required  to  procure  an  assessment 
•  »f  the  (hima^es,  and  to  pay  or  tender  the  same  before  it  acquires 
anv  riy;hts  in  the  land  taken  by  condemnation  other  than  those 
of  a  mere  trespasser.  But  where  the  land-owner  waives  the 
condition  precedent  and  permits  the  corporation  to  construct 
its  road  under  a  parol  license,  the  ride  is  that  he  can  afterward 
onlv  maintain  an  action  for  the  damages  that  should  have  been 
aAxarded.^" 

§1351(1049).  Remedies  of  land-owner  —  Generally.  —  The 
general  rule  is  that  where  the  remedy  by  appeal  from  the  pro- 
ceedings is  provided  all  questions  which  could  be  litigated  on 
such  appeal  must  be  so  litigated/'  but  there  are  many  questions 


'■' Cairo  &c.  R.  Co.  v.  Trout.  32 
Ark.  17:  Bcntonville  R.  Co.  v.  Ba- 
ker. 45  Ark.  252;  Denslow  v.  Xew 
Haven  &c.  R.  Co.,  16  Conn.  98; 
Kward  V.  Lawrenceburgh  &c.  R. 
Co.,  7  Tnd.  711;  Kansas  Pacific  R. 
Co.  V.  Streoter,  8  Kans.  133;  Nich- 
ols V.  Somerset  &c.  R.  Co.,  43 
Maine  356;  Gowen  v.  Penobscot 
R.  Co.,  44  Maine  140;  Pcttibone  v. 
LaCrosse  &c.  R.  Co.,  14  Wis.  443; 
.Sherman  v.  Milwaukee  &c.  R.  Co., 
40  Wis.  645.  And  wliere  damage 
is  done  for  wliich  the  statute  fails 
tf)  provide  an  assessment  of  com- 
pensation the  land-owner  may  be 
allowed  his  common  law  remed}'. 
Williams  v.  Camden  &c.  R.  Co., 
7<>  Maine  543.  11  Atl.  600;  Clapp 
V.  Manter,  78  Maine  358,  5  At). 
77.^:  Dean  v.  Colt.  99  Mass.  480; 
Halsey  v.  Lehigh  Valley  R.  Co.. 
45  X.  J.  L.  26;  Cator  v.  Board  of 
Works  &c.,  34  L.  J.  Q.  R.  74;  Im- 
perial Gas-Light  &c.  Co.  v.  Broad- 
bent,  7  H.  L.  Cases,  600. 

1"  Conger    v.    Burlington    &c.    R. 


Co.,  41  Iowa  419;  Baltimore  &c.  R. 
Co.  v.  Algire,  63  Md.  319,  65  Md. 
:i37,  3  Atl.  293;  Sherman  v.  Mil- 
waukee &c.  R.  Co.,  40  Wis.  645. 
Where  it  was  alleged  that  a  land- 
owner liad  waived  his  e(|uitab]e 
lien  on  land  taken  for  a  railroad 
right  of  way  by  permitting  the 
oompanj-  to  construct  its  line  on 
the  land  before  payment  of  the 
award,  such  waiver  was  complete 
when  the  line  was  constructed,  and 
was  not  affected  by  mere  lapse  of 
time.  Southern  R.  Cn.  v.  Gregg, 
101  Va.  308.  43  S.  K.  570.  See  ante, 
§§    1174.    1285. 

'"  .Kn  injunction  will  not  be 
granted  to  restrain  the  railroad 
company-  from  taking  possession 
of  land  b)^  authority  of  proceed- 
ings that  were  erroneous.  Such 
errors  must  be  corrected  bj'  an  ap- 
peal or  writ  of  certiorari.  Phifer 
V.  Carolina  Central  R.  Co.,  72  N. 
Car.  433;  Brown  v.  Beatty,  34  Miss. 
227.  69  Am.  Dec.  389;  Tharp  v. 
Witham,    65    Iowa    566,    22    N.    W. 


1025 


REMEDIES  OF   LAXD-OWXERS 


§  1351 


which  do  not  arise  on  ai)peal.  It  may  be  said,  <(enerally,  that  in 
the  absence  of  a  statute  controlHng-  the  procedure  that  one  whose 
hmds  are  trespassed  upon  by  a  railroad  company  has  a  right  in 
a  proper  case  to  sue  for  possession,  or  to  enjoin  the  continuance 
of  the  use  of  tlie  hind  by  the  railroad  company,  or  for  damages, 
or  to  institute  condemnation  proceedings.^**  One  or  more  of 
these  remedies  is  open  to  him  and  in  some  instances  he  may 
have  an  election.  Thus  an  action  for  ejectment  may  be  main- 
tained where  the  railroad  company  obtains  possession  pending 
an  appeal  by  depositing  the  damages  awarded  by  the  commis- 
sioners, but  fails  to  pay  an  additional  sum  awarded  by  the  jury 
on  appeal."  for  that  matter  is  not  involved  in  the  appeal  frcmi 


(ill.  This  doctrine  has  been  ap- 
plied where  condemnation  proceed- 
ings of  which  the  land  -  owner 
was  duly  notified  resulted  in  no 
damages  at  all  being  awarded  to 
him.  Powell  v.  Clelland.  82  Ind. 
24;  Frevert  v.  Finfrock,  31  Ohio 
St.  621.  The  remedy  by  appeal  or 
certiorari  will  be  considered  in  the 
next  chapter. 

18  Clark  V.  Wabash  R.  Co.  132 
Iowa  11.  109  N.  W.  309.  See  gen- 
erally Hughey  v.  Walker,  71  Ark. 
644,  IZ  S.  W.  1093;  McKennon  v. 
St.  Louis  &c.  R.  Co.,  69  Ark.  104, 
61  S.  W.  383  (statutory  remedy 
exclusive  and  precludes  eject- 
ment): Mitchell  V.  Chicago  &c.  R. 
Co.,  265  111.  300,  106  N.  E.  833; 
Illinois  &c.  R.  Co.  v.  Hoskins,  80 
Miss.  730,  Z2  So.  150,  92  Am.  St. 
612;  Andrews  v.  Delhi  &c.  Tel.  Co.. 

66  App.  Div.  616,  11  N.  Y.  S.  1129, 
affirming  36  :\Iisc.  23,  12  N.  Y.  S. 
50;    Peck    v.    Schenectady    R.    Co., 

67  App.  Div.  359,  12,  N.  Y.  S.  794, 
judgment  modified  in  170  N.  Y. 
298,  63  N.  E.  357  (injunction  to 
restrain  unauthorized  occupation 
of  street) ;   St.   Louis  &c.   R.  Co.  v. 


Grayson  Co.,  31  Tex.  Civ.  App. 
611,  17>  S.  W.  64.  In  North  Caro- 
lina it  is  held  that  where  land  is 
taken  by  a  railroad  company  under 
a  statute  authorizing  it  to  actiuire 
a  right  of  way,  and  providing  for 
the  assessment  of  compensation  by 
application  to  the  clerk  of  the 
superior  court  and  the  appoint- 
ment of  commissioners  therefor, 
the  compensation  can  not  be  re- 
covered by  an  action  of  ejectment. 
Dargan  v.  Carolina  &c.  R.  Co.,  131 
N.  Car.  623,  42  S.  E.  979.  It  is 
rather  broadly  held  by  the  su- 
preme court  of  Utah  that  a  part}' 
whose  property  is  about  to  be 
specially  damaged  in  any  substan- 
tial degree  for  public  use  has  the 
same  rights  and  is  given  the  same 
remedies  for  the  protection  of  his 
property  from  the  threatened  in- 
jury as  would  be  accorded  hiin  if 
his  property  was  actually  taken 
and  appropriated  for  public  use. 
Stockdale  v.  Rio  Grande  &c.  R. 
Co.,  28  Utah  201.  11  Pac.  849. 

19  Lake  Erie  &c.  R.  Co.  v.  Kin- 
sey,  87  Ind.  514;  Levering  v.  Phil- 
adelphia   &c.    R.    Co..    8    W.    &    S. 


§  i:i")l 


i;  AII.IfOADS 


102G 


The  prt>cce(linj^'".  or  in  aii\"  other  case  wliere  the  company  entered 
without  the  owner's  consent  and  liolds  possession  without 
liLrht.-"  In  some  cases  the  owner's  consent  has  heen  held  to  lie 
immaterial,  where  it  was  i;i\en  in  return  for  promises  which  the 
railroad  comi)any  has  failed  to  lullill,-'  hut  many  cases  hold  that 
where  a  land-owner  consents  to  the  construction  of  valuable 
public  works  on  his  land,  he  is  estop])ed  to  sue  for  the  recovery 


(Pa.)  459;  St.  Joseph  .^c.  R.  Co.  v. 
Callender,  13  Kans.  496;  White  v. 
Wabash  &c.  R.  Co.,  64  Iowa  281, 
20  N.  W.  436;  Kanne  v.  Minneapo- 
lis &c.  R.  Co.,  30  Minn.  423,  15  N. 
W.  871.  Where  the  company  aban- 
dons the  proceedings  pending  an 
appeal,  and  after  it  has  obtained 
possession,  an  action  of  ejectment 
will  lie.  Kiecher  v.  Killbuck 
Tnrnp.    Co.,   33   Ind.   333. 

-"  See  McKennon  v.  St.  Louis 
itc.  R.  Co.,  69  Ark.  104.  61  S.  W^ 
383;  White  v.  Wabash  &c.  R.  Co.. 
64  Towa  281,  20  N.  W.  436;  Ruck- 
waltcr  V.  .\tchison  &c.  R.  Co..  64 
Kans.  403,  67  Pac.  831;  Pfaender 
V.  Chicago  &c.  R.  Co.,  86  ^Minn. 
218,  90  N.  W.  393;  Illinois  Cent. 
R.  Co.  V.  Hoskins,  80  Miss.  730.  32 
So.  150.  92  Am.  St.  612;  Owen  v. 
St.  Paul  &c.  R.  Co.,  12  Wash.  313. 
41  Par.  44:  Kuhl  v.  Chicago  &c.  R. 
Co..  101  Wis.  42.  77  N.  W.  155. 
The  owner  of  the  full  equitable 
title  is  not  bound  bj^  proceedings 
against  the  holder  of  the  naked 
legal  title.  Kansas  Pac.  R.  Co.  v. 
McRratney,  12  Kans.  1.  A  rail- 
road company  holding  under  a 
lease  may  be  elected  upon  the  ex- 
piration or  fortciture  of  the  lease. 
Green  v.  Missouri  &c.  R.  Co.,  82 
Mo.  653;  Ilorton  v.  New  York 
Central  &c.  R.  Co..  12  Abb.  N. 
C.    (N.    Y.-)    30.      See    Bradley    v. 


Missouri  Pac.  R.  Co.,  91  Mo.  493, 
4  S.  W.  427.  In  Connelsville  &c. 
Co.  V.  Baltimore  &c.  R.  Co.,  216 
Pa.  309,  65  Atl.  669,  it  is  held  that 
where  a  railroad  company  takes 
land  without  compensation  it  can 
not  acquire  title  by  adverse  pos- 
session, and  that  the  land-owner 
may  maintain  ejectment,  but  that 
an  execution  under  a  judgment  in 
his  favor  will  be  stayed  to  allow 
condemnation  proceedings.  See 
also  Covert  v.  Pittsburg  &c.  R. 
Co.,  204  Pa.  St.  341,  54  Ad.  170; 
Oliver  v.  Pitt.sburg  &c.  R.  Co..  131 
Pa.  St.  408,  19  Atl.  47.  17  Am.  St. 
814. 

-^  Hooper  v.  Columbus  (!v;c.  R. 
Co..  78  Ala.  213;  Philadelphia  &c. 
R.  Co.  V.  Cooper.  105  Pa.  St.  239. 
Some  courts  have  held  that  exe- 
cution on  a  judgment  of  ejectment 
against  a  railroad  company  for 
lands  necessary'  in  its  operation 
should  be  stayed  a  reasonable  time 
to  enable  the  corporation  to  ac- 
quire the  land  b\-  condemnation, 
and  that  a  court  of  equity  may 
interfere  by  injunction  to  compel 
such  stay.  Pittsburg  &c.  R.  Co. 
V.  Jones,  59  Pa.  St.  433:  Justice  v. 
Nesquchoning  V.  R.  Co..  87  Pa. 
St.  28;  Pittsburg  &c.  R.  Co.  v. 
Bruce,  102  Pa.  St.  23;  Conger  v. 
Burlington  &c.  R.  Co..  41  Iowa 
419. 


1027 


REMEDIES   OP   LAND-OWXERS 


§1351 


of  the  land,  and  is  limited  to  a  proceeding  to  recover  damages. -- 
I'he  fact  that  the  ])roi)erty  has  passed  into  the  hands  of  another 
company  than  that  by  which  the  wrongful  entry  was  made  does 
not  preclude  the  land-owner  from  recovering  in  ejectment,  where 
he  has  not  estopped  himself  by  acquiescence,  since  the  second 
company  can  acquire  no  rights  in  the  land  superior  to  those  of 


"  Evansville  &c.  R.  Co.  v.  Nye, 
113  Ind.  223,  15  N.  E.  261;  Indiana 
&c.  R.  Co.  V.  McBroom,  114  Ind. 
198,  15  N.  E.  831;  Provolt  v.  Chi- 
cago &c.  R.  Co.,  57  Mo.  256;  Ka- 
naga  v.  St.  Louis '  &c.  R.  Co.,  76 
Mo.  207;  New  York  &c.  R.  Co.  v. 
Stanley,  34  N.  J.  Eq.  55;  Paterson 
&c.  R.  Co.  V.  Kamlah,  42  N.  J.  Eq. 
93,  4  Atl.  444:  Tompkins  v.  Au- 
gusta &c.  R.  Co.,  21  S.  Car.  420; 
Texas  &c.  R.  Co.  v.  Jarrell,  60 
Tex.  267;  McAulay  v.  Western  Vt. 
R.  Co.,  22>  Vt.  311,  78  Am.  Dec. 
627;  Taylor  v.  Chicago  &c.  R.  Co., 
62,  Wis.  327,  24  N.  W.  84.  See  Rob- 
inson V.  Pittsburg  R.  Co.,  57  Cal. 
417;  Crescent  Canal  Co.  v.  Mont- 
gomery, 143  Cal.  248.  76  Pac.  1032, 
65  L.  R.  A.  940;  Bibber-White  Co. 
V.  White  River  &c.  R.  Co.,  131 
Fed.  995;  Charleston  &c.  R.  Co.  v. 
Hughes.  105  Ga.  1,  30  S.  E.  972; 
979  (citing  text) ;  Jacobs  v.  Kansas 
City  &c.  R.  Co..  134  La.  389,  64  So. 
150  (value  of  land  but  not  the  land 
itself);  Second  St.  Imp.  Co.  v. 
Kansas  City  &c.  Ry.  Co.,  255  Mo. 
519.  164  S.  W\  515  (same):  Rivard 
V.  ^Missouri  Pac.  Ry.  Co..  257  Mo. 
135,  165  S.  W.  763  (same).  If  the 
owner,  with  full  knowledge  of  the 
taking,  makes  no  objection,  but 
I)ermits  the  railroad  company  to 
locate  its  road  across  his  land,  and 
to  expend  large  sums  of  money  in 
the  construction  thereof,  he  will  be 


estopped  to  eject  it  for  non-pay- 
ment of  compensation.  New  Or- 
leans &c.  R.  Co.  V.  Jones,  68  Ala. 
48;  Roberts  v.  Northern  Pac.  R. 
Co.,  158  U.  S.  1,  IS  Sup.  Ct.  756, 
39  L.  ed.  873;  Bravard  v.  Cincin- 
nati &c.  R.  Co.,  115  Ind.  1,  17  N. 
E.  183;  Strickler  v.  Midland  R.  Co., 
125  Ind.  412,  25  N.  E.  455;  Buck- 
waiter  V.  Atchison  &c.  R.  Co..  64 
Kans.  403,  67  Pac.  831;  St.  Julian 
V.  Morgan's  La.  &c.  R.  Co.,  35  La. 
Ann.  924;  McAulay  v.  Western 
Vt.  R.  Co.,  2,Z  Vt.  311,  78  Am.  Dec. 
627.  But  see  Walker  v.  Chicago 
&c.  R.  Co.,  57  Mo.  275;  Crosby 
V.  Dracut,  109  :\Iass.  206.  The  fact 
that  a  railroad  company  is  actually 
occupying  a  right  of  way  across 
land  and  constructing  or  operating 
its  road  thereon,  is  constructive 
notice  of  its  rights  therein,  suffi- 
cient to  bind  a  subsequent  pur- 
chaser of  the  land.  Indiana  &c.  R. 
Co.  V.  McBroom,  114  Ind.  198,  15 
N.  E.  831;  Detroit  &c.  R.  Co.  v. 
Brown,  2>7  Mich.  533.  Where  the 
defendant  answered  claiming  title 
to  all  the  land  sued  for  and  dis- 
claiming title  to  no  part  thereof, 
it  was  held  immaterial  that  the 
evidence  showed  it  to  be  in  pos- 
session of  only  a  small  part  there- 
of. Colorado  Central  R.  Co.  v. 
Smith,  5  Colo.  160.  Acceptance  by 
the  land-owner  of  the  damages  de- 
posited    pending     an     appeal,     will 


§  1351 


RAILROADS 


1028 


jts  jifriintor.--'  Xor  docs  the  fact  that  title  is  licld  subject  to  an 
easement  deprive  the  land-owner  of  his  action.  Ejectment  may 
he  maintained  in  a  proper  case  by  the  owner  of  the  fee  ac^ainst 
a  railroad  company  which  hiys  its  tracks  in  a  street  in  wliicli 
his  interest  has  not  been  condemned,  and  the  fact  that  the  pubHc 
authorities  .i^^ranted  the  company  ])erniission  tcj  use  the  street  for 
ils  purpose  is  no  defense  to  the  action.-*  Any  one  liavini^  a 
vested  interest  in  land  unlawfully  taken  by  a  railroad  ccMn])any 
is  entitled  to  sue  in  trespass.     A  lessee. -•''  or  a  mortg'ai^'ee  holdinii^ 


estop  Iiini  to  prosecute  an  action 
of  ejectment  to  recover  the  land, 
even  though  the  proceedings  are 
reversed  on  appeal.  St.  Paul  &c. 
R.  Co.  v.  Karnes.  101   111.  402. 

-3  Lake  Erie  &c.  R.  Co.  v.  Grif- 
fin. 92  Tnd.  487:  Oilman  v.  She- 
boygan &c.  R.  Co.,  T,!  Wis.  317; 
Pfeifer  v.  Sheboygan  &c.  R.  Co.. 
18  Wis.  155,  86  .\m.  Dec."  751.  See 
also  Zimmerman  v.  Kansas  City 
&c.  R.  Co.,  144  Fed.  622.  Where 
the  receiver  of  an  insolvent  rail- 
road corporation  unlavvfulh'  an- 
I)ropriates  land  to  the  use  of  the 
corporation,  and.  after  the  dis- 
charge of  the  receiver,  the  corpor- 
ation resumes  control  of  the  rail- 
road, and  retains  possession  of 
and  uses  the  land,  the  owner  can 
maintain  an  action  to  recover  and 
for  damages.  P.loomfield  &c.  R. 
Co.  V.  Van  Slike.  107  Ind.  480,  8 
\.  E.  269.  Where  an  execution,  is- 
sued on  a  judgment  for  damages 
for  land  condemned  by  a  railroad 
was  returned  "no  property  found." 
but  the  company  entered  upon  the 
land  and  constructed  its  road  with- 
out objection  from  the  owner,  and 
afterward  leased  it  to  another  com- 
pany, it  was  held  that  the  land- 
owner could  not  maintain  an  action 
to   recover   the  land   from   the  les- 


see company  without  notice  to 
(|uit.  Chicago  &c.  R.  Co.  v.  Knox 
College.   34   111.   195. 

2*  Lozier  v.  New  York  &c.  R. 
Co..  42  Barb.  (N.  Y.)  465;  Car- 
penter V.  Oswego  &c.  R.  Co.,  24 
N.  Y.  655;  Wager  v.  Troy  Union 
R.  Co..  25  X.  Y.  526;  Weyl  v. 
Sonoma  V.  R.  Co..  69  Cal.  202,  10 
Pac.  510.  Put  in  Edwardsville  R. 
Co.  v.  Sawyer,  92  III.  Zll ,  it  was 
held  that  its  occupation  of  a  public 
street  is  a  matter  between  the  rail- 
road company  and  the  public  au- 
thorities, and  can  not  be  (juestioned 
by  the  land-owner  in  ejectment. 
(Compare  with  this  case,  however, 
the  recent  case  of  Mitchell  v.  Chi- 
cago &c.  Ry.  Co.,  265  III.  300.  106 
X.  E.  833.)  See  also  ^Montgomery 
v.  Santa  Ana  &c.  R.  Co..  104  Cal. 
186.  7,1  Pac.  786,  25  L.  R.  A.  654. 
43  Am.  St.  89.  Where  possession 
is  taken  without  payment  or  ten- 
der of  compensation,  as  required 
by  the  constitution,  ejectment  will 
lie  even  though  the  wrongdoer  is 
a  nitniici]ial  corporation,  where 
there  is  no  crmsent  or  element  of 
estoppel,  Flynn  v.  Beaverhead 
County.  49  Mont.  347.  141  Pac.  673. 

25  Pennsylvania  R.  Co.  v.  Eby. 
107  Pa.  St.  166;  Baltimore  ^c.  R. 
Co.  v.  Thompson,  10  Md.  16. 


3029  KKMKniKs  OP  LAxn-owxKKR  §  1:}")1 

the  legal  title,-"  may  maintain  trespass  for  an  injur\'  to  his  ri.i^^hts 
although  the  railroad  company  has  acquired  title  from  the  f)\vner 
of  the  fee.  Where  the  railroad  encroaches  upon  land  adjoining 
that  which  it  has  condemned.-'  or  occupies  a  street  or  highway 
without  making  compensation,-*^  it  is  liable  in  trespass  to  the 
owner  of  the  fee  in  such  land.-''  AMiere  the  railroad  company 
took  possession  of  lands  under  proceedings  which  were  subse- 
quently declared  void  for  want  of  proper  notice,  and  immedi- 
ately after  the  first  judgment  was  set  aside  it  proceeded  to  con- 
demn the  lands  in  a  lawful  manner,  it  was  held  that  the  railroad 
company  was  not  liable  to  the  land-owner  in  a  suit  for  trespass 
for  the  damage  done  prior  to  the  second  judgment  of  condem- 
nation, but  that  the  assessment  of  damages  covered  all  injuries 
to  the  defendant's  possession. '°     It  is  held  that  where  the  entry 

2"  Wilson     V.     European     &c.     R.  -^  See    Grand   Rapids   &c.   R.   Co. 

Co.,  61  Maine  358.  v.   Heisel.  47  Mich.  393.   11   N.  W. 

27Brigham  V.  Agricultural  ISranch  212;  Chicago  v.  Jackson,  196  111. 
R.  Co.,  1  Allen  (^lass.)  316:  Ha-  496,  63  N.  E.  1013,  1135.  affirming 
zen  V.  Boston  &c.  R.  Co..  2  Gray  88  111.  App.  130.  But  see  reason- 
(Mass.)  574;  Eaton  v.  European  ing  of  the  court  in  Edwardsville 
&c.  R.  Co.,  59  Maine  520.  8  Am.  R.  Co.  v.  Sawyer,  92  111.  Zll . 
Rep.  430.  See  New  Orleans  &c.  so  Dunlap  v.  Toledo  &c.  R.  Co., 
R.  Co.  V.  Brown,  64  ^Fiss.  479.  1  50  ^lich.  470.  15  N.  W.  555.  Where 
So.  687;  Second  St.  Imp.  Co.  v.  the  railroad  company  took  posses- 
Kansas  City  &c.  R.  Co..  255  ]\[o.  sion  under  an  erroneous  order  per- 
519,    164   S.   W.   515.  mitting   it   to   occupy  the    land   be- 

28  Indianapolis  &c.  R.  Co.  v.  fore  making  compensation  as  re- 
Hartley,  67  III.  439;  Starr  v.  Cam-  quired  by  the  constitution,  it  was 
den  &c.  R.  Co.,  24  N.  J.  L.  592;  held  that  the  entry  was  justifiable 
Trustees  v.  Auburn  &c.  R.  Co..  3  and  did  not  subject  the  railroad 
Hill  (N.  Y.)  567;  Mahon  v.  New  cotnpany  to  an  action  for  tres- 
York  Central  &c.  R.  Co..  24  N.  Y.  pass.  Walker  v.  Likens,  24  ^\o. 
658;  Sherman  v.  Milwaukee  &c.  R.  298.  Where  the  owner,  at  the  time 
Co.,  40  Wis.  645;  Blesch  V.  Chicago  of  the  entry  and  construction  of 
&c.  R.  Co.,  43  Wis.  183.  See  also  the  railroad  under  authority  of  a 
Fairchild  v.  Oakland  &c.  R.  Co.,  void  condemnation  proceeding. 
176  Cal.  629,  169  Pac.  388;  Horton  sold  the  land  to  another  in  whose 
V.  Grand  Rapids  &c.  R.  Co.,  199  hands  it  was  afterwards  con- 
Mich.  472,  165  N. W.  653  (holding  demned.  the  land-owner  was  held 
it  may  be  enjoined).  entitled  to  recover  from  such  pur- 


§  1352  KAILUOADS  1030 

of  the  railroad  company  was  clearly  wronj^ful.  the  fact  tint  the 
l.-uuls  were  subsequently  condcnined  is  no  l)ar  to  an  actit)n  for 
the  trespass,  even  though  damages  for  the  trespass  were  er- 
roneously includetl  in  the  award  of  compensation.''^  It  hris  also 
been  held  that  the  measure  of  damages  in  an  action  of  trespass 
against  a  railroad  company  for  unlawfully  constructing  its  road 
n])iin  land  belonging  to  another  is  his  damages  already  accrued, 
and  i)unitive  damages  in  case  the  circumstances  warrant  it.'- 

§  1352  (1049a).  Remedies  of  land-owner  —  Injunction. —  In- 
junction will  usually  lie  where  a  railroad  company  or  even  a 
municipal  corporation  threatens  and  is  about  to  take  possession 
of  real  property  which  it  has  no  power  to  condemn  or  without 

chaser  the  compensation  paid  on  }kIinneapoIis  &c.  R.  Co.,  29  Minn. 
such  second  condemnation,  since  256;  Oregon  R.  Co.  v.  Barlow,  3 
tlie  purchaser  must  be  held  to  have  Ore.  311;  Blodgett  v.  Utica  R.  Co.. 
taken  the  land  subject  to  the  dam-  64  Barb.  (N.  Y.)  580;  Chicago  &c. 
age  already  done  at  the  time  of  R.  Co.  v.  Davis,  86  III.  20.  The 
his  purchase.  McFadden  v.  John-  mere  pendency  of  a  suit  to  con- 
son,  12  Pa.  St.  335.  13  Am.  Rep.  demn  lands  is  no  defense  to  an 
681.  action  for  a  former  trespass.  Co- 
31  Pierce  v.  Worcester  &c.  R.  burn  v.  Pacific  Lumber  Co.,  46 
Co.,  105  Mass.  199;  Harrington  v.  Cal.  31.  Sec  also  Blackwell  Lum- 
St.  Paul  &c.  R.  Co.,  17  Minn.  215;  bcr  Co.  v.  Empire  Mill  Co.,  29 
Central  R.  Co.  v.  Hetfield,  29  N.  Idaho  421,  160  Pac.  265;  Norfolk 
J.  L.  206.  Damages  arising  from  a  &c.  R.  Co.  v.  A.  C.  Allen  &  Son, 
former  trespass  are  no  part  of  the  122  Va.  603,  95  S.  E.  406. 
damages  for  which  compensation  ^-  .Anderson  &c.  R.  Co.  v.  Ker- 
must  be  made  in  proceedings  to  nodlo,  54  Tnd.  314.  A  railroad 
condemn  land.  Proetz  v.  St.  Paul  comp.iny  which  takes  possession 
&c.  R.  Co.,  17  Minn.  163;  McClin-  of  land  after  the  owner  has  ob- 
ton  V.  Pittsburg  &c.  R.  Co..  66  Pa.  taincd  possession  thereto  pursuant 
St.  404;  Selma  &c.  R.  Co.  v.  Keith,  to  a  judgment  in  action  of  trespass 
53  Ga.  178;  Missouri  &c.  R.  Co.  v.  (juare  clausum  fregit  against  the 
Ward,  10  Kans.  352;  Blodgett  v.  company,  is  liable  in  an  action  (.f 
Utica  &c.  R.  Co.,  64  Barb.  (N.  Y.)  trespass  for  the  second  entry. 
580.  And  the  fact  that  a  recovery  Illinois  &c.  R.  Co.  v.  Cobb,  82  III. 
has  been  had  for  the  trespass  does  183.  It  is  held  that  the  value  of 
not  lessen  the  damages  to  which  the  land  itself  can  only  be  recov- 
the  land-owner  is  entitled  in  a  suit  ered  by  proceedings  under  the 
to    condemn    the    land.      Leber    v.  statute. 


1081 


REMEDIES  OF   LAX1)-()\V.\  KRS 


§  1352 


attempting-  to  condemn  it.'"  It  is,  indeed,  often  an  appropriate 
remedy  for  the  protection  of  the  land-owner  against  wrongful 
proceedings  conducted  under  color  of  the  power  of  eminent 
domain.  It  may  be  said  at  the  outset  that  injunction  does  not 
lie  in  cases  where  there  is  a  right  of  appeal  except  where  the 
proceedings  are  void.  But  where  there  is  no  adequate  remedy 
at  law  and  the  proceedings  are  void  for  the  reason  that  there 
was  no  jurisdiction,  injunction  is  held  by  many  of  the  courts 
to  be  an  appropriate  remedy.  The  rule  sanctioned  by  authority 
is  that  even  if  the  proceedings  are  void  a  complainant  will  not 
be  granted  an  injunction  unless  he  shows  equity.^*  Where  a 
railroad  or  other  corporation  threatens  to  take  possession  of 
lands  and  construct  its  road  thereon  without  having  perfected 
its  right  of  entry  in  the  manner  provided  by  law,  it  may  be 
restrained  by  injunction  at  the  siiit  of  the  owner. ''•"'     This  relief 


^"'  St.  Louis  &c.  R.  Co.  V.  Tulsa, 
213  Fed.  87;  Johnston  v.  Delaware 
&c.  R.  Co.,  245  Pa.  St.  338,  91  Atl. 
618;  Roaring  Springs  Townsite  Co. 
V.  Paducah  &c.  Tel.  Co.  (Tex.  Civ. 
.\pp.),  164  S.  W.  50.  See  also  At- 
lanta &c.  R.  Co.  V.  Bradley,  141 
Ga.  740,  81   S.  E.  1104. 

^■i  Hamer  v.  Sears,  81  Ga.  288,  6 
S.  E.  810;  Williams  v.  Hitzie,  83 
Tnd.  303;  Woods  v.  Brown,  93 
Tnd.  164,  47  Am.  l^ep.  369;  Jones 
v.  Cullen,  142  Ind.  335,  40  N.  E. 
124;  Lininger  v.  Glenn,  33  Nebr. 
187,  49  N.  W.  1128;  Wilson  v. 
Shipman,  34  Nebr.  573,  52  N.  W. 
576.  33  Am.  St.  660;  Stokes  v. 
Knarr.  11  Wis.  389;  White  v.  Hin- 
ton.  3  Wyo.  753,  30  Pac.  953,  17 
L.  R.  A.  66.  Thus  it  has  been  held 
that  the  fact  that  a  court  in  con- 
demnation proceedings  may  make 
an  erroneous  ruling  does  not  en- 
title the  aggrieved  party  to  an  in- 
junction, but  the  remedy  is  by  ap- 
peal  from   the   ruling   if  authorized 


by  statute,  or,  if  not,  by  appeal 
from  the  final  judgment.  Boyd 
v.  Logansport  R.  &c.  Co.,  161 
Ind.  587,  69  N.  E.  398.  In 
Roberts  v.  West  Jersey  &c.  R.  Co., 
72  N.  J.  Eq.  326,  65  Atl.  460,  it 
was  held  that  an  injunction  should 
not  be  granted  in  a  suit  by  an 
owner  of  property  in  a  block 
through  which  an  elevated  railroad 
was  about  to  be  constructed,  cross- 
ing and  vacating  a  street  on  which 
complainant's  property  abutted, 
unless  complainant,  by  the  undis- 
puted facts  of  the  case,  and  accord- 
ing to  the  established  law  of  the 
state,  established  his  legal  private 
right  in  that  part  of  the  street 
which  would  be  vacated  by  the 
construction  of  the  road.  See  also 
Knoth  V.  Manhattan  R.  Co.,  187 
N.  Y.  273,  79  N.  E.  1015. 

35  Atlantic  &c.  R.  Co.  v.  Sea- 
board Air  Line  R.  Co.,  116  Ga. 
412,  42  S.  E.  761;  Bolton  v.  Mc- 
Shane,  67  Iowa  207,  25  N.  W.  135; 


1352 


RAILROADS 


10:52 


is  Irfqiu'iitly  ijranted  in  states  which  re(|uire  the  paxnicnt  of 
compensation  to  precede  the  taking  of  ])roperty  where  the  cor- 
I'oration  neglects  or  refuses  to  pay  or  deposit  the  just  com- 
pensation as  rc'(|uired  l)y  law."'  And  it  is  generally  a  pro])er 
itmcdy  in  cases  where  the  corporation  seeks  to  obtain  ])()sses- 
sion   of  private  property   under  color   of  eminent  domain   pro- 


Chicago  &c.  Bridge  Co.  v.  Pacific 
&c.  Co.,  36  Kans.  113,  12  Pac.  535; 
Piedmont  &c.  R.  Co.  'V.  Speelman, 
67  Md.  260.  10  Atl.  11,  293;  Frend 
V.  Detroit  &c.  R.  Co.,  133  Mich. 
413.  95  N.  VV.  559,  10  Det.  Leg.  N. 
250;  Lohman  v.  St.  Paul  &c.  R. 
Co.,  18  Minn.  174;  Spurlock  v.  Do- 
man,  182  Mo.  242,  81  S.  W.  412; 
Mettler  v.  Easton  &c.  R.  Co..  25 
\.  J.  Eq.  214;  Wagner  v.  Railwaj^ 
Co..  38  Ohio  St.  32;  Warner  v. 
Railroad  Co.,  39  Ohio  St.  70; 
Schaaf  v.  Cleveland  &c.  R.  Co.,  66 
Ohio  St.  215.  64  N.  E.  145;  Jarden 
V.  Philadelphia  &c.  R.  Co.,  3 
Whart.  fPa.)  502;  Riley  v.  Charles- 
t<in  Union  Station  Co.,  dl  S.  Car. 
84.  45  S.  E.  149;  Wilson  v.  D.  W. 
Alderman  &c.  Co.,  69  S.  Car.  176. 
48  S.  E.  81;  Field  v.  Carnarvon  &c. 
R.  Co.,  L.  R.  Eci.  Cas.  190.  Where 
the  use  of  a  street  by  a  raihva}' 
company  is  not  an  additional  ser- 
vitude, entitling  abutters  to  com- 
pensation, it  has  been  held  that  the 
latter  can  not  maintain  a  bill  to 
enjoin  the  operation  of  the  railway 
on  the  ground  that  tlie  company 
has  transcended  its  authorized 
powers,  since  it  is  amenable  for  an 
excessive  exercise  of  power  only 
to  the  state.  Rafferty  v.  Central 
Traction  Co..  147  Pa.  St.  579,  23 
Atl.  884.  30  Am.  St.  763  and  note. 
.Sec  also  Cincinnati  &c.  R.  Co.  v. 
Morgan  Co.,  143  Fed.  798. 


30  Northern  Pac.  R.  Co.  v.  St. 
I'aul  &c.  R.  Co.,  1  McCrary  (U. 
S.)  302;  Young  v.  Harrison,  6  Ga. 
130;  Chambers  v.  Cincinnati  &c. 
R.  Co.,  69  Ga.  320;  Shute  v.  Chi- 
cago &c.  R.  Co.,  26  111.  436;  Cobb 
V.  Illinois  &c.  R.  Co.,  68  111.  233; 
Cox  V.  Louisville  &c.  R.  Co.,  48 
Ind.  178;  Gates  v.  Colfax  Northern 
R.  Co..  177  Iowa  690.  159  N.  W. 
456;  Kirkendall  v.  Hunt.  4  Kans. 
514;  Western  &c.  R.  Co.  v.  Ow- 
ings,  15  Md.  199,  74  Am.  Dec.  563; 
New  Central  Coal  Co.  v.  George's 
Creek  &c.  Co..  1>1  ^\A.  537;  Stew- 
art V.  Raymond  R.  Co.,  7  S.  &  M. 
(Miss.)  568;  Cameron  v.  Board 
&c.,  47  :iliss.  264;  Ray  v.  Atchison 
&c.  R.  Co..  4  Ncbr.  439;  Ross  v. 
Elizabcthtown  &c.  R.  Co..  2  N.  J. 
Eq.  422;  Redman  v.  Philadelphia 
&c.  R.  Co..  },2>  N.  J.  Eq.  165;  Ve- 
rona, .\ppcal  of.  108  Pa.  St.  83; 
Parker  v.  East  Tennessee  Src.  R. 
Co..  13  Lea  (Tenn.)  669;  ALt^ou 
City  &c.  Co.  V.  Mason,  23  W.  \'a. 
211;  Shcpardson  v.  Milwaukee  &c. 
R.  Co.,  6  Wis.  605;  Bohlman  v. 
Green  Hay  &-c.  R.  Co..  30  Wis. 
105;  P.ohlman  v.  Green  P.ay  &-c.  R. 
Co.,  40  Wis.  157.  An  injunction 
will  issue  to  jirevent  the  continued 
occupation  of  land  wrongfully 
taken.  Cox  v.  Louisville  &c.  R. 
Co.,  48  Ind.  178;  Gay  v.  New  Or- 
leans Pacific  R.  Co.,  32  La.  Ann. 
277.      Where    a    railroad    company 


1033 


REMEDIES  OP  LAND-OWNERS 


§1352 


ceedings  \\hich,  for  any  reason,  are  void.^'  A  property  owner 
is  entitled  to  protection  in  his  property  rig-hts  as  against  those 
who  would  devote  to  ])ul)lic  use  property  not  legally  taken  for 
that  purpose,  and  should  not  be  driven  to  an  action  at  law'^**  to 


having  the  right  under  the  statute 
to  acquire  a  right  of  way  over  the 
track  of  another  railroad  coinpany 
h}-  condemnation,  is  about  to  cross 
the  track  of  such  other  company 
witliout  having  acquired  the  right 
in  any  way,  it  is  error  for  the  court 
to  provide,  in  a  suit  to  restrain 
sncli  crossing  that  the  defendant 
company  may  cross  the  track  of 
plaintiff  upon  condition  that  it  put 
in  a  certain  described  system  of 
switclie^.  Atlantic  &c.  R.  Co.  v. 
Seaboard  Air  Line  R..  116  Ga.  412, 
42  S.   E.  761. 

""  Frizell  v.  Rogers,  82  111.  161: 
Eruin  V.  Eulk,  94  Ind.  235:  Mc- 
Millan V.  ]]aker,  20  Kans.  SO;  Pied- 
mont &c.  R.  Co.  V.  Speelman.  67 
Md.  260.  10  Atl.  11,  293:  Lohman 
V.  St.  Paul  &c.  R.  Co..  18  ]\Iinn. 
174:  Rhine  v.  McKinney.  53  Tex. 
354:  Wren  v.  Walsh,  57  Wis.  98, 
14  N.  W.  902.  See  also  Southern 
R.  Co.  \.  Birmingham  &c.  R.  Co.. 
131  Ala.  663.  29  So.  191:  St.  Louis 
&:c.  R.  Co.  V.  Southwestern  Tel. 
&c.  Co..  121  Eed.  276.  Where  the 
power  of  the  corporation  to  con- 
demn land  has  been  exhausted,  it 
will  be  enjoined  from  a  subsequent 
entry  upon  other  lands.  Afoor- 
head  v.  Little  Afiami  R.  Co..  17 
Ohio  340.  Tn  a  proceeding  by  a 
land-owner  to  enjoin  the  construc- 
tion of  a  railroad  over  his  premises 
a  decree  ordering  him  to  institute 
proceedings  to  have  his  damages 
ascertained  is  improper,  as  such 
proceedings   must   be   instituted   b}' 


the  railway  corporation  in  the 
manner  required  by  the  statute 
providing  for  the  exercises  of  emi- 
nent domain.  Russell  v.  Chicago 
&c.  R.  Co.,  98  Til.  App.  347. 

^^  Western  &c.  R.  Co.  v.  Owings, 
15  Md.  199,  74  Am.  Dec.  563: 
Browning   v.    Camden    &c.    R.    Co.. 

4  N.  J.  Eq.  47;  Cobb  v.  Illinois  &c. 
R.  Co.,  68  111.  233;  Pennsylvania 
R.    Co.'s    Appeal,    115    Pa.    St.    514. 

5  Atl.  872:  Bolton  v.  McShane,  67 
Iowa  207,  25  N.  W.  135.  In' many 
of  the  cases  it  is  said  that  such 
an  interference  with  his  rights 
would  work  a  great  and  irreparable 
injury  to  the  property-owner,  in 
that  it  is  not  a  mere  temporary- 
and  fugitive  trespass,  but  is  a 
permanent  appropriation  of  the 
property.  Erwin  v.  Fulk,  94  Ind. 
235:  Carpenter  v.  Grisham,  59  Mo. 
247;  Bonaparte  v.  Camden  &c.  R. 
Co.,  1  Bald.  C.  C.  205.  But  where. 
for  any  reason,  it  would  be  inequi- 
table to  enjoin  a  further  occupa- 
tion of  the  land,  the  owner  will  be 
left  to  his  remedy  at  law.  Chesa- 
peake &c.  R.  Co.  V.  Patton,  5  W. 
Va.  234;  Nicholas  v.  Sutton.  22  Ga. 
369.  And  it  has  been  held  that 
where  a  railroad  company'  had  the 
ri'.rht  to  condemn  and  had  already 
taken  possession,  an  injunction 
would  not  be  granted  to  restrain 
the  completion  of  the  work,  even 
though  no  proceedings  to  condeinn 
had  been  commenced.  Lea  v. 
Louisville  &c.  R.  Co..  135  Tenn. 
560,  188  S.  W.  215. 


^352 


KAILKOADS 


1034 


(ihtain    redress.      Any    property    rights    in    lands,''"    bonds,*"    or 
water-courses/'  or  franchises/-  may  be  protected  by  injnnction 


3^*  Sidciicr  V.  Norristowii  &c. 
Turiip.  Co.,  2i  liul.  623;  Mcttlor  v. 
Easton  &c.  R.  Co.,  25  N.  J.  Eq. 
214;  Bolilinan  v.  Green  Bay  &c.  R. 
Co..  30  Wis.  105;  Russell  v.  Cliica- 
^^n  &c.  R.  Co.,  205  111.  155,  68  N. 
1{.  727.  In  those  states  in  wliicli  it 
is  held  that  an  owner  of  abutting 
l)ropcrty  is  entitled  to  compensa- 
tion fur  the  construction  of  a  rail- 
road in  the  street  in  front  of  his 
l)roperty,  it  is  also  held  that  he 
may  enjoin  anj"-  interference  with 
his  right  in  the  same  manner  that 
he  could  enjoin  the  occupation  of 
his  land.  Cox  v.  Louisville  &c.  R. 
Co..  48  Ind.  178;  Columbus  &c.  R. 
Co.  V.  Witherow.  82  Ala.  190,  3 
So.  23:  Rock  Island  &c.  R.  Co.  v. 
Johnson.  204  III.  488,  68  N.  E.  549; 
Schurmeier  v.  St.  Paul  &c.  R.  Co., 
10  -Minn.  82,  88  Am.  Dec.  59:  Har- 
rington V.  St.  Paul  &c.  R.  Co..  17 
Minn.  215;  Williams  v.  New  Vork 
Central  R.  Co..  16  N.  Y.  97,  69  Am. 
Dec.  651  and  note;  Washington 
Cemetery  Co.  v.  Prospect  Park  &c. 
R.  Co..  68  N.  Y.  591;  Henderson 
V.  New  York  Central  R.  Co.,  78 
X.  \.  423;  Paige  v.  Scheiiectadj' 
R.  Co.,  77  App.  Div.  571.  79  N.  Y. 
S.  266;  Zook  v.  Pennsylvania  R. 
Co..  206  Pa.  603,  50  Atl.  82;  Ford 
V.  Chicago  &c.  R.  Co..  14  Wis.  609, 
80  Am.  Dec.  791.  So  an  abutting 
owner  of  the  fee  in  a  public  street 
may  enjoin  a  steam  railroad  com- 
pany from  constructing  and  oper- 
ating its  road  in  such  street  to 
the  practical  exclusion  of  the  pub- 
lic, where  no  compensation  for  his 
interest  has  been  made,  though  the 


railroad  company  is  acting  under  a 
city  ordinance.  Pennsylvania  Co. 
V.  Bond,  99  111.  App.  535.  An  in- 
junction will  issue  at  the  instance 
of  an  abutting  owner  to  protect 
his  own  land  to  the  center  line  of 
tlie  road  from  tiie  burden  of  street 
raih-o;i(!  tracks,  though  his  neigh- 
bors on  tlic  opposite  side  have  con- 
srnud  to  tlie  use  of  their  lands  by 
such  company.  North  Pennsylva- 
nia R.  Co.  V.  Inland  Traction  Co., 
205  Pa.  579,  55  Atl-  774.  Wliere 
bill  is  brought  to  prevent  a  rail- 
road company  from  laying  a  siding 
in  a  street  in  any  other  manner 
than  in  accordance  with  the  estab- 
lislied  grade,  tlie  question  of  tlie 
l)ower  of  tlie  cit\'  to  grant  pi'rniis- 
sion  to  construct  such  siding  can 
not  be  considered.  Zook  v.  Penn- 
sylvania R.  Co.,  206  Pa.  603.  56  All. 
82. 

^0  Garwood  v.  New  York  il-c.  R. 
Co..  17  Hun.  (N.  Y.)  356;  Higgins 
V.  Flemington  Water  Co..  36  N.  J. 
ICq.  538:  Lux  v.  Haggin.  69  Cal. 
255,   10  Pac.  674. 

41  Waterman  v.  Buck.  58  A't.  519: 
Baltimore  v.  Warren  &c.  Co.,  59 
Md.  96;  Middleton  v.  Flat  River 
iiooming  Co.,  27  Mich.  533;  ftoly- 
oke  &c.  Co.  v.  Connecticut  River 
Co.,  22  Blatchf.  (U.  S.)  131.  See 
also  where  injunction  was  awarded 
a.gainst  discliarge  of  water  from 
roundhouse  on  to  adjoining  proji- 
erty.  Northern  Cent.  R.  Co.  v. 
Oldenburg,  122  Md.  236.  89  All. 
601. 

■•'  Denver  &c.  R.  Co.  v.  Denver 
City  R.   Co.,  2   Colo.  673;    Enfield 


1035 


REMEDIES   OP   LAND-OWNERS 


§  "^:^-"'>'-^ 


from  the  invasion  under  color  of  the  eminent  domain  power. 
But  where  the  corporation  has  taken  possession  in  good  faith, 
under  an  agreement  with  the  owner,  its  further  occupation  of 
the  land  will  not  be  enjoined  for  a  subsequent  violation  of  the 
agreement  unless  the  owner's  legal  remedies  are  shown  to  be 
inadequate.*-''  The  injunction  will  not  necessarily  be  refused  on 
the  sole  ground  that  the  company  had  commenced  the  construc- 
tion of  its  line  and  had  made  large  expenditures  in  the  under- 
taking.'**    Some  of  the  cases  hold  that  an  injunction  will  not  l)e 


Tn]]  Bridge  Co.  v.  Hartford  &c.  R. 
Co..  17  Conn.  40,  42  Am.  Dec.  716 
and  note;  Boston  &c.  R.  Co.  v. 
Saloni  &c.  R.  Co.,  2  Gray  (Mass.) 
1:  St.  Louis  &c.  R.  Co.  v.  North- 
western &c.  R.  Co.,  69  Mo.  65; 
Gifford  v.  New  Jersey  R.  Co.,  10 
N.  J.  Eq.  171:  Hudson  &c.  Co.  v. 
New  York  &c.  R.  Co.,  9  Paige 
(N.  Y.)  323.  See  also  Michigan 
Cent.  R.  Co.  v.  State.  148  Mich. 
151.  Ill  N.  W.  735.  One  railroad 
will  be  enjoined  from  crossing 
another  until  the  law  authorizing 
such  crossings  has  been  complied 
with.  Central  Vermont  R.  Co.  v. 
Woodstock  R.  Co.,  50  Vt.  452; 
Pennsylvania  R.  Co.'s  Appeal.  93 
Pa.  St.  150.  But  see  Grafton  v. 
Buckhannon  &c.  R.  Co.,  56  W.  Va. 
458,  49  S.  E.  532.  A  failure  on  its 
part  to  make  compensation  is  sufifi- 
cient  reason  for  en.ioining  a  railroad 
from  crossing  another  railroad. 
Grand  Rapids  &c.  R.  Co.  v.  Grand 
Rapids  &c.  R.  Co..  35  Mich.  265, 
24  Am.  Rep.  545  and  note;  Chicago 
8zc.  R.  Co.  V.  Chicago  &c.  R.  Co., 
15  111.  App.  587;  Chicago  &c.  R. 
Co.  V.  Englewood  &c.  R.  Co.,  17 
111.  App.  141.  A  railroad  company 
over  whose  tracks  a  city  is  at- 
tempting to  condemn  a  street  may 
resort  to  equity  by  filing  a  petition 


alleging  facts  showing  that  an  ex- 
tension of  a  street  will  unneces- 
sarily interfere  with  the  reasonable 
use  of  the  tracks  and  other  prop- 
erty afifected,  and  the  court  may 
restrain  proceedings  until  the 
claim  of  the  company  has  been 
judicially  determined.  Pittsburg 
&c.  Ry.  Co.  V.  Greenville,  69  Ohio 
St.  487,  60  N.  E.  976.  But  a  rail- 
road company  can  not  enjoin  the 
construction  of  a  street  railroad 
on  a  public  road  which  crosses  its 
tracks  and  on  which  lands  owned 
by  it  abut,  where  none  of  the  rights 
or  franchises  of  the  railroad  com- 
pany are  injured  or  invaded.  North 
Pennsylvania  R.  Co.  v.  Inland 
Traction  Co..  205  Pa.  579,  55  Atl. 
774.  See  also  Detroit  &c.  R.  Co. 
V.  Detroit.  91  ^lich.  444,  52  N.  W. 
52. 

^■'''  Coe  V.  Columbus  &c.  R.  Co., 
10  Ohio  St.  372.  411;  Provolt  v. 
Chicago  &c.  R.  Co..  69  Mo.  633; 
Irish  V.  Burlington  &c.  R.  Co.,  44 
Iowa  380;  Sturtevant  v.  Milwaukee 
&c.  R.  Co.,  11  Wis.  63.  See  also 
Eastern  Oregon  Land  Co.  v.  Des 
Chutes   R.   Co..  213  Fed.  897. 

4*  Paige  V.  Schenectady  R.  Co., 
77  App.  Div.  571,  79  N.  Y.  S.  266. 
But  see  Hinnershitz  v.  United 
Traction    Co.,    199    Pa.    3,    48   Atl. 


p3o2  *  RAILROADS  1086 

i;ranU'(l  w  licrf  llic-  plaintiff's  title  to  the  land  is  in  (lis])utc.*^ 
And  it  will  not  be  s^ranted  where  the  same  question  has  l^een 
or  can  he  passed  u])on  in  the  condemnation  ])ruceedinf>"s,  or.  in 
i^eiicral.  where  there  is  an  adef|uate  remed\'  at  law.'*'"'  So  it  has 
heen  said:  "When,  if  the  court  acts,  an  im])ortant  ])nl)lic  \vork, 
designed  to  free  public  travel  from  peril,  and  to  give  i^'reater 
security  to  human  life,  will  be  arrested  and  seriously  delayed, 
nothins^  short  of  the  threatened  destruction  of  property  of  great 
value,  by  acts  of  wanton  lawlessness,  inflicting  injuries  which, 
if  not  prevented,  must  result  in  irreparable  damage,  will  justify 
the  court   in   issuing  a  command   that   the  work  shall   sto]).'"     Tt 

874.  wIktc  it  is  lu-ld  llint  a  rclusal  Aid.  2(>0.   10  Atl.  77.  2W:   .St.   L<niis 

lit  a  preliminary  injunction  a!i:ainst  iS:c.     R.    Co.    v.    Soutli western    &c. 

completion    of    an    electric    railway  Co.,    121    I'ed.    276.      And    compare 

on   a   turnpike  at   suit   of  adjoining;  to    satne    effect    Ellis    v.    TTonston 

l;ind-o\vncrs    is    warranted,    though  &c.    R.    Co.    fTex.    Civ.    Ap]x).   203 

the   railway'  company  has   acquired  .S.   W.   172;    Irwin   v.  J.   K.   Linnhcr 

l)y  eminent   domain   the  right  only  Co..    102    Wash.    99,    172    T'ac.    911. 

as    against    the    turnpike    company  See   also   for  other   cases   in   which 

In    build    the    road,    a    considerable  it   is   held    that    injunction   will    not 

part    of   it    having   been    built   with-  lie,    Detroit   &c.    R.    Co.   v.    Detroit, 

out  objection.  01    ?^fich.  444.   52  N.  W.   52:   Black 

••■'■' Lanterman  v.  Blairstown  R.  Hills  &c.  R.  Co.  v.  Tacoma  ^fills 
Co.,  28  N.  J.  Eq.  1;  Chesapeake  Co..  129  lu-d.  312;  Chattanooga 
&c.  R.  Co.  V.  Young,  3  Md.  480.  (!tc.  R.  Co.  v.  Jones,  80  Ga.  264,  9 
Where  the  railroad  company  en-  S.  E.  1081;  Chicago  &c.  R.  Co.  v. 
terod  in  good  faith  by  the  consent  Chicago.  151  111.  348.  ^7  N.  E.  842: 
of  the  supposed  owner,  its  further  i'oyd  v.  T.ogansport  &c.  Traction 
occupation  will  not  be  enjoined  at  Co.,  161  Tnd.  587.  69  N.  E.  398: 
the  sm't  of  another  who  claims  title  \'an  Do  A'cre  v.  Kansas  City,  107 
to  the  land,  but  he  must  establish  .\io.  83.  17  S.  W.  695.  28  Am.  St. 
his  title  by  suit  for  trespass  or  396:  Holly  Shelter  R.  Co.  v.  New- 
ejectment.  Erie  R.  Co.  v.  Dela-  ton.  133  N.  C:ir.  132.  136,  45  S.  E. 
ware  &c.  R.  Co.,  21  X.  J.  Eq  283;  549;  Mansoir  v.  South  P.ound  R. 
I'ickert  v.  Ridgefield  Park  R.  Co.,  Co..  64  S.  Car.  120,  41  S.  V..  8.^2: 
25  N.  J.  Eq.  316:  Steele  v.  Tanana  Grafton  v.  Ruckli.innon  &c.  R.  Co., 
.Mines  R.  Co.,  2  Alaska  451.  56  W.  Va.  458.  49  S.  E.  532. 

<«  Cooper  v.  Anniston  &c.  R.  Co.,  *'  Dodge  v.  Pennsylvania  R.  Co., 

85  Ala.  106.  4  So.  689;  Illinois  Cent.  43   X.  J.   E(|.  351.   11   .\tl.  751.    See 

K.    Co.'  V.    Chicago.   138   III.  453,  28  .iLso    Roberts    v.    West    Jersey    &c. 

X.    !•:.    740:    Smith    v.    Goodknight,  R.   Co..   72    N.   J.    Eq.   326.   65   Atl. 

121    hid.   312.   23    X.   E.    148;    Pied-  460;    P.rown  v.   Atlanta   &c.    Power 

inont    I'^-c.    R.    Co.   v.   Spielman,   67  Co.,   113  Ga.  462,  39  S.  E.  71. 


3037  KKMKDIKS    (IF    I.AXr.-OWXKRS  §  1853 

has  ])vvu  hc-Ul  that  a  railroad  coinpau}-  wliicli  eiilcrs  upon  the 
use  and  <)ccui)ati()n  of  real  property  under  a  lease,  with  a  view 
to  its  purchase  when  that  can  properly  be  effected,  and  con- 
structs a  portion  of  its  line  thereon,  is  entitled  to  an  injunction 
restraining^  its  lessors  for  a  reasonable  time  from  proceeding  to 
dispossess  the  company  from  the  land  to  enable  it  to  condemn 
such  land  in  proper  proceedings."*®  Where  land  has  been  regu- 
larly condemned,  an  encroachment  upon  adjoining  property  not 
covered  bv  the  condemnation  proceedings  may  be  enjoined.*" 

§  1353  (1049b).  Remedies  of  land-owner — Limitation  of  ac- 
tion.— In  the  case  of  injury  to  property  by  the  construction  and 
(;peration  of  a  railroad  the  statute  of  limitations  runs  from  the 
date  of  the  injury  or  cause  which  produced  the  injury. ''■"  The 
injurv  inflicted  by  a  trespass  on  a  land-owner's  premises  by  a 
railroad  company  is  generally  regarded  as  permanent  injury 
and  accrues  at  the  time  of  the  commission  of  the  trespass  within 

4sWinslow   V.    Baltimore    &c.    R.  damages.      Eatnn   v.    European   &c. 

Co.,  188  U.  S.  646.  2.3  Sup.  Ct.  443.  R.  Co..  59  Elaine  520.  8   Am.   Rep. 

47  L.  ed.  635.  430:    New    Orleans    &c.    R.    Co.    v. 

•40  Deere    v.    Cole.    118    III.    165.   8  Brown,  64  Aliss.  479.   1   So..  637. 

N.    E.   303:    Sidener   v.    Norristown  '^o  Illinois    Cent.    R.    Co.    v.    Eer- 

&c.  Turnp.   Co..  23   Ind.  623:   State  rell.    108    III.    App.    659:    Tictzc    v. 

V.   Armell.  8  Kans.  288;   Shipley  v.  International    c^c.    K.    Cn..    ^S    Tex. 

Western   ^laryland    &c.   R.   Co.,   99  Civ.    App.    136.   80    S.    W.    124.      In 

:\Id.  115.  56  Atl.  968:  Dolan  v.  New  Grossman    v.   Ilonston    .Sec.   R.    Co.. 

York  &c.  R.  Co.,  175  N.  Y.  367.  67  99  Tex.  641.  92   S.  W.  836,  ii    was 

N.  E.  612;  Siege!  v.  New  York  &c.  held    that    tlie    cause    of   action    tor 

R.  Co.,  62  App.  Div.  290.  70  N.   Y.  damages     did     not     arise     until     a 

S.   1088;   Larney  v.  New  York   &c.  change    of    use    by    hauling    freight 

R.  Co.,  62  App.  Div.  311,  71   N.  Y.  and  the  substitution   of  heavier  en- 

S.  27.     But  this  does  not  authorize  gines   and    trains,      .\ction    to   com- 

a    court    to    restrain    the    operation  ])cl    removal    of   work   and    restora- 

of    the     road     inside     the     strip     to  tion  of  property  to  its  original  con- 

which     it     is     entitled.       Larney     v.  dition    was    held    barred    when    not 

New  York  &c.  R.  Co..  62  .\pp.  Div.  brought     until     fifteen     years     ;ifler 

311.   71    N.   Y.   S.  27;    Pape   v.   New  the  work  was   completed,  in   Kam- 

York  &c.  R.  Co..  74  App.  Div.  175.  per  v.  Chicago,  215  Fed.  706.     See 

77    N.    Y.    S.    725.      Or    the    land-  also    Rivard    v.    Missouri    Pac.    R. 

owner    may    have    his    action    for  Co.,  257  Mo.  135,  165  S.  W.  763. 


$  1353  RAILROADS  1038 

the  mcaninj?  of  the  statute."  In  the  case  of  a  railroad  con- 
pi  ructed  on  permanent  arches  in  the  street  so  as  to  shut  out 
light  and  air  of  the  abutting  owners,  and  interfere  with  the  free 
use  of  the  premises,  it  was  held  that  since  the  damages  caused 
by  such  a  structure  were  completed  with  its  erection,  and  capable 
of  ascertainment  in  an  action  at  that  time,  the  action  was  barred 
if  not  commenced  within  the  time  limited  l)y  the  statute.'-  In 
a  recent  case  the  question  arose  as  to  whether  a  claim  against 
a  village  for  damages  caused  by  change  of  grade  at  a  crossing 
could  be  maintained  under  the  law  relating  to  changes  of  grades 
of  streets  after  the  lime  limited  by  the  railroad  law  relating  to 
change  at  crossings  and  it  was  held  that  the  railroad  law  gov- 
erned and  proceedings  could  not  be  maintained  after  the  expi- 
ration of  the  time  limited  by  that  law\ •'"'•'*  The  question  as  to 
which,  if  any,  of  several  statutes  of  limitations  should  be  applied 
is  one  that  has  caused  considerable  conflict  among  the  decisions 
of  the  various  courts,  and  about  all  that  can  be  safely  said  in  a 
general  way  is  that  the  solution  of  the  question  depends  not 
only  on  the  particular  statutes  under  consideration,  but  also 
upon  the  nature  of  the  action  or  remedy  sought  and  the  view 
of  the  particular  court  as  to  its  nature  and  basis  or  theory.  In 
some  cases  it  has  been  held  that  the  land-owner's  claim  is  gov- 
erned by  the  statute  or  law  applicable  to  adverse  possession  of 

51  Highland    Ave.    &c.    R.    Co.    v.  Co.    v.    O'Neill,    58    Ncbr.    2,39,    78 

Matthews,   99   Ala.  24,    10   So.   267,  N.    W.    521:    Troy    v.    Cheshire    R. 

14  L.  R.  A.  462;  Williams  v.  South-  Co.,  23  N.  II.  83,  55  Am.  Dec.  177; 

ern    Pac.    R.    Co.,    150   Cal.   624,   89  Rosenthal  v.  Railroad  Co.,  79  Tex. 

Pac.    599,    citing    Frankle    v.    Jack-  325,   15  S.  W.  268. 

son.  30  Fed.  398;  Denver  v.   l^>ayer,  ■'''-' De      Gcofroy      v.      ^Merchants 

7  Colo.  113,  2  Pac.  6;  Jacksonville  Bridge  Term.  R.  Co.,  179  Mo.  698, 

&c.   R.   Co.   v.    Lockwood,  33   Fla.  79  S.  W.  386,  64  L.  R.  A.  959.     For 

573,    15    So.   327;    Chicago   &c.    Co.  other   illustrative  cases,   sec   Louis- 

V.   Loeb,  118  111.  203,  8  N.   E.  460,  ville  &c.  R.  Co.  v.  Wiggington,  156 

59   Am.    Rep.   341:    Doane   v.    Rail-  Ky.   400,    161    S.   W.   209;    Egan    v. 

road    Co.,    165    111.    510,    46    N.    E.  Hotel  &c.  Co.,  134  La.  740,  64  So. 

520.   36    I,.    R.    A.    97.    56    Am.    St.  698;    Rivard    v.    Missouri    Pac.    R. 

265:    Strickler    v.    Midland    R.    Co.,  Co.,  257  Mo.  135,  165  S.  W.  763. 

125  Ind.  412,  25  N.  E.  455;  Stodgill  •"-s  Melenbacker  v.  Salamanca,  188 

V.    Chicago    &c.    R.    Co.,    53    Iowa  N.  Y.  370,  80  N.  E.  1090. 
341,  5  N.  W.  495;   Chicago  &c.   R. 


1039 


REMEDIES  OF    LAND-OWNERS 


§1354 


'and.-'  Ill  other  cases  it  is  held  that  the  statute  relating-  to  tres- 
pass or  injuries  to  land''"'  should  be  applied;  and  in  still  others 
the  general  statute  applicable  to  actions  or  matters  not  other- 
wise limited  has  been  held  to  govern.'"'''  So,  where  the  acticni  is 
to  recover  compensation  for  property  damaged  by  a  taking 
under  the  eminent  domain,  some  courts  hold  that  there  is  an 
nnplied  promise  to  pay  such  compensation  ;ind  that  the  claim 
is  governed  by  the  statute  of  limitations  applicaljle  to  actions 
u])on  contracts  express  or  implied  and  not  in  writing.'' 

§  1354  (1049c).     Remedies  of  land-owner — Parties  to  proceed- 
ings.— As  a  general  rule  the  action  for  an  unauthorized  appro- 


'"'*  Aylmore  v.  Seattle,  100  Wash. 
515.  171  Pac.  659,  L.  R.  A.  1918E, 
127  (wliere  there  was  an  actual 
taking-  and  tlie  court  distinguished 
tlie  case  from  an  action  for  negli- 
gence or  consequential  damages 
or  trespass);  Salt  Lake  Invest.  Co. 
V.  Oregon  &c.  R.  Co.,  46  Utah  203,' 
148  Pac.  439.  See  also  Organ  v. 
Memphis  &c.  R.  Co.,  51  Ark.  235, 
lis.  W.  96;  Kime  v.  Cass  County, 
71  Nebr.  677,  99  N.  W.  546,  101 
N.  W.  2;  Lehigh  Val.  R.  Co.  v. 
McFarlan.  43  N.  J.  L.  605;  Faulk 
V.  Missouri  River  &c.  R.  Co.,  28 
S.  Dak.  1,  132  N.  W.  233,  Ann.  Cas. 
1913E,  and  note.  In  several  of  the 
cases  cited  it  is  held  that  a  pro- 
ceeding by  the  landowner  to  have 
compensation  assessed  is  a  special 
proceeding  and  not  governed  by 
the  general  statute  of  limitations 
relating  to  civil  actions.  See  also 
Gates  V.  Colfax  Northern  R.  Co., 
177  Iowa  690,  159  N.  W.  456. 

--East  Rome  v.  Lloyd,  124  Ga. 
852,  53  S.  E.  103.  See  also  Pickett 
V.  Toledo  &c.  R.  Co.,  131  Ind.  562, 
31  N..  E.  200;  Strickler  v.  Midland 
R.  Co.,  125  Ind.  412,  25  N.  E.  455; 
Southern    Ind.    R.    Co.    v.    Brown, 


30  Ind.  App.  684,  66  N.  E.  915; 
Standard  Chemical  Co.  v.  Illinois 
Cent.  R.  Co.,  130  La.  Ann.  147,  57 
So.  782. 

-<'  Shortle  v.  Terre  Haute  &c.  R. 
Co.,  131  Ind.  338,  30  N.  E.  1084; 
Shortle  v.  Louisville  &c.  R.  Co., 
130  Ind.  505,  30  N.  E,  639.  See 
also  Chicago  &c.  R.  Co.  v.  Mc- 
Auley,  121  111.  160,  11  N.  E.  67; 
Atchison  &c.  R.  Co.  v.  Lauterback, 
8  Kans.  App.  15,  54  Pac.  11;  Ro- 
mano V.  Yazoo  &c.  R.  Co.,  87  ]\Iiss. 
721,  40  So.  150;  De  Geofroy  v. 
Merchants  &c.  Terminal  R.  Co., 
179  Mo.  698.  79  S.  W.  386.  64  L. 
R.  A.  959,  101   Am.  St.  524. 

•'^"  Jacobs  V.  Seattle,  100  Wash. 
524.  171  Pac.  662.  L.  R.  A.  1918E, 
131.  See  also  United  States  v. 
Great  Falls  Atfg.  Co.,  112  U.  S. 
645,  5  Sup.  Ct.  306,  28  L.  ed.  846; 
Robinson  v.  Southern  Cal.  R.  Co., 
129  Cal.  8,  61  Pac.  947;  Kuhl  v. 
Chicago  &c.  R.  Co.,  101  Wis.  42, 
77  N.  W.  155.  Sec  also  for  a  re- 
view of  the  cases  upon  the  general 
subject  of  this  section,  notes  in 
L.  R.  A.  1918E,  139,  and  Ann.  Cas. 
1913E,   1139. 


§  1354 


RAILROADS 


1040 


priation  can  he  commenced  only  by  the  person  who  owned  the 
property  at  the  time  of  its  ai)propriation  or  injury,  unless  the 
statutes  give  that  rij^ht  to  others.''^  Under  this  rule  it  has  been 
held  that  the  mortgagor  and  not  the  mortgagee  must  bring  the 
action."'"  Similarly  it  is  the  holder  of  the  legal  title  and  not  the 
cestui  qui  trust  that  must  bring  the  action  where  a  trust  estate 
\v  involved.""  Persons  jointly  interested  in  the  same  tract  of 
land  may  maintain  an  action  jointly."^  Inil   not  persons  owning 


•'•8  KiiiK  V.  Southern  R.  Co.,  119 
Fed.  1017:  Illinois  Cent.  R.  Co.  v. 
Fcrrcll.  108  III.  App.  659;  Illinois 
Cent.  R.  Co.  v.  I.ockard.  112  111. 
.■\pp.  423:  Drury  v.  ^lidland  R.  Co.. 
127  Mass.  571;  Clapp  v.  Boston. 
133  Mass.  367;  New  Jersey  Cent. 
R.  Co.  V.  Hctficld,  29  N.  J.  T..  206: 
Shepard  v.  Manhattan  R.  Co.,  169 
N.  V.  160,  62  N.  E.  151;  Pope  v. 
Manhattan  R.  Co..  79  App.  Div. 
583.  80  X.  V.  S.  316;  Child  v.  New 
York  FJev.  R.  Co.,  89  App.  Div. 
598.  85  N.  V.  S.  604;  Texas  Cent. 
R.  Co.  V.  Mcrkel,  32  Te.x.  723; 
Cane  Belt  R.  Co.  v.  Ridgeway,  38 
Tex.  Cix.  App.  108,  85  S.  W.  496: 
Walton  V.  Green  Bay  R.  Co..  70 
Wis.  414.  36  N.  W.  10.  In  Phillips 
V.  Postal  Tel.  &c.  Co..  130  N.  Car. 
513.  41  S.  E.  1022.  89  Am.  St.  868, 
it  is  held  that  the  landowner  or 
his  successor  in  interest  may  main- 
tain an  equitable  action  for  assess- 
ment and  recovery  of  permanent 
damacres  and  compensation  for  the 
land  taken  and  used.  The  action 
ran  be  brought  by  the  holder  of  a 
leasehold  injured  by  the  construc- 
tion of  an  elevated  railroad.  Storms 
V.  Manhattan  R.  Co..  77  App.  Div. 
94,  79  N.  V.  S.  60.  But  where  at 
the  time  the  lease  is  executed  the 
railroad     is     in     full     operation,    of 


which  fact  the  lessee  is  aware,  he 
can  not  recover  on  account  of  the 
operation  of  the  road.  Child  v. 
New  York  Elev.  R.  Co.,  89  App. 
Div.  598,  85  N.  Y.  S.  604.  See  also 
Renner  v.  St.  I.onis  tS:c.  K.  Co.. 
197  III.  App.  11.  The  fact  that  the 
devisee  has  a  right  to  maintain  an 
action  to  enjoin  the  operation  of 
an  elevated  railroad  in  front  of  his 
.premises  does  not  entitle  him  to 
recover  damages  that  accrue  dur- 
ing the  life  of  his  testator.  ITirsch 
v.  :\ranhattan  R.  Co.,  84  App.  Div. 
374.  82  N.  Y.  S.  754.  13  N.  Y.  Ann. 
Cas.   158. 

■""'^  Farnsworth  v.  Boston,  126 
^Tass.  1:  Vaugh  v.  Wethercl.  116 
:\rass.  138.     But  see  ante.  §  1310. 

''"  Reed  v.  TTanovcr  Branch  R. 
Co.,  105  Mass.  303:  Davis  v.  Charles 
I-'iver  Branch  R.  Co.,  11  Cush. 
(Mass.)  506;  Anderson  v.  Roches- 
ter &c.  R.  Co.,  9  How.  Pr.  (N.  Y.) 
553. 

'■'  Moore  v.  Shaw,  47  Maine  88: 
Reed  v.  llanover  Branch  R.  Co., 
105  Mass.  303:  Getz  v.  Pliiladeb 
phia  &c.  R.  Co..  105  Pa.  St.  547; 
Brown  v.  .Arkansas  Cent.  R.  Co., 
72  Ark.  456.  81  S.  W.  613  (widow 
and  heirs  of  deceased  person  held 
under  bond  for  deed). 


1041  REMEDIES  OF   LAND-OWNERS  §  1355 

separate  and  distinct  parcels  of  land/'-  Coming-  now  to  parties 
defendant  it  is  the  railroad  company  appropriating  the  land  for 
railroad  i)nrposes  that  is  a  necessary  party  defendant,  though 
it  has  since  leased-  its  tracks  to  another  company."-'  Other  par- 
ties having  a  substantial  interest  in  the  premises  but  who  have 
not  been  named  in  the  complaint  may  be  brought  in  to  defend 
or  may  be  allowed  voluntarily  to  become  parties.*'*  And  it  has 
I.een  held  that  a  new  corporation  buying  a  railroad  at  a  fore- 
closure sale  may  be  brought  in  as  a  defendant  though  the  land 
was  purchased  by  its  predecessor.*'^ 

§  1355  (1049d),  Remedies  of  land-owner — Pleading. — The  pe- 
tition or  complaint  in  such  proceeding  should  aver  plaintiff's 
ownership  of  the  land  taken  or  injured,^*'  and  should  describe 
the  lands  with  sufficient  precision  to  permit  their  definite  loca- 
tion 1)v  appraisers.'"  It  should  set  forth  all  facts  showing  the 
plaintiff's  right  to  a  recovery.*'^  Special  damages  relied  upon 
should  be  averred."''  If  the  plaintiff  desires  to  restrict  the  width 
of  the  right  of  way  it  has  been  held  that  he  should  allege  that 

'■2  Guerkink  v.   Petalinia.   112  Cak  "7  Jiifjij^n^^polis      &c.      R.      Co.     v. 

306,     44     Pac.     570;     Chambers     v.  Newsom,    54    Ind.     121;     Pittsburt; 

Lewis.    9    Iowa    583;    Norfolk    &c.  &c.  R.  Co.  v.  Harper,  11   Tnd.  App. 

R.  Co.  V.  Smoot,  81  Va.  495:  Youn-  481.   37   N.    E.    41;    Central    R.    Co. 

kin    V.    ^lihvaukee    Light    &c.    Co.,  v.   jNIerkel.  32  Tex.  723   (should   be 

112  Wis,   15.  87  N,  W.  861.  described    by    metes    and    bounds), 

'>■"•  .\tcIiison  &c.  R.  Co.  v.  Ander-  But    though    defectively    described 

son,  65  Kans.  202,  69  Pac.   158.  if    the    declaration    sufficiently    lo- 

'•*  Davidson     v.     Boston     &c.     R.  cates    it   as   proved    it   is    held    that 

Co,.    3    Cnsh.    (Mass.)    91;    Hill    v.  the  variance  is  not  fatal.     Wallace 

Glendon    &c.    Mining    Co,.    113    N.  v.    Chesapeake   &c.    R.    Co.,    73   W. 

Car.   259,    18   S.    E.    171;    Abbott   v.  Va.  347,  80  S.  E.  499. 

Upham,   13  Mete.   (^lass.)    172.  68  Neal  v.  Posey  County,  12  Ind, 

"sDrury  v.   Midland   R.   Co.,   127  App.   533.  40   N.   E..708,     See  also 

Mass.  571.  as    to    what    a    bill    to    restrain    a 

•'"  Pittsburgh  &c.  R.   Co,  v,  Har-  continuing   trespass    should    allege, 

per.  11   Tnd.  App,  481.  37  N,  E,  41.  Kamper  v.   Chicago,  215    Fed.   706. 

See  also  Sudduth  v.  Central  of  Ga.  fo  Wampach    v.    St,    Paul    &c.    R. 

R.  Co.  201  Ala,  56,  77  So.  350.     See  Co.,    21     Minn.    364;     Bridgers     v, 

for  petition  held  sufficient.     Murray  Puree)],  23   N.   Car.   232.     See   also 

County   V.    Wood,    141    Ga,    561.  81  Erianger  v.  Cody,  158  Ky,  625,  166 

S.  E.  856.  S.  W.  202. 


^-  1355  IJAILROADS  1042 

llu-  full  widtli  ai)])r(>])riatc(l  is  not  necessary  for  the  ()i)CM-ati(>n 
(.f  the  road.'"  Where  there  is  no  sus^J^estion  in  the  pleadings  of 
either  partv  as  to  the  width  of  the  rii^ht  of  way  recpiired  or 
necessitated,  it  has  Ix'en  held  that  the  courts  will  assume  that 
it  was  intended  to  vest  in  the  railroad  company  a  ri,<;ht  of  way 
<.f  the  width  fixed  by  the  charter  of  the  company.''  It  is  not 
required,  according-  to  some  decisions  at  least,  that  the  plaintiff 
should  nei^ative  the  institution  of  condemnation  proceedings. '- 
Xeither  is  it  necessary  that  the  pleadin.^-  should  allege  a  demand 
for  dama.y-es  and  its  refusal.'-"  The  rule  as  to  amendment  of 
pleadings  is  generally  the  same  here  as  elsewhere.  In  a  suit 
l)y  the  owner  of  property  abutting  on  a  street  for  an  injunction 
restra.ining  the  erection  of  a  railroad  viaduct  in  the  street,  it 
appearing  that  the  owner  was  entitled  to  damages  if  the  allega- 
tions of  the  petition  were  true,  it  was  held  not  error  on  the 
dissolution  of  the  injunction  to  permit  plaintiff  to  amend  her 
petition  so  as  to  i)ray  for  the  recovery  of  damages.'*  In  an 
action  of  trespass  against  a  railroad  company  it  has  been  held 
th.at  the  answer  may  be  either  in  the  form  of  a  denial."  or  a 
justification.'''  Special  defences  under  a  statute  or  the  charter 
of  the  railroad  com])any  must  be  specially  pleaded."  And  it  has 
l)een  held  that  defendant  in  ejectment  can  not  show  ecpiitable 
title  where  none  was  pleaded  in  the  answer." 

"0  P.eal    V.    Durham    &c.    R.    Co..  son.    26    Tnd.    App.    295.    59    X.    F.. 

1.36  N.  Car.  298,  48   S.  E.  674.  688    (also    holdin,!.:    the    complaint 

"'  Real    V.    Durham    &c.    R.    Co.,  .sufficient    in    other   respects').      See 

136  N.  Car.  298.  48  S.  K.  674.  also  Pittsburgh  &c.  R.  Co.  v.  Week. 

-2  Hennessey  v.   St.    Paul    &c.    R.  152  Tnd.  421.  424,  5.3  X.  K.  4.39. 

Co..    .30    Minn.    55.    14    X.   \V.   269:  '■*  Camden   &c.  R.  Co.  v.  Smiley, 

and    in    an    action    by    an    adjacent  27  Ky.  T,.   1.34.  84  S.  \\  .   523. 

landowner   for  damages   caused  by  '"'  Pumpclly    v.     Green     T')ay    &c. 

operation    of    the    road    under    an  Canal    Co.,    13    Wall.    (  U.    S.)    166. 

Indiana    statute    it    has    been    held  20  L.  ed.  557. 

that    the     landowner     must    allege  "'■  Crawfordsville    6v:c.    R.    Co.    v. 

that  tlic  right  of  way  was  acquired  Wright,  5   Tnd.  252. 

by  condemration   and   not  by  pur-  ""  Crawfordsville    &c.    R.    Co.    v. 

chase.      TMuk   v.    Cleveland    &c.    R.  Wright,    5    Tnd.    252:    McKeoin    v. 

Co..   181    Tnd.   539.   105    X.    K.    116:  Northern  Pac.  R.  Co..  45  Fed.  464. 

Gray    v.    St.    Paul    &c.    R.    Co..    13  "^  Pfaender    v.     Chicago    &c.    R. 

Minn.  315.  Co.,   86   ^Tinn.  218.  90   N.   W.  393. 

"•''  Chicago  &c.  R.  Co.  v.   Patter-  P)Ut    in    some   jurisdictions   a    gen- 


1043  REMEDIES  OF  LAND-OWNERS  §  1356 

§  1356  (1049e).     Remedies    of    land-owner  —  Evidence.  —  The 

law,  it  has  l^eeii  held,  indulges  a  presumption  that  condemnation 
proceedings,  under  which  defendant  claims,  were  regular.'^  The 
property-owner  has  the  burden  of  proof  of  all  facts  necessary 
to  the  relief  he  seeks. ^"^  Thus,  he  has  the  burden  of  proving  that 
switches  and  turnouts  laid  in  a  street  by  a  railroad  company 
are  not  necessary  where  he  makes  that  issue  and  the  law  allows 
the  railroad  company  to  lay  such  tracks.®^  The  defendant  on 
his  part  has  been  held  to  have  the  burden  of  proving  all  matters 
of  defence  specially  pleaded  by  him.®^  The  rules  governing  the 
admissibility  of  evidence  generally  in  actions  of  this  character 
are  in  general  the  same  as  in  other  civil  actions  and  are  not 
essentially  different  from  the  rules  of  evidence  in  condemnation 
proceedings,  a  subject  which  has  already  received  attention. ^^ 
In  addition  it  may  be  said  that  plaintiff's  title  to  the  land  claimed 
to  be  injured  may  be  established  by  proof  of  adverse  posses- 
sion :^*  that  it  may  be  shown  that  damages  claimed  by  defendant 
to  hnve  been  paid  were  paid  to  one  acting  as  an  authorized  agent 
of  the  plaintiff  i^"'  that  the  diminution  in  the  value  of  the  prem- 
ises invaded  may  1:)e' shown  by  the  loss  of  rent  therefrom.^''  The 
defendant  in  injunction  proceedings  to  enjoin  the  operation  of 
an  elevated  railroad  has  been  held  entitled  to  show  benefits 
resulting  to  plaintiff"  from  the  operation  of  the  road,  since  the 

eral  denial  would   'probably  be  suf-  ^-  Pochila  v.   Calvert   &c.   R.   Co., 

ficient   to    admit    equitable   as    well  31    Tex.    Civ.    App.    398.    72    S.   W. 

as  legal  defenses.  255     (special     benefits     from     con- 

""Galena    &c.    R.    Co.    v.    Pound,  struction   of  road);   Hazen   v.   Bos- 

22   111.   399.  ton    &c.    R.    Co.,    2    Gray    (Mass.) 

so  Schechter  v.  Denver  &c.  R.  574  (trespass  justified  by  author- 
Co.,  8  Colo.  App.  25,  44  Pac.  761  ized  location  on  land).  There 
(title  to  premises):  Jackson  v.  must  at  least  be  some  evidence 
Dines,  13  Colo.  90,  21  Pac.  918  supporting  the  special  defense, 
(location  of  road):  Cook  v.  Chi-  •''••' Ante,  §§  1328-1334. 
cago  &c.  R.  Co.,  83  Iowa  278,  49  S4  Lawrence  R.  Co.  v.  Cobb,  35 
N.  W.  92   (actual   damages) ;    New  Ohio  St.  9. 

Albany  v.   Endres,  143   Ind.  192.  42  s-^  Ragan    v.    Kansas    City   &c.    R. 

N.    E.    683    (nonpayment    of    dam-  Co..  Ill  Mo.  456,  20  S.  W.  234. 

ages).  '*•'•  Autenreith  v.  St.  Louis   &c.  R. 

SI  Carson    v.    Central    R.    Co.,    35  Co.,  36   Mo.  App.  254. 
Cal.  325. 


§1357  RATT.ROADS  1014 

plainlitf  is  entitled  to  ;in  injunctidn  onl}-  in  ihc  ras''  of  a  sub- 
stantial injur\-  siilTcred  l)y  him."'  In  an  action  for  (laniuges  from 
the  o])t'ration  of  an  c'lc'\atc(l  railroad  in  front  of  a  l:)iiildin,2:  it 
was  lu'ld  not  error  to  exclude  e\  idenci'  to  slmw  that,  it  tlu'  l)U!ld- 
ins^-  on  tile  opposite  side  of  the  street  from  plaintiff's  building, 
was  raised  as  high  as  the  law  and  ordinances  of  the  city  allowed, 
the  elevated  structure  would  not  intercept  the  direct  rays  of  the 
>un   toward   the  liuilding  occu])ied  l)y   ])laintifif.'^'* 

§  1357  (1049f).  Remedies  of  land-owner  —  Damages.  —  The 
measure  of  damages  where  the  a])propriation  is  not  made  under 
condemnation  i)roceedings  is  generally  the  same  as  that  which 
];revails  in  condemnation  cases,^"  a  sul)ject  receiving  extended 
consideration  in  tlu'  ])rcce(ling  chapter.''"  Here  it  may  be  said 
generally  that  a  land-owner  whose  premises  are  entered  by  a 
lailroad  couiikiun-  without  his  consent  and  without  condemna- 
tion proceedings  is  entitled  to  the  value  of  the  land  Avhen  taken 
and  the  injury  or  diminution  in  value  caused  to  the  remainder.-'^ 
\Miere  a  railroad  is  l)uilt  in  a  street  or  highway  fronting  a  land- 
owner's i)remises  under  like  conditions  as  to  consent  and  con- 

'■■  Xotte  V.  New  ^'ork  1^1.  R.  Co.,  shade  trees  and  tlie  like.   Clevekand 

_'   .Misc.  62.  20  X.  ^'.   .S.  844.     .So  it  School  Dis.  v.  Great  Northern   Ry. 

has  been  held  that  in  an  action  for  Co.,   20    N.    Dak.    124,    126    N.    W. 

damages   to   land   by   tlie   construe-  995,   28   L.    R.   A.    (N.    S.)    757   and 

tion    f)f    a    railroad    terminal    adja-  note.      Rut    where    a    railroad    Cfmi- 

cent    thereto    the    defendant    could  pany   wilfull}-   and   nialicious]\-   lays 

sliow     mider     the     .general     denial  its   track   on   an    adjoinin.n'  hitjliway 

that    the    market    value   of   the    land  ai^ainst     llie     waniin.L;-    and     protest 

fur   any   use   to   which    it    mis^ht   be  of    the    laiid-dWMU  r    in    >uch    a    way 

put    was    as    great    after    the    con-  as    to    injure    liis    jjroijcrty    it     lias 

-truction  as  before.     Houston   Belt  been    lieid    tliat    tlie    ccnnpany    was 

iK:c.    R.    Co.    V.    Wilson    (Tex.    Civ.  imt    in    a    position    tn    (K'maiid    that 

App.),  165  S.  W.  560.  the      damages      for      this      invasion 

'""' l'"ifth    Nat.   I'.ank  v.   New   'S'ork  should    be    assessed    on     the    same 

I'^l.    R.    Co.,   28    l'"ed.   231.  basis    as     if    it     were     done     in     the 

""'•'  Davenport    &c.    R.    Co.   v.    Sin-  lawful  exercise  of  the  right  of  emi- 

net.     111     111.     Ai)p.    75,       See    also  nent    (hmiain.      l^.ecker    v.    bebanou 

Houston  Belt  &e.  R.  Co.  v.  Wilson  &c.   R.  Co.,  25   Pa.  Sup.   Ct.  .367. 
(Tex.    Civ.    App.),    165    S.   W.    560.  '"Ante   chap.-  XXXIX. 

.\nd  see  as  to  measure  of  damages  ''^  Southern  &c.  R.  Co.  v.  Cowan, 

for     injury     to     or     destruction     of  129  Ala.  577,  29  So.  985. 


1045  REMEDIES  OF  LAND-OWNERS  §1357 

(IrmiKition,  tlie  measure  of  (lania£,a's  is  the  decrease  of  value  of 
the  premises  caused  1)_\  the  construction,  that  is,  the  difference 
l)et\veen  llie  value  of  the  i)roperty  with  the  railroad  track  there 
;,nd  the  \  alue  without  it,  not  taking  into  account  the  benefit 
and  injury  received  and  sustained  by  the  community  in  gen- 
eral."- The  compensation  is  intended  as  a  reasonable  compen- 
^ation  for  the  uses  for  which  the  owner  could  have  put  the 
L-md,'"  without  reference  to  the  i)r()hts  made  by  the  operation 
of  the  road.'"  On  this  iiKpiiry  it  has  been  held  improper  to  ask 
the  ])l;iinlin'  whether  he  would  ask  a  certain  amount  for  the  land, 
since  the  i)rice  that  he  would  have  accepted  might  dei)end  on 
yarious  contingencies,  such  as  how  badly  he  needed  the  money, 
whether  the  price  was  asked  before  or  after  the  injury  sued  for. 
or  wdiether  it  included  the  damages  for  such  injury.''"'  These 
damages  haye  been  held  recoverable  without  reference  to 
whether  the  road  was  negligently  constructed  or  operated."'" 
Exemi)lary  damages  are  not  recoyerable  where  the  entry  was 
made  by  the  railroad  company  in  the  belief  that  its  possession 
of  the  land  was  rightful  imder  condemnation  proceedings."  In 
a  case  where  a  railroad  ct)mpany  appropriated  a  portion  of  the 
highway  and  constructed  a  new  road  near  to  and  parallel  wdth 
the  old  one  for  the  distance  that  the  latter  had  been  appropriated 
it  w^as  held  that  the  measure  of  damages  recoyerable  by  the 
county  for  such  an   appropriation  was  the   amount  required  to 

■'-  BoycM-    &    Lucas    v.    St.    Louis  Hoskius.   80   Miss.   730,   M  .So.    L-50. 

.^c.   R.   Co.,  97  Tex.   107,  76   S.  W.  92  Am.  St.  612. 

441:    llliuois    Ccut.    R.    Co.    v.    Far-  a*  Illinois    Cent.    R.    Co.    v.    Hos- 

rc'll.   lOH   111.  App.  659:   KlosU-rman  kins,   80 /?(riss.    730,   32   So.    150,   92 

V.  Chesapeake   &c.  R.   Co.,   114  Ky.  Am.  St.  612. 

426,   71    S.    W.   6,  24   Ky.    L.    1233:  »^  Rice    v.    Norfolk    &c.    R.    Co.. 

Missouri    &c.    R.    Co.    v.     Calkins  130  N.  Car.  375,  41  S.  E.  1031. 

(Tex.    Civ.    App.),    79    S.    W.    852.  "«  Chicago   &c.   R.   Co.   v.   Payne, 

See  also  Appel  v.   Chicago   &c.   R.  192  111.  239,  61  N.  E.  467.     See  also 

Co.,  34  S.  Dak.  306,  148  N.  W.  513.  Houston    &c.    R.    Co.   v.    Davis,    45 

•'•■  Eastern  Texas  R.  Co.   v.  Scur-  Tex.  Civ.  App.  212,  100  S.  W.  1013. 

lock.    97    Tex.    305,    75    S.    W.    366  "^  Illinois    Cent.    R.    Co.    v.    Hos- 

( injury      to      property      as      home-  kins,    80    Miss.    730,    32    So.    150.    92 

steads);    Illinois    Cent.    R.     Co.    v.  -Am.    St.   612. 


1358  RAILROADS 


1046 


put  the  new  road  in  as  good  condition  as  the  old  one  was  in 
wlu-n  appropriated."^ 

i}  1358  (1049g).  Remedies  of  land-owner — Taking  or  injury 
in  excess  of  that  condemned. — Wlure  land  is  seized  in  excess  of 
that  condemned  the  land-owner  ij^enerally  has  his  remedy  aG:ainst 
the  railroad  company  by  injunction,  ejectment  or  an  action  for 
damages.""  Where  the  action  is  brought  for  a  permanent  injury 
to  the  freehold  the  owner  has  the  burden  of  proving  freehold 
title  in  himself.^  In  one  case  a  railroad  company  was  held 
liable  for  perm.nnrnl  injury  to  real  property  resulting  from  its 
causing  dirt  to  be  thrown  over  an  embankment  constructed  by 
it  along  its  track  on  a  highway  to  protect  a  passway — the  dirt 
marring  the  beauty  of  plaintiff's  property,  and  destroying  her 
use  of  the  passway — though  at  the  time  the  damage  occurred 
the  railroad  had  acquired  a  prescriptive  right  to  the  use  of  the 
highwav  ;  but  it  did  not  appear,  however,  that  this  right  extended 
farther  than  the  embankment. ^ 

^  1359  (1049h).  Remedies  of  land-owner — Right  of  company 
to  conveyance. —  It  has  been  held  that  an  elevated  railroad  com- 
pany on  the  recovery  of  damages  against  it  by  a  lessee  of  abut- 
ting property  is  entitled,  on  payment  of  these  damages,  to  a 
release  from  the  lessee  and  a  conveyance  of  the  easement,  not 
merely  during  the  existing  term,  but  during  future  renewals 
stipulated  for  in  the  lease.^     But,  as  already  shown  in  another 

"8  St.   Louis  &c.   R.   Co.  v.   Gray-  ^  Waltemcyer    v.    Wisconsin    &c. 

son  Co..  31  Tex.  Civ.  App.  611,  7?>  R.  Co.,  71  Towa  626,  ?,?,  N.  W.  140. 

S.  W.  64.  2  xietzc    v.    International    &c.    R. 

«»  McKcnnon  v.  St.  Louis  &c.  R.  Co.,  35   Tex.    Civ.   App.    136,  80   S. 

Co..    69    Ark.    104,    61    S.    W.    383;  W.  124.     Sec  also  Houston  &c.  R. 

Jacksonville   &c.  R.  Co.  v.  Kidder.  Co.    v.    Davis,    45    Tex.    Civ.    App. 

21   111.  131:  Bass  v.  Ft.  Wayne,  121  212.   100  S.  W.  1013. 

fnd.   389.   23    N.    E.   259;    Ketcham  •"*  Storms    v.    INIanhattan    R.    Co.. 

v.  New  York  &c.  R.  Co..  177  N.  Y.  77  App.   Div.  94.   79    N.   Y.   S.   60. 

247,  69  N.   E.   533.      See  also  note  See  also  Reed  v.  ^Metropolitan   El. 

to  Boise  Val.  Constr.  Co.  v.  Kroe-  R.   Co.,  18  N.  Y.  S.  811;  Woolsey 

rer.    17    Idaho   384.   105    Pac.    1070.  v.  New  York  El.  R.  Co..  134  N.  Y. 

in  28  L.  R.  A.  fN.  S.)  968.  323,  30  N.  E.  387,  31  N.  E.  891. 


1047  REMEDIES  OP  LAND-OWNERS  §  1360 

section,  a  ccjiiveyunce  Avhere  i)roi)erl}-  is  taken  under  the  emi- 
nent domain  is  not  ordinarily  required.* 

§  1360  (1051).     Effect   of   tender  of   payment  by  company. — 

The  manner  in  which  tender  of  payment  is  required  to  be  made 
to  the  hmd-ovvner  in  condemnation  proceedings  is  usually  gov- 
erned by  statute,  and  not  by  common  law  rules. ^  Where  the 
statute  requires  a  tender  before  entering  upon  the  land,  a  tender 
is.  of  course,  essential,  but  if  the  damages  have  been  ascertained 
l)y  a  judicial  proceeding  and  a  tender  is  made  and  refused,  the 
company  may  lawfully  enter  into  possession.  A  valid  tender, 
made  after  the  compensation  has  been  fixed  by  a  competent 
tribunal,  is  effective  although  the  land-owner  may  refuse  to 
accept  it  and  appeal  from  the  award  or  judgment. '''  In  order  to 
entitle  the  company  to  possession  it  must  tender  the  entire 
amount  assessed,  and  it  is  not  sufficient  to  tender  the  sum  the 
company  claims  to  be  the  proper  one.'  It  is  held  that  the  tender 
of  the  amount  awarded  must  be  made  Ijefore  the  owner  appeals,^ 
but  we  think  that  a  tender  promptly  made  should  be  regarded 
as  sufficient  although  the  owner  does  appeal,  unless  the  statute 
requires  the  tender  to  he  made  before  an  appeal  is  taken.  In 
some  jurisdictions  the  rule  is  that  a  tender  of  the  amount 
awarded  does  not  preclude  the  company  from  litigating  the 
question  of  the  amount  on  appeal.^  The  tender  must  be  made 
in  money ,^°  and  must  be  made  in  the  mode  prescribed  by  the 

4  Ante,  §   1344.  ^  ]\jettler   v.    Easton    &c.    R.    Co., 

"Stolze  V.  Milwaukee  &c.  R.  Co.,  25  N.  J.  Eq.  214. 

113  Wis.  44,  88  N.  W.  919,  90  Am.  « Johnson    v.    Baltimore    &c.    R. 

St.  833.  Co.,  45  N.  J.  Eq.  454,  17  Atl.  574, 

« Johnson  v.  Baltimore  &c.  R..  39  Am.  &  Eng.  R.  Cas.  101. 
Co..  45  N.  J.  Eq.  454,  17  Atl.  574.  »  jnclianapolis  &c.  Co.  v.  Brow- 
39  Am.  &  Eur.  R.  Cas.  101;  Po-  er,  12  Ind.  374.  See  Baltimore  Szc. 
m.ma  &c.  R.  Co.  v.  Camden  &c.  R.  Co.  v.  Johnson,  84  Ind.  42n.  10 
Co.  (N.  J.),  20  Atl.  350,  44  Am.  &  Am.  &  Eng.  R.  Cas.  408. 
Eng.  R.  Cas.  179;  Oliver  v.  Union  i"  Where  a  tender  is  relied  upon, 
&c.  R.  Co.,  83  Ga.  257,  9  S.  E.  1086.  it  must  be  a  tender  of  money  in 
See  also  Wabash  R.  Co.  v.  Et.  order  to  be  valid.  Isom  v.  Missis- 
Wayne  &c.  Co..  161  Ind.  295,  67  sippi  R.  Co.,  36  Miss.  300;  Ala- 
X.  E.  674;  Asher  v.  Louisville  &c.  bama  R.  Co.  v.  Burkett,  42  Ala, 
R.  Co.,  87  Ky.  391,  8  S.  W.  854.  83;   Jones  v.   Wills   Valley   R.   Co., 


§  1360                                                    RAILRO.M>S  1048 

statute.  Where  iKiynient  into  court  is  required  or  a  deposit  is 
provided  for  the  tender  will  be  ineffective  unless  such  require- 
ments are  conipHed  with  hy  the  company."  The  authorities  de- 
clare that,  under  most  of  the  constitutions,  a  statute  which 
.-.utliorizes  the  condemning-  party  to  take  possession  pending  the 
appeal  upon  dei)ositing-  the  sum  awarded  in  court  and  that  the 
sum  shall  not  be  paid  to  the  land-owner  until  the  appeal  is 
determinefl  is  unconstitutional. '- 

30  Ga.  43:  Hayes  v.  Ottawa  &c.  R.  Kans.    50,   22    Pac.    985,    40    Am.    & 

Co..  54   111.  ^7?):   Klizabethtown   R.  Eng.  R.  Cas.  499;   Republican  Val- 

Co.    V.    Helm,    8    Rush    (Ky.)    681:  ley    &c.    R.    Co.   v.    Fink.    18    Nebr. 

Henderson    &c.    R.    Co.    v.    Dicker-  82,  24  N.  W.  439:  Gulf  &c.  R.  Co. 

son.  17  B.  Mon.  TKy.)  173,  66  Am.  v.  Donahoo,  59  Tex.  128:  Shepard- 

Dec.  148:  New  Orleans  &c.  R.  Co.  son    v.    Milwaukee    &c.    R.    Co.,    6 

V.  Lagarde,  10  ba.  Ann.  150:  Brown  Wis.  605;  Powers  v.  Bears,  12  Wis. 

V.    Realty,    34    Miss.    227,    69    Am.  214.      See    generally    Ackerman    v. 

Dec.   389:    Oregon    Central    R.    Co.  Huff,  71  Tex.  317.  9  S.  W.  236.  36 

V.    Wait.   3    Ore.    91:   Woodfolk    v.  Am.   &   Eng.   R.    Cas.   589.      A   de- 

Xashville     &c.     R.     Co.,     2     Swan  posit  on  condition  is  not  sufficient. 

(Tenn.)  422:  Buffalo  Bayou  &c.  R.  Kannc  v.  IMinneapoIis   &c.   R.   Co.. 

Co.  V.  Ferris.  26  Tex.  588:  Railroad  30  Minn.  423.  15  N.  W.  871.     The 

Co.  V.   Halstead.  7  W.  \'a.  301.     .\  deposit    is    held    to    be    at    the    risk 

land-owner's  right  to  insist  on  hav-  of    the     companj-.       Blackshire     v. 

ing  his  damages  first  assessed  and  .\tchison  &c.  R.  Co..  13   Kans.  514: 

paid  is  waived  bj'  acquiescence   on  Toledo    &c.    R.    Co.    v.    Dunlap,    47 

his    part    in    the    construction    and  Mich.  456,  11   N.  W.  271. 

operation    of    the    road    across    his  '-  Consumers'     Gas     &c.     Co.     v. 

land:    and    he    can    not    thereafter  Harless.    131     Tiul.    446,    29    X.    E. 

maintain   ejectment  to   recover  the  1062.    15    b.    R.    A.    505:    Meily    v. 

land,   but   is    limited   to   his    action  Zurmehly,   23    Ohio    St.   627:    State 

for  the  value  of  the  land.     Mc.Au-  v.    Lubke,    15    yio.    App.    152:    St. 

lay  v.  Western   &c.   R.   Co..  :^3  \'t.  l.ouis   &c.   R.   Co.  v.  Evans   &c.   B. 

311.   78   Am.   Dec.   627:    Provolt   v.  Co..  85  Mo.  307:  New  York  &c.  R. 

Chicago  R.  Co.,  57  Mo.  256:  Strick-  Co..   Matter  of,  98  N.   V.   12.     But 

ler    V.    Midland    R.    Co.,    125    Ind.  it  is  also  held  in  the  first  case  cited 

412.  25  N.  E.  455:  Smart  v.   Ports-  in   this   note   that  there   is  no   such 

mouth  R.  Co.,  20  N.  H.  233.  objection  to  the  statute  if  it  mere- 

^'  Reynolds.    Ex    parte.    52    Ark.  \y    i^crmits    the    condemning    party 

330.  12  S.  W.   570:   St.  Joseph  &c.  to   pay  the  assessed   damages   into 

R.   Co.  V.   Callender.  13  Kans.  496:  court  for  the  use  of  the  landowner, 

bcavenworth   &c.   R.   Co.   v.   Whit-  and   that   such    pa\nnent   is   equiva- 

rkcr,    42    Kans.    634,    2Z    Pa'\    733:  lent   to  a  tender,   and   confers  a   li- 

Chicago  &c.   R.  Co.  v.  \\'atkins.  43  cense  to  take  possession  even  when 


1049 


REMKDIES  OF  LAND-OWXERS 


§  1361 


§  1361  (1052).  Acceptance  of  damages — Estoppel. — The  land 
t-\vner  may  l)c  estopped  from  questionins;-  the  proceeding's  in 
condemnation  cases  by  sucli  acts  or  conduct  as  makes  it  in- 
equitable for  him  to  deny  the  validity  of  such  proceedings.  The 
rule  that  parties  will  not  be  permitted  to  occupy  inconsistent 
positions  applies  to  such  cases.  The  acceptance,  by  the  land- 
owner, of  the  damages  awarded  generally  estops  him  to  question 
the  award  by  appeal."    A  right  to  payment  or  tender  of  damages 


an  appeal  is  prosecuted.  See  also 
Baltimore  &c.  R.  Co.  v.  Johnson, 
84  Ind.  420;  Reisner  v.  Atchison 
&c.  R.  Co.,  27  Kans.  382. 

13  Whittlesey  v.  Hartford  &c.  R. 
Co.,  23  Conn.  421:  Hitchcock  v. 
Danbury  &c.  R.  Co.,  25  Conn.  516; 
Kile  V.  Yellowhead.  80  111.  208; 
St.  Louis  &c.  R.  Co.  V.  Karnes.  101 
111.  402;  Baltimore  &c.  R.  Co.  v. 
Johnson,  84  Ind.  420;  Logan  v. 
Vernon  &c.  R.  Co..  90  Ind.  552; 
Mississippi  &c.  R.  Co.  v.  Bying- 
ton,  14  Iowa  572;  Marling  v.  Bur- 
lington &c.  R.  Co.,  67  Iowa  331. 
25  N.  W.  268;  Challiss  v.  Atchison 
&c.  R.  Co.,  16  Kans.  117;  Hatch 
V.  Hawkes.  126  Mass.  177;  Chat- 
terton  v.  Parrott,  46  Mich.  432.  9 
N.  W.  482;  Rcntz  v.  Detroit.  48 
Mich.  544.  12  N.  W.  694.  911; 
Hunter  v.  Jones.  13  Minn.  307; 
Brooklyn  Park  Co.  v.  Amstrong, 
45  N.  Y.  234,  6  Am.  Rep.  70;  Parks 
V.  Dallas  Terminal  R.  Co.,  34  Tex. 
Civ.  App.  341,  78  S.  W.  533; 
Drouin  v.  Boston  &c.  R.  Co.,  74 
Vt.  343,  52  Atl.  957;  Burns  v.  Mil- 
waukee &c.  R.  Co.,  9  Wis.  450; 
Moore  v.  Roberts,  64  Wis.  538.  25 
N.  W.  564.  See  also  Chicago  &c. 
R.  Co.  V.  Kemper.  256  Mo.  279, 
166  S.  W.  291;  Kansas  City  &c.  R. 
Co.  V.  Second  St.  Imp.  Co.,  256 
Mo.  386,   166   S.   W.   296;    Felch    v. 


Oilman.  12  Vt.  38;  McKain  w  .Mul- 
len, 65  W.  Va.  558.  64  S.  E.  829. 
29  L.  R.  A.  (N.  S.)  1  and  note, 
covering  the  general  subject  and 
reviewing  manj'  cases,  also  note  in 
Ann.  Cas.  1915D,  821;  Starrett  v. 
Young,  14  Wyo.  146,  82  Pac.  946. 
But  see  Indianapolis  Tract.  Co.  v. 
Ripley.  175  Ind.  103,  93  N.  E.  546; 
Chicago  Great  Western  R.  Co.  v. 
Kemper,  256  Mo.  279.  166  S.  W. 
291,  Ann.  Cas.  1915D,  815(estopped 
to  (luestion  irregularities  but  not 
amount  of  award);  Low  v.  Con- 
cord R.  Co.,  63  N.  H.  557.  3  Atl. 
739;  Weyer  v.  Milwaukee  &c.  R. 
Co..  57  Wis.  329,  15  N.  W.  481. 
And  taking  possession  of  the  prem- 
ises and  paying  the  award  has 
been  held  to  estop  the  party  con- 
demning from  denying  the  validit}- 
of  the  condemnation  proceedings 
in  a  suit  to  recover  the  amount  of 
the  award.  Corwith  v.  Hyde  Park, 
14  111.  App.  635;  State  v.  Lubke,  15 
^lo.  App.  152.  See  also  Missouri 
Pac.  R.  Co.  V.  Gruendel,  3  Kans. 
App.  53.  44  Pac.  439.  See  Rothan 
V.  Railroad,  113  Mo.  132,  20  S.  W. 
892;  St.  Louis  &c.  Ry.  Co.  v.  Clark, 
119  ^lo.  357,  24  S.  W.  157.  Under 
some  statutes  the  company  may 
l)ay  the  award  into  court,  take  pos- 
session and  still  appeal.  Douglas 
\-.     Indianapolis    &c.    Co..    7)7    Ind. 


K 1361  RAILROADS  lOlO 

niriy  be  waivetl  by  conduct  as  well  as  by  express  contract.'* 
And  a  land-owner  may  estop  himself  by  giving  credit  to  the 
condemning  party. '■•  It  is  to  be  noted  that  there  is  a  clear  dis- 
tinction between  cases  of  conduct  estopping  a  land-owner  from 
claiming  the  land  itself  and  cases  of  conduct  estopping  him 
irom  claiming  compensation,  for  it  by  no  means  follows  that 
one  who  does  acts  estopping  him  from  claiming  the  land  thereby 
estops  himself  from  claiming  compensation.'" 

App.  352,  76  N.  E.  892;   St.    Louis  ern    Pac.  R.   Co.  v.    I'.uiiiiiKl'Mi   &c. 

&c.   R.   Co.  V.  Aubuchon.    199   Mo.  Co.,  4  Fed.  298. 

359    97  s    W    867  '°  Webster  v.  Kansas  City  &c.  R. 

-Snyder  v.  Chicago  &c.  R.  Co.,  Co.,    116    Mn.    114,    22    S^    W.    474. 

112   Mo.   527.  20  S.  W.  885;    Man-  F-toppel  by  pleadings.     Oregon  &c. 

o        „     ^             T^             .0  ^^-  Co.  V.   Baily,  3  Ore.  164;  Penn- 

chester    &c.    R.    Co.    v.    Keene,    62  ,        ■      o       r,    r-           t,          n    01 

sylvania   &c.   R.   Co.  v.   Bunnell,  81 

^'-    ^^-  ^^-  Pa.    St.    414.      See    also    as    to    the 

«  New  Orleans  &c.  Co.  v.  Jones,  effect    of    the    award    as    a    bar    to 

68  Ala.  48,  2  Am.  &  Eng.  R.  Cas.  recovery  of  damages  subsequently 

425.      See    Payne   v.    Morgan's    &c.  accruing,    Hinckley    v.    Seattle,    74 

R.  Co.,  43  La.  Ann.  981,  10  So.  10;  Wash.  101,  132  Pac.  855,  Ann.  Cas. 

Rio    Grande    &c.    R.    Co.   v.    Ortiz,  1915A,  580,  and  note  reviewing  au 

75  Tex.  602.  12  S.  W^  1129;  North-  thorities. 


CHAPTER  XLII. 
APPEAL  AND   CERTIORARI 

Sec.  Sec. 

1365.  Appeal — When   authorized.  1372.    Trial    de   novo   in    intermedi- 

1366.  Time    within     which     appeal  ate  court. 

■  may  be   taken.  1373.    Appeal — ^liscellaneous    mat- 

1367.  Manner    of    taking    appeal —  ters. 

Parties.  1374.    Costs   of  appeal. 

1368.  Notice— Bond.  1375.    Certiorari. 

1369.  Issues  on  appeal — Questions       1376.    Certiorari — How    obtained — 

determined.  What  must  be  shown. 

1370.  Effect  of  appeal.  1377.    Certiorari  —  Proceedings    on 

1371.  Possession  pending  appeal.  return  of  writ. 

§  1365  (1053).  Appeal — When  authorized. — The  right  of  ap- 
]ieal  where  the  proceedings  are  conducted  in  a  judicial  tribunal 
IS  a  statutory  right. ^  The  legislature  may  regulate  the  mode  of 
taking  and  prosecuting  appeals,  and  may  deny  an  appeal,  except 
in  those  states  where  a  trial  by  jury  is  given  in  all  cases  by  the 
constitution.  In  some  states,  where  the  original  assessment  is 
In-  a  jury  or  judicial  body,  it  is  held  that  the  appeal  may  be  taken 
directly  to  the  supreme  court,  but  as  a  rule  the  case  goes  first 

1  McCardle,    Ex    parte.    7    Wall.  ty,   164  N.   Car.  241,  80  S.   E.  386; 

(U.  S.)  506,  19  L.  ed.  264:  Hough-  Cake    v.    Philadelphia    &c.    R.    Co., 

ton,  Appeal  of,  42  Cal.  35:    La   Croi.x  87  Pa.   St.  307:   Huntington   Co.  v. 

V.  County  Commissioners.  50  Conn.  Kauffman,   126  Pa.  St.  305,  17  Atl. 

321,    47    Am.    Rep.    648;     Sims    v.  595:  Chesapeake   &c.   Co.  v.  Ploye, 

Hines,  121   Ind.  534.  23  N.  E.  515;  2    Grat.    (A"a.)    511:    Hill    v.    Salem 

Reeves    v.     Grottendick,     131     Ind.  &c.    Co.,    1    Rob.    (Va.)    263.      See 

107.    30    N.    E.    889;    Kundinger    v.  also.  Memphis  &c.  R.  Co.  v.  Rirm- 

Saginaw,   59    Alich.   355,   26   N.   W.  ingham  &c.  R.  Co.,  96  Ala.  571,  11 

634;     Minneapolis     v.     Wilkin,     30  So.   642.    18    L.    R.    A.    166:    Cock- 

:\linn.  140,   14  N.  W.  581;   State  v.  croft's    Appeal.    60    Conn.    161,    22 

Slevin,  16  Mo.  App.  541;  State  Res-  Atl.    482:    Chappell   v.    Edmondson 

ervation,  Matter  of,  102  N.  Y.  734,  Ave.    &c.    R.    Co.,    83    Md.    512.   35 

7  N.  E.  916;  Norfolk  Southern  &c.  Atl.   19;   Great  Northern   R.   Co.  v. 

R.   Co.  V.  Ely,  95  N.   Car.  11;   Lu-  Fiske,    54    :\Iont.    231,    169    Pac.   44 

ther  V.  Comrs.  of  Buncombe  Coun-  (and    maj-   be   granted   or  withheld 

1051 


§  1365                                                    KAILUOADS  1052 

into  .'I  trial  court  and  is  tlu-rt'  tried.'-'  In  states  where  the  pro- 
cee(lin,i;"s  originate  in  a  court  of  su])crior  jurisdiction,  from  all 
whose  tinal  orders  judi^nunts  and  decrees  an  appeal  lies,  an 
appeal  from  the  judgment  in  such  proceedings  ma}'  be  prose- 
cuted to  the  proper  appellate  court.'  Tn  such  cases  aj)j)eal  mav 
he  had   from   the   linal  judgment   in   the  case.  l)ut   not.  as  a  rule. 

from   either   party  or   both,   in    tlic  Goor<j;ia    Cent.    R.    Co.    v.   Alabama 

discretion     of     the     legislature.     .sf>  &c.    R.    Co..    130    Ala.    559,    30    So. 

lonij;  as  no  constitutional  provision  5()<).      Sucli    an    .-i])i)cal    is    iienerally 

is    infrinfjcd).      Rut    tliere    is    some  lield    to   lie   where   the   appeal    from 

conflict     of     anthorit}'     upon     this  the  award  of  the  comniissioner.s  is 

poiiU.  for  tliere  are  cases  aftirminji  docketed    in    the    superior   court   as 

that  the  riglit  of  appeal  can  not  be  a  ci\il  .u-tion.     St.  Louis  &c.  R.  Co. 

denied.      Coon    v.    Mason    Co.,    22  \.   i'lvans  I'tc.   Co..  ,S5   .Mo.  307;   San 

III.    666.      The    right    of    appeal    is  hrancisco   iS;c.    R.   Co.  v.   Mahoney. 

favored    and    tlie    courts    generally  29  Cnl.    112;    Morris   v.   Chicago.   11 

so  construe  statutes  as  to  give  the  111.      ()5();      Rice      \.      Danville      &c. 

right   when   it  is  possible   to  do   so.  Turnpike    Co..    7    Dana     (  Ky.)    81; 

Howard    V.    Drainage    Comrs.,    126  Tracy  v.  Elizabethtown  &c.  R.  Co., 

III.   53.    18    N.   E.    313:    Proprietors  7S    Ky.    309:    St.    Paul    &c.    R.    Co.. 

c.f.    &c.    Bridge   v.    New    Hampton.  In  re,  34  .Minn.  227,  25  N.  W.  345. 

47    X.    If.    151:    Hamilton    v.    Fort  See   as    to   practice   on   owner's   ap- 

W'aync.  73  Tnd.   1;  Yclton  v.  Addi-  i)eal     to    district    or    circuit     conrt. 

srui.  101  Ind.  58:  Lawrenceburg  &c.  Craig    v.    Salina    Northern    R.    Co.. 

Co.  v.   Smith.  3   Ind.  253:   Elliott's  102   Kans.  838,    172   Pac.  21:   Tn   re 

Roads  and  Streets   (3rd  ed.)   §  412.  Roard  of  Water  Comrs..  138  Minn. 

See    also    Atlantic    Coast    Line    R.  458,    165    N.    W.  279:    post   §    1750. 

Co.  V.   Soutii   Round   R.    Co.,   57  S.  A   statute   giving  an   appeal    to   the 

Car.  317,  35  S.   E.  553.  supreme    court    in    any    "action    or 

-  Dunlap  V.    Mt.   Sterling.    14   111.  special     proceeding"    was     held    to 

251:   PTardy  v.   McKinney.  107  Ind.  apply  to  condemnation  cases.    Sac- 

364.   8   N.    E.   232;    Mi.ssissippi    &c.  ramento   &c.   R.   Co.  v.    Harlan,  24 

Co.  V.  Rosscau,  8  Iowa  373:   RHze  Cal.    .334;    Raleigh    &c.    R.    Co.    v. 

V.   Castlio,   8   Mo.    App.   290;    York  Jones.     1     Tred.     L.    (N.     Car.)     24: 

Co.  V.   Fcvvcll,  21   S.  Car.   106;  Mil-  Wilmington  &c.  R.  Co.  v.  Condon. 

ler  v.  Prairie  Du  Chien  &c.  R.  Co.,  8  G.  &  J.  (  .Md.)   443. 

34  Wis.  533.     See  generally  Cooper  "St.    Louis    &c.    R.    Co.    v.    T,ux. 

v.    Anniston    &c.    R.    Co.,    85    Ala.  63  111.523.     The  action  of  the  court 

106.   4   So.   689,  36   Am.   it    Eng.    R.  in     sustaim'ng     excei)tions     to     the 

Cas.    581;    Postal    &c.    Co.    v.    .Xla-  commissioner's    report    is    not    an 

bama    &c.    R.    Co..    92    Ala.    331,    9  order    from   which   an    appeal   may 

So.    555;    Memphis    &c.    R.    Co.    v.  be    taken.      Tucker    v.    Massachu- 

Hopkins.   108  Ala.  159,   18  So.  845;  setts   Cent.   R.   Co.,   116  Mass.   124. 


1053                                               AI'PK AL  AXD  CERTIORARI                                         §  1365 

from  inlfrlucutory  orders."*  Tii  most  jurisdictions,  an  order 
merely  appointins^-  commissioners  or  a])praisers  is  not  a  final 
judg-ment    and    no   ai)peal    or   writ   of  error   will    lie   therefrom.'' 

Neither  is  the  refusal  to  dismiss  conducted  accordin<ir  to  the  com- 
an  appeal  to  the  district  court,  in  mon  law.  Peck  v.  Whitney.  6  B. 
which  case  it  is  to  be  tried  de  novo.  Mdu  (  Ky.)  117.  See  Peoria  &c. 
Minnesota  Cent.  R.  Co.  v.  Peter-  Co.  v.  Peoria  &c.  R.  Co.,  105  Til. 
son,  31  Minn.  42,  16  N.  W.  456.  110;  Odum  v.  Rutledge  &c.  Co.,  94 
In  Maryland  the  action  of  the  cir-  .\la.  488.  10  So.  222;  Wilmington 
cuit  court  in  confirming  an  inqui-  &c.  Co.  v.  Condon.  8  Gill  &  J. 
sition  in  condemnation  proceed-  (Md.)44.i.  As  to  wliat  orders  may 
ings  is  exclusive  and  final,  and  he  appealed  from,  see  Spaulding 
appeal  or  error  does  not  lie  to  the  v.  Milwaukee  &c.  R.  Co..  57  Wis. 
supreme  court,  if  the  railroad  com-  .304.  14  N.  W.  368;  Eureka  &c.  R. 
pany  had  any  right  at  all  to  make  Co.  v.  r^IcGrath,  74  Cal.  49,  15  Pac. 
the  condemnation.  Hopkins  v.  360;  San  h'rancisco  &c.  R.  Co.  v. 
Philadelphia  &c.  R.  Co.,  94  Md.  Mahoney.  29  Cal.  112;  La  Salle 
257,  51  At!.  404.  County  Elec.  Ry.  Co.  v.  Hill,  260 
*San  Francisco  &c.  R.  Co.  v.  III.  621.  103  N.  E.  624;  Lake  Shore 
^Lihoney,  29  Cal.  112;  California  &c.  R.  Co.  v.  Whiting.  175  Tnd. 
&c.  R.  Co.  v.  Southern  &c.  R.  Co..  330.  94  N.  E.  326  (statute  author- 
65  Cal.  295,  4  Pac.  13;  Denver  &c.  izing  appeal  from  interlocutory  or- 
R.  Co.  V.  Jackson,  6  Colo.'  340;  der  appointing  appraisers  is  not 
Jacksonville  &c.  R.  Co.  v.  .\dams.  retroactive  and  does  not  even  af- 
29  Fla.  260.  11  So.  169;  Jolinson  feet  proceedings  then  pending); 
V.  Freeport  &c.  R.  Co..  116  111.  Cumberland  &c.  R.  Co.  v.  Penn- 
521.  6  N.  E.  211:  Tracy  v.  Eliza-  sylvania  R.  Co.,  57  ^Id.  267;  War- 
bethtown  &c.  R.  Co.,  78  Ky.  309;  ren  v.  First  Division  &c..  18  Minn. 
Hyattsville  v.  Washington  (Src.  R.  384;  Rensselaer  &c.  R.  Co.  v.  Da- 
Co.,  124  Md.  577,  93  Atl.  151;  ^Ic-  vis.  43  X.  Y.  137;  Beale  v.  Penn- 
Namara  v.  Minnesota  &c.  R.  Co..  sylvania  R.  Co..  86  Pa.  St.  509; 
12  :\Iinn.  388;  St.  Paul  &c.  R.  Co..  Wisconsin  &c.  R.  Co.  v.  Cornell 
In  re,  34  Minn.  227,  25  N.  W.  345;  ^c,  52  Wis.  537,  8  N.  W.  491; 
North  Missouri  R.  Co.  v.  Reynal.  Esch  v.  Chicago  &c.  R.  Co..  72 
25  Mo.  534;  St.  Louis  &c.  R.  Co.  Wis.  229,  39  N.  W.  129. 
V.  Evans  &c.  R.  Co.,  85  Mo.  307;  ''Tennessee  &c.  R.  Co.  v.  Birm- 
Hendricks  v.  Carolina  &c.  R.  Co..  ingham  &c.  R.  Co..  128  .Xla.  526. 
98  N.  Car.  431,  4  S.  E.  184;  Balti-  29  So.  455  (order  of  condemnation 
more  &c.  R.  Co.  v.  Pittsburgh  &c.  may  be  appealed  from);  Denver 
R.  Co..  17  W.  Va.  812:  Panhandle  Power  &c.  Co.  v.  Denver  &c.  R. 
Tract.  Co.  v.  Schenk.  73  W.  Va.  Co..  30  Colo.  204.  69  Pac.  568  (re- 
226,  80  S.  E.  345.  In  some  of  the  fusal  to  apiK)int  commissioner  may 
states  a  writ  of  error  lies  from  a  be  reviewed);  Lafayette  &c.  R.  Co. 
court  in  which  the  i)roceedings  are  v.    Butner.    162    Ind.    460.   70   N.    E. 


§1365 


RAILROADS 


1054 


'I'herc  is  a  difference  between  an  a])peal  to  a  trial  conrt  anrl  an 
a])|)eal  to  a  court  of  errors.  f<>i-  in  tlie  latter  case  the  s^eneral 
rule  is  that  only  questions  of  law  will  be  considered,  while  in 
the  former  the  case  is  usually  tried  de  novo.  It  is  the  rule  in 
many  jurisdictions  that  wdiere  the  case  has  been  tried  de  novo 
Ml  the  court  to  which  the  commissioners'  award  was  taken  for 
review,  the  supreme  court  \\  ill  not  consider  matters  which  arose 
before  the  case  reached  the  court  in  wdiich  such  trial  was  had.° 
As  the  right  to  appeal  is  statutory  the  legislature  may  regulate 
the  mode  of  taking  appeals  and  proNide  wdiat  questions  shall  be 


529  ("no  appeal  from  order  of  cir- 
cuit court  denj-ing  application  for 
appointment  of  appraisers);  De- 
troit &c.  R.  Co.  V.  TTall,  133  Mich. 
302.  94  N.  W.  1066  (no  appeal  from 
allowance  of  attorney's  fees);  De- 
troit &c.  R.  V.  Oakland  County 
Circuit  Judge,  146  Mich.  540,  109 
N.  W.  846  (order  of  dismissal  a 
final  judgment  and  mandamus  will 
not  lie);  Erie  R.  Co.  v.  Steward. 
59  App.  Div.  187,  69  N.  Y.  S.  57 
(no  appeal  from  judgment  award- 
ing condemnation  and  appointing 
commissioners):  Cape  Fear  &c.  R. 
Co.  V.  Steward.  132  N.  Car.  248.  43 
S.  E.  638:  Holly  Shelter  R.  Co.  v. 
Newton.  133  N.  Car.  132.  136.  45 
S.  E.  549  (nn  appeal  from  order 
of  court  directing  clerk  to  hear 
proceedings  and  appoint  commis- 
sioners); Richmond  &c.  R.  Co.  v. 
Johnson.  99  Va.  282.  38  S.  E.  195. 
3  Va.  Sup.  Ct.  233  (no  appeal  from 
order  appointing  commissioners): 
White  Oak  Ry.  Co.  v.  Gordon,  61 
W.  Va.  519,  56  S.  E.  837.  An  or- 
der setting  aside  the  report  of  the 
commissioners  appointed  to  assess 
damages  and  directing  a  new  ap- 
praisement is  interlocutory  and  no 
appeal  will  lie  from  it.     Eufaula  v. 


Ahrens,  58  Okla.  180,  159  Pac.  327. 
A  judgment  adjudicating  the  right 
of  the  petitioner  to  condemn  cer- 
tain land  and  appointing  commis- 
sioners to  assess  damages  is  a 
final  judgment  from  which  an  ap- 
peal lies  where  the  eminent  do- 
main statute  provides  that  the 
statutory  provisions  in  regard  to 
civil  actions  shall  apply  and  such 
statute  relative  to  civil  actions  al- 
lows appeals  from  final  judgments 
in  civil  actions.  ]\IcT>can  v.  Dis- 
trict Court,  24  Idaho  441.  134  Pac. 
536.  Ann.  Cas.  1915D,  542.  Many 
other  cases  are  reviewed  in  the 
note  showing  what  are  rci^arded 
as  final  judgments  and  from  what 
orders  an  appeal  will  lie,  what  in 
various    jurisdictions. 

'■  I'ritton  V.  Clark,  9  Verg.(Tenn.) 
268:  Williamson  v.  Cass,  84  111. 
361.  No  appeal  lies  from  an  order 
of  the  court  confirming  an  inquisi- 
tion condemning  lands  for  the 
construction  of  a  railroad  unless 
the  court  exceeds  its  jurisdiction 
in  i)assing  such  order.  George's 
Creek  Coal  Co.  v.  New  Centra! 
Coal  Co.,  40  Md.  425;  Cumberland 
&c.  R.  Co.  v.  Pennsylvania  R.  Co.. 
57  Md.  267. 


1055 


APPEAL  AND  CERTIORARI 


§  1366 


considered  on  appeal."  An  award  of  damages  for  land  taken  for 
public  purposes  does  not  constitute  a  contract  within  the  mean- 
ing of  the  section  of  the  federal  constitution  forbidding  a  state 
to  pass  laws  impairing  the  validity  of  contracts.*  And  provision 
lor  the  review  of  such  proceedings  may  be  made  by  the  legis- 
lature even  after  the  termination  of  the  proceedings.'' 

§  1366.  Time  within  which  appeal  may  be  taken. — The  time 
within  which  an  appeal  may  be  taken  is  usually  fixed  or  limited 
by  statute.  Where  this  is  so  an  appeal  not  taken  within  such 
time  will  be  unavailing.^''  The  manner  of  computing  the  time 
is  the  same,  in  general,  as  in  other  similar  cases. ^^ 

§  1367.  Manner  of  taking  appeal — Parties. — If  an  appeal  is 
given  and  no  mode  is  prescribed  for  exercising  the  right,  the 
court  will   adopt  the  practice  in  similar  proceedings,  so  far  as 


^  Oliver  v.  Union  &c.  R.  Co.,  83 
Ga.  257,  9  S.  E.  1086;  Reeves  v. 
Grottendick.  131  Ind.  107,  30  N.  E. 
889;  Central  Branch  &c.  R.  Co.  v. 
Atchison  &c.  R.  Co.,  28  Kans.  453, 
10  Am.  &  Eng.  R.  Cas.  528;  Ra- 
leigh &c.  R.  Co.  V.  Jones,  1  Ired. 
L.  (N.  Car.)  24;  Skinner  v.  Nixon, 
7  Jones,  L.  (N.  Car.)  342;  Norfolk 
&c.  R.  Co.  v.  Ely,  95  N.  Car.  11. 
See  Rothan  v.  St.  Louis  &c.  R.  Co., 
113  Mo.  132,  20  S.  W.  892. 

^  Garrison  v.  New  York,  21  Wall. 
(U.  S.)   196,  22  L.  ed.  612. 

9  Baltimore  &c.  R.  Co.  v.  Nesbit, 
10  How.  (U.  S.)  395.  13  L.  ed.  469; 
Henderson  &c.  R.  Co.  v.  Dicker- 
son,  17  B.  Alon.  (Ky.)  173.  (yd  Am. 
Dec.  148.  Although  an  irrepeal- 
able  charter  gives  a  right  of  ap- 
peal to  a  designated  tribunal  the 
legislature  may  alter  the  charter 
by  providing  for  appeal  to  a  dif- 
ferent court  from  that  designated. 
State  v.  Weldon,  47  N.  J.  L.  59,  54 
Am.  Rep.   114,  23   Am.   &   Eng.   R. 


Cas.  134:  Railroad  Co.  v.  Hecht, 
95  U.  S.  168,  24  L.  ed.  423.  We  do 
not  believe  that  it  is  within  the 
power  of  the  legislature  to  con- 
tract that  cases  shall  be  tried  in  a 
specified  court,  since  the  power  to 
establish  courts  and  regulate  prac- 
tice therein  is  a  governmental 
power  which  can  not  be  bargained 
away. 

10  Rennich  v.  Board  of  Comrs. 
of  Lyon  County,  45  Kans.  442,  25 
Pac.  856;  Miller  v.  Union  County, 
48  Ore.  266,  86  Pac.  3;  Seattle  &c. 
R.  Co.  V.  O'Meara,  4  Wash.  17, 
29  Pac.  835. 

11  See  generally  as  to  time  and 
its  computation,  Central  of  Geor- 
.sria  R.  Co.  v.  Alabama  &c.  R.  Co., 
130  Ala.  539,  30  So.  556;  Jamison 
V.  Burlington  &c.  R.  Co.,  69  Iowa 
670,  29  N.  W.  774;  Kansas  City 
&c.  R.  Co.  V.  Hurst.  42  Kans.  462. 
22  Pac.  618;  note  in  15  L.  R.  A. 
(N.  S.)  689. 


S  lo67 


RAILROADS 


1056 


they  can  be  made  applicable.'-  Ordinaril}',  however,  the  manner 
Ml  takinj^  the  ai>i)eal  is  prcscril)ed  by  statute,  in  which  case  the 
provisions  of  the  statute  must  be  sul)stantially  complied  with 
or  the  appeal  will  be  ineffective.'^  An  appeal  is  usually  given 
to  either  ])arty,"  and  this  includes  l)oth  the  condemning  cor- 
poration and  any  owner  of  a  distinct  interest  in  the  property/^ 


'-  Peters  v.  IIastinl,^-;  (S:c.  R.  Co., 
19  Mimi.  260:  DuhiKiue  &c.  R.  Co. 
V.  Crittenden,  5  Iowa  514:  Twom- 
bly  V.  Madbnry,  27  N.  II.  433: 
West  V.  McGurn,  43  Barb.  (N.  Y.) 
198.  Wiierc  the  statute  simply 
provided  that  either  party  might 
take  an  appeal  from  the  award  of 
the  commissioners  to  the  district 
court  within  a  limited  time,  it  was 
held  that  filing  a  transcript  in  the 
district  court  constituted  taking  an 
appeal.  Gififord  v.  Republican  \^al- 
ley  &c.  R.  C<...  20  Ncbr.  533.  31 
N.  W.  11. 

1''  Klein  v.  St.  Paul  &c.  R.  Co.. 
30  Minn.  451,  16  X.  W.  265:  ITart- 
man  v.  Belleville  &c.  R.  Co..  64 
111.  24:  Nebraska  &c.  R.  Co.  v. 
Storer,  22  Nebr.  90,  34  N.  W.  69; 
Jamison  v.  Burlington  &c.  R.  Co., 
69  Iowa  670,  29  X.  W.  774.  See 
Kasson  v.  Brocker,  47  Wis.  79.  1 
X.  W.  418;  Curtis  v.  Jackson,  23 
Minn.  268.  In  New  York  a  C(^n- 
demnation  of  land  under  the  stat- 
ute is  a  "proceeding"  and  not  an 
"action"  and  hence  no  appeal  can 
be  taken  under  the  statute  author- 
izing appeals  in  actions.  Erie  R. 
Co.  v.  .Steward,  59  .•Xpp.  Div.  187. 
69  N.  Y.  S.  57. 

'*  Lee  v.  Northwestern  U.  R. 
Co..  33  Wis.  222:  People  v.  May, 
27  Barb.  (N.  Y.)  238;  Hartman  v. 
Belleville  &c.  R.  Co.,  64  111.  24; 
Chesterfield  &c.  R.  Co.  v.  Johnson. 


58  S.  Car.  560.  30  S.  K.  919.  The 
corporatir)n  can  not  appeal  from 
an  order  apportioning  the  dam- 
ages among  the  sc\-ora!  owners  of 
the  estate  taken.  Haswell  v.  Ver- 
mont Central  R.  Co.,  23  Vt.  228; 
Spaulding  v.  ^Milwaukee  &c.  R. 
Co.,  57  Wis.  304,  14  N.  W.  368,  15 
X.  W.  482;  Yazoo  &c.  R.  Co.  v. 
Longview  Sugar  Co.,  135  La.  542, 
65  So.  638:  Chicago  &c.  R.  Co.  v. 
Baker.  102  Mo.  553,  15  S.  W.  64. 
See  Cliicago  &c.  R.  Co.  v.  Grovier, 
41  Kans.  685.  21  Pac.  779,  39  .\m. 
&  Eng.  R.  Cas.  146;  Connable  v. 
Chicago  &c.  R.  Co..  60  Iowa  27. 
14  X.  W.  75:  Cedar  Rapids  &c.  R. 
Co.  V.  Chicag..  &c.  R.  Co..  60  Iowa 
35,  14  X.  W.  76;  Chicago  &c.  R. 
Co.  V.  Easley,  46  Kans.  337,  26 
Pac.  731:  Chicago  &c.  R.  Co.  v. 
Ellis.  52  Kans.  41.  48.  33  Pac.  478. 
34  Pac.  352;  Michigan  &c.  R.  Co. 
V.  Barnes.  40  Mich.  383;  Troy  &c. 
R.  Co.  V.  Xorthern  &c.  Co.,  16 
Barb.    (X.  Y.)    100. 

^•' W^ashburn  v.  .Milwaukee  (!tc. 
R.  Co.,  59  Wis.  379.  18  X.  W'.  431; 
Wilkin  V.  St.  Paul  &c.  R.  Co..  22 
Minn.  177:  Di.xon  v.  Rockwell  &c. 
R.  Co.,  75  Iowa  367.  39  X.  W.  646; 
Gage  V.  Chicago.  141  111.  642,  31 
X.  E.  163:  Chicago  &c.  R.  Co.  v. 
Ellis.  52  Kans.  41.  33  Pac.  478.  All 
l)artics  entitled  to  share  in  the 
award  have  a  right  to  appeal  and 
are    concluded    therebj-    if   they    do 


1057 


APPEAL  AND  CERTIORARI 


§  1368 


as.   for   example,   a   mortg"agee/''   who   is   made   a    party    to    the 
record.^' 

§  1368.     Notice — Bond. — Where    notice    of    an    appeal    is    re- 
quired l)v  statute  it  must  be  given  in  the  manner  and  within  the 


not  appeal.  Kafka  v.  Davidson, 
135  Minn.  389,  160  N.  W.  1021. 
The  owner  of  any  distinct  interest 
in  property  in  which  others  also 
hold  an  estate  niaj^  appeal  sepa- 
rate!)'. Lance  v.  Chicago  &c.  R. 
Co.,  57  Iowa  636,  11  N.  W.  612. 
In  this  case,  the  owner  and  the 
mortgagee  were  proceeded  against 
jointly  and  it  was  held  that  the 
owntT  cmild  appeal  from  the 
award  without  joining  the  mort- 
gagee. One  joint  owner  can  not 
prosecute  a  separate  appeal,  but 
all  must  unite  in  a  single  appeal. 
Watson  V.  Milwaukee  &c.  R.  Co., 
57  Wis.  332,  15  N.  W.  468:  Chicago 
&c.  R.  Co.  V.  Hurst,  30  Iowa  73. 
Separate  appeals  bj-  landlord  and 
tenant  can  not  be  consolidated. 
Ortman  v.  Union  Pacific  R.  Co.. 
32  Kans.  419.  As  to  when  wife  of 
land-owner  is  not  a  necessary 
party  to  an  appeal  by  the  railroad, 
see  Cleveland  &c.  R.  Co.  v.  Smith, 
177  Tnd.  524.  97  N.  E.  164.  Tn 
Trustees  v.  Griffith.  263  111.  550, 
105  N.  E.  760.  Ann.  Cas.  1914D, 
1136  n,  it  is  held  that  the  holder 
of  the  said  legal  title  in  trust  for 
another  has  no  interest  entitling 
him    to   appeal. 

1"  Omaha  Bridge  &:.  Terminal 
Co.,  V.  Reed,  69  Nebr.  5.  14,  96  X. 
W.  276.  and  this  has  been  so  held 
where  the  action  had  been  discon- 
tinued as  to  him.  ^^ichi£^an  Air 
Line    R.    Co..    40    ^lich.    383. 


1"  Cedar  Rapids  &c.  Co.  v.  Chi- 
cago &c.  R.  Co.,  60  Iowa  35,  14 
N.  W.  76.  In  some  jurisdictions 
anj-  person  directly  affected  or 
"interested"  or  "aggrieved"  may 
appeal.  Chicago  &c.  R.  Co.  v. 
Grovier,  41  Kans.  685,  21  Pac.  779: 
Michigan  Air  Line  R.  Co.  v. 
Barnes,  40  ^^lich.  383.  See  also 
note  in  Ann.  Cas.  19140,  1139. 
1142  (as  to  appeals  by  tenants  and 
third  persons  generally).  Appeals 
by  tenants  in  common,  see  Ru])- 
pert  V.  Chicago  &c.  R.  Co.,  43 
Iowa  490.  It  has  been  held  that 
where  the  land  in  controvers\-  is 
conveyed  before  the  expiration  of 
the  time  limited  for  appealing  the 
grantee  may  appeal.  Carli  v.  Still- 
water. 16  Minn.  260.  But  com- 
pare Connable  v.  Chicago  &c.  R. 
Co..  60  Iowa  27,  14  N.  W.  75: 
Rines  v.  Portland.  93  Maine  227. 
44  Atl.  925.  See  Trogdcn  v.  Wi- 
nona &c.  R.  Co.,  22  Minn.  T).S: 
Blackshire  v.  Atchison  &c.  R.  Co., 
13  Kans.  514;  INIcIntyre  v.  Easton 
&c.  R.  Co.,  26  N.  J.  E(|.  425.  in  a 
recent  Illinois  case  it  is  held  that 
one  who  is  the  holder  i>f  a  hnre 
legal  title  for  the  exclusive  U'^e 
and  benefit  of  another  has  no  in- 
terest that  will  entitle  him  to  re- 
view-of  a  proceeding  to  condemn 
the  property.  Trustees  v.  Griffith, 
263  111.  550,  105  N.  E.  760,  Ann. 
Cas.    1914D,    1136. 


§i:^rjf)  RAILROADS  1058 

tliiif  prcscrihcil.'"'  but  in  a  minilKM"  of  jurisdictions  p'artics  in 
court  must  take  notice  ol  the  a])i)eal.'"  A  Ijond  is  also  frequently 
required,  and,  where  such  is  the  case  it  is  deemed  to  be  a  condi- 
tion precedent  and  must  be  such  as  the  statute  prescribes  and 
I'led  within  the  time  designated. 2° 

§1369.  Issues  on  appeal — Questions  determined. —  In  some 
jurisdictions,  issues  formed  in  the  court  l)elow  are  passed  upon 
in  the  same  manner  as  if  the  action  were  originally  brought  in 
the  ai)pellatc  court. -^  The  general  rule  is  that  questions  not  made 

18  Neff  V.  Chicago  &c.  R.  Co..   14  appearance     of     the     defendant     in 

Wis.  370:   Klein  v.  .St.  Paul   &c.  R.  obedience  to  a  snninion.s  to  testify 

Co.,   30   Minn.    451.    16   N.   W.  265;  as    a    witness.      T'eopic    v.    O.sborn. 

Ma.wvell  v.  T.a  Brnne.  68  Towa  689.  20  Wend.   (N.   Y.)    186.     Nor  by  a 

28    X.    W.     18.       Sec    also    United  sjjecial    appearance    on    liis   part    to 

States    V.    Crooks.    116    Cal.    43.    47  move    or    dismiss    the    appeal    for 

Pac.    870:    Atlantic    Coast    Line    R.  lack    of   jnrisdiction.      Klein    v.    St. 

Co.   V.  Sonth   Bound   R.  Co..  57  S.  Paul   &c.   R.   Co..  30  Minn.  451.   16 

Car.  317,  35  S.  E.  553:  Woolard  v.  X.  W.  625.     But  see  Xicol!  v.  Xcw 

Xashville,  108  Tenn.  353.  67  S.  W.  ^■ork  &c.  Co..  62  X.  J.   L.   733.  42 

801.     Where  notices  of  tlie  appeal  .Xtl.   583,   72   .Vm.  St.  666. 

was   required   to  be   served   on    the  ^^  See  Rajmiond  v.   Clay   County, 

r.pposite  party,   it  was  held   insulTi-  68  Towa  130.  26  N.  W.  34:  Weyer  v. 

cicnt  to  serve  nritice  on   the  at  tor-  Milwaukee  &c.  R.  Co..  57  W'is.  329. 

ncy  of  the  railroad  company.  Hart-  15  X^.  W.  481. 

man    v.    Belleville    &c.    R.    Co..    64  20  Weir   v.    St.    Paul    &c.    R.    Co., 

111.  24.     Sec  Contra.  Ilahn  v.  Chi-  18  :^linn.    155.     See  also   McVey  v. 

cago  &c.  R.  Co.,  43  Towa  333.    But  HeavenridRC.    30    Ind.    100:    Leffell 

where  the  land-owner  was  author-  v.  Obcnchain,  90  Tnd.  50;  St.  T,ouis 

izcd  to  serve  notice  of  appeal  upon  &c.   R.   Co.  v.   Alorse.   50   Kans.  99. 

an  agent  of  the   railroad  company,  31    T^ac.  676.     But  a  bond  given  bj'- 

service  upon  the  civil  engineer  em-  one    appellant   with    another   appel- 

plr>yed    to    survej-    and    locate     its  land     as     surety     has     boen      held 

route   was   held   good.     Jamison   v.  sufficient.      Glassburn    v.    Deer.   143 

Burlington    &c.    R.    Co.,    69    Iowa  Tnd.   174,  91   N.  E.  376,  and  courts 

670,  29  N.  W.  774.     Under  a  Wis-  are    not    always    very    strict    in    en- 

consin  statute,  notice  of  the  appeal  forcing  the  general   rule,  especially 

need  not  be  served  on  the  opposite  after  acceptance  of  a  bond. 

party.      Wc>er    v.     ■Milwaukee    &c.  21  Phifer   v.    Carolina    Central    R. 

R.  Co.,  57  Wis.  329,  15  N.  W.  481.  Co..  72  N.  Car.  433;  Schermeely  v. 

Objections    to   the   jurisdiction    for  Stillwater    &c.    Co.,    16    Minn.    506; 

this   cause   are   not   waived  by   the  Breitweiser    v.    Fuhrman,    88    Ind. 


1059  APPEAL  AND  CERTIORAKI  §  186!) 

in  the  court  of  original  jurisdiction  will  not  be  considered  on 
.'i.ppeal.--  Another  generally  accepted  rule  is  that  damages 
awarded  in  condemnation  proceedings  \\\\\  not  be  disturbed  on 
,'il)peal  on  conflicting  evidence  particularly  where  the  jury  or 
the  judge  as  the  jury  viewed  premises  unless  the  award  is  clearly 
against  the  weight  of  the  evidence  or  the  jin"y  or  the  commis- 
sioners proceeded  uponjm  erroneous  principle  or  were  influenced 
by  passion  and  prejudice."''    And  where  the  amount  ;illowed   in 


28:   Hord   v.   Nashville   &c.   R.   Co..  held    that    qncstinns    involving    the 

2  Swan  (Tenn.)  597.  In  some  states  reimrt    of    the    eoniniissioners    and 

the    appellate    court    must    proceed  other  steps  taken  in  the  case  would 

accordins;     to     the     practice     pre-  not  be  reviewed  on  appeal.     City  of 

scribed      for      the      commissioners.  St.  Louis  v.  Glasgow,  254  y]n.  262, 

Gold    V.    \'ermont    Central    R.    Co..  162  S.  W.  596. 

19   Vt.   478.  23  :\[ctropolitan     &c.     R.     Co.     v. 

^-'Sccombe    v.    Railroad    Co..    23  :\rcFarland,    20    .\pp.    (D.    C.)    421: 

Wall.    (U.    S.)    108,    23    L.    ed.    67:  Conness  v.  Indiana  &c.  R.  Co.,  193 

Booker  v.   Venice   &c.   R.   Co..   101  111.  464,  62  N.  E.  221;  Chica.go  &c. 

111.  333,  5  Am.  &  Eng.  R.  Cas.  357:  R.    Co.    v.    ^lorrison,    195    111.   271, 

Fitchburg    R.    Co.    v.    Boston    &c.  63   N.   E.   96:    Lanciuist  v.    Chicago. 

Co..  3  Cush.   (Mass.)   58.     Webster  200  111.  69,  65  N.  E.  681:    East  &c. 

V.  Kansas  City  &c.  R.  Co.,  116  Mo.  R.  Co.  v.  ^liller.  201  111.  413,  66  X. 

114,  22  S.  W.  474;   Stone  v.  Dela-  E.  275;   Illinois   i"tc.   R.   Co.  v.   ITn- 

ware   &c.   R.   Co.,  257  Pa,  456,   101  miston,  208  111.   100,  69   N.   E.  880: 

Atl.    813;    Quanah    &c.    R.    Co.    v.  Brown   v.    Illinois   &c.    R.    Co..  209 

Collett  (Tex.  Civ.  App.),  190  S.  W.  111.  402,  70  N.  E.  905:  St.  Louis  &c. 

1128;  Baltimore  &c.  R.  Co.  v.  Pitts-  R,     Co.    v.     Union     Trust     &     Sav. 

burg  &c.  Co.,  17  W.  Va.  812.     See  Bank,   209    111.   457,   70    N.    E.   651; 

also    Colorado    Midland    R.    Co.    v.  Dowie   v.   Chicago   &c.   R.   Co.,  214 

Brown,    15    Colo.    193,   25    Pac.    87;  111.  49,  73   N.   E.  354:   Chicago  &c. 

Colorado  Fuel  &  Iron  Co.  v.  Four  R.   Co.  v.   Loer.  27   Ind.   App.  245, 

Mile   R.    Co..  29   Colo.  90,   66  Pac.  60  N.  E.  319;  Abney  v.  Texarkana 

902:   Lake  Erie  &c.  R.   Co.  v.  Ko-  &c.  R.  Co.,  105  La.  446,  29  So.  890: 

komo,    130   Ind.  224,  29  N.   E.   780;  Texas    &c.    R.    Co.    v.    Wilson,    108 

Benton    IlarbiT    Terminal    R.    Co.  La.   1,  32  So.   173;   Houston   &c.   R. 

V.   King.   131    Mich.   377,  91    N.   W.  Co.   v.  Kansas  City  &c.  R.  Co..  109 

641:    :\litchell    v.    Metropolitan    El.  La.    581.   33    So.    609:    Xatchitoches 

R.  Co.,  132  X.  Y.  552,  10  X.  E.  385:  &c.   R.   Co.  v.   Henry.   109   La.  669. 

Eno  V.  Manhattan  R.  Co.,  21  App.  33   So.   725:    Opelausas   &c.   R.   Co. 

Div.  548,  48  N.  V.  S.  516.     Where  v.  Bradford,  118  La.  506.  43  So.  79: 

the    circuit    court    did    not    obtain  Man|uette   iSic.  R.  Co.  v.  Longyear. 

jurisdiction  to  try  the  case,  it  was  133  .Mich.  94,  94  X.  W.  670,  10  Dct. 


n370 


RAILROADS 


1060 


condemnation  i)rocee(ling:S  for  dama.G^c  to  lands  not  taken  is 
within  the  range  of  the  testimony,  the  award  for  such  damage 
should  not  he  disturbed  for  errors  in  instructions  wiiich  could 
not  have  operated  to  petitioner's  prejudice.-*  If  an  ai)pcal  is 
taken  from  an  award  of  damages  covering  more  than  one  tract 
of  land,  the  order  may  be  reversed  as  to  one  of  the  tracts  and 
affirmed  as  to  another.-^ 

§  1370.     Effect  of  appeal. — In  some  jurisdictions  the  effect  of 
an  appeal  is  to  vacate  the  proceedings  appealed  from,-"  but  in 


Lcp.  X.  Ill:  Detroit  &c.  R.  Co. 
V.  Hall.  133  Mich.  302,  94  N.  W. 
1066:  Manhattan  R.  Co.  v.  Corn- 
stock.  74  .-\pp.  Div.  341,  77  N.  Y. 
S.  416:  T.ons  Island  &c.  R.  Co.  v. 
Reilly,  89  App.  Div.  166,  85  X.  Y. 
S.  875:  Buffalo  &c.  R.  Co.  v. 
Phelps,  102  X.  Y.  S.  214:  South- 
port  &c.  R.  Co.  v.  Owners  of  Piatt 
Land.  133  X.  Car.  266.  45  S.  R. 
589.  The  trial  court's  findings  on 
substantial  evidence  are  not  review- 
able. City  of  St.  T.ouis  v.  Semple 
(Mo.),  199  S.  W.  967:  Ogden  &c. 
R.  Co.  V.  Jones.  51  Utah  62.  168 
Pac.  548.  But  see  where  evidence 
was  all  in  affidavits  and  written 
stipulations,  Fairmount  &c.  Ry. 
Co.  V.  Rethkc.  37  S.  Dak.  446,  159 
X.  W.  56. 

-'  Groves  &c.  R.  Co.  v.  Herman, 
206  111.  34,  69  X.  E.  36. 

^■'•Stockton  &c.  R.  Co.  V.  Gal- 
>.nani.  49  Cal.  139:  Chicago  &c.  R. 
Co.  V.  Hildebrand,  136  III.  467,  27 
X.  K.  69.  See  also  Bigelow  v. 
Draper.  6  X.  Dak.  152.  69  X.  W. 
570.  But  compare  Peak  v.  Kings 
County  &c.  R.  Co.,  83  App.  Div. 
631.  81  N.  Y.  926.  The  objection 
that  several  tracts  of  land  were 
improperly  joined  in  a  single  joint 


assessment  can  not  be  made  for 
the  first  time  on  appeal.  Kanka- 
kee &c.  R.  Co.  V.  Chester,  62  III. 
235.  Where  a  single  owner  takes 
several  appeals  as  to  different 
tracts  of  land  for  which  the  dam- 
ages were  assessed  in  a  single  pro- 
ceeding the  appeals  maj-  be  con- 
solidated. Washburn  v.  Milwau- 
kee &c.  R.  Co..  59  Wis.  364.  18  X. 
W.  328.  In  some  jurisdictions,  or- 
dinarily, at  least  where  there  is 
but  one  parcel  of  land  involved, 
the  railroad  company  can  not  ap 
peal  from  only  a  portion  of  the 
award  with  which  it  is  dissatisfied, 
but  must  appeal,  if  at  all,  from  the 
.nssessment  or  award  as  an  entire- 
ty. Great  Northern  R.  Co.  v. 
Fiske,  54  Mont.  231.  169  Pac.  44. 
See  generally  upon  the  subject  of 
reversing  in  part,  Wisconsin  Sec. 
R.  Co.  V.  Cornell  &c.,  49  Wis,  162. 
5  N.  W.  331. 

-"  Kansas  v.  Kansas  Pacific  R. 
Co.,  18  Kans.  331:  Pool  v.  Breese, 
114  III.  594,  3  N.  R.  714.  See  also 
Georgia  Granite  R.  Co.  v.  Vena- 
ble,  129  Ga.  341.  58  S.  E.  864;  Jer- 
sey City  &c.  R.  Co.  V.  Central  R. 
Co.,  48  N.  J.  Eq.  379,  22  Atl.  728. 
Where    the    land-owner    appeals,    a 


1061 


APPEAL  AND  CERTIORARI 


§  1371 


fitlicr  jurisdictions  a  dififerent  rule  prevails.''  So,  it  has  been 
held  that  an  appeal  by  some  of  the  parties  does  not  suspend 
proceeding's  as  to  others  who  do  not  appeal. ^^ 

§  1371  (1050).  Possession  pending  appeal. — In  some  states 
liavint;  constitutions  silent  as  to  the  time  of  making'  compensa- 
tion, statutes  providins:;'  that  the  railroad  company  shall  have 
possession  of  the  land  without  other  security  than  that  afforded 
by  a  definite  mode  of  ascertaining'  and  obtaining  judgment  for 
its  value  have  been  upheld,-''  but.  as  elsewhere  said,  we  believe 
this  doctrine  to  be  unsound.  Where,  however,  damages  are 
assessed  and  tendered  or  paid  into  court,  then  we  think  it  clearly 
competent  for  the  legislature  to  provide  that  the  company  may 
enter  into  possession  although  there  is  an  appeal.  It  is  held  that 
the  right  of  the  railroad  company  to  take  possession  pending  an 
appeal  depends  wholly  upon  the  authority  of  the  statute,  and  a 
tender  of  the  damages  awarded  confers  no  rights  upon  the  com- 


discontinuance  of  the  proceeding 
by  the  railroad  company  will  per- 
manently vacate  the  award.  Wright 
V.  Wisconsin  Central  R.  Co..  29 
Wis.  341. 

-"  Lake  Eric  &c.  R.  Co.  v.  Kin- 
sey,  87  Ind.  514,  14  Am.  &  Eng.  R. 
Cas.  309;  St.  Louis  &c.  R.  Co.  v. 
Clark,  119  Mo.  357,  24  S.  W.  157. 
See  generally  Peterson  v.  Eerreb}-. 
30  Iowa  327;  Broadmoor  Land  Co. 
V.  Curr,  133  Eed.  2)7 \  Corbin  v. 
Cedar  Rapids  &c.  R.  Co.,  66  Iowa 
72,  23  N.  W.  270;  Sedalia  v.  Mis- 
souri &c.  R.  Co.,  17  Mo.  App.  105; 
New  York  &c.  R.  Cy^.  v.  Town- 
send,  36  Hun  (N.  Y.)  630;  State 
V.  Jones,  139  N.  Car.  613,  52  S.  E. 
240,  2  L.  R.  A.  (N.  S.)  313. 

-s  Schuchman  v.  Comr's..  52  111. 
App.  497;  Eleener  v.  Claman,  126 
Ind.  166,  25  N.  E.  900;  Missouri 
Pac.  R.  Co.  V.  Gruendel.  3  Kans. 
App.    53,   44    Pac.   439.     Where   an 


order  of  condemnation  was  made 
and  the  property  owner  took  an 
appeal  from  such  interlocutory  or- 
der, which  was  ultimately  reversed, 
but  in  the  interval  appraisers  had 
been  appointed  and  judgment  had 
been  rendered  for  the  damages 
found  from  which  the  condemnor 
had  appealed,  it  was  held  that  such 
judgment  for  damages  should  be 
reversed,  as  of  course,  on  the 
strength  of  the  reversal  of  the  in- 
terlocutory- order.  Western  U. 
Tel.  Co.  v.  Louisville  &  N.  R.  Co., 
185  Ind.  690,  114  N.  E.  406. 

29  Raleigh  &c.  R.  Co.  v.  Davis. 
2  Dev.  &  B.  L.  (N.  Car.)  451;  Mc- 
Tntire  v.  Western  N.  C.  R.  Co..  67 
N.  Car.  278;  Nichols  v.  Somerset 
&c.  R.  Co.,  43  Maine  356;  Tucka- 
hoe  Canal  Co.  v.  Tuckahoe  &c.  R. 
Co.,  11  Leigh.  (Va.)  42.  26  Am. 
Deo.  374;  Hazcn  v.  Essex  Co..  12 
Cush.     (Mass.)     475.       See     Mount 


§1371 


RAILROADS 


1062 


\)-AUv  iH)t  i^T.-mtcd  l)y  ex|)ress  provision  of  l;i\\-."°  The  fact  that 
it  has  not  been  finally  dcterniined  what  amount  of  compensation 
shall  be  made  for  the  property  taken  does  not  invalidate  a  law 
permiltint^'  the  railroad  company  to  take  possession  ix-ndini^'  ;  p- 
peal  upon  payini^  the  amount  of  the  commissioner's  award  (jr 
(iepositini^  the  same  in  court  for  the  benefit  of  the  land-owner, 
even  in  states  which  require  payment  of  the  compensation  to 
precede  the  taking.'"'    The  general  rule  is  that  the  railroad  com- 


\\'asliinKt<">ii  Road  Co..  Petition  of, 
35  N.  H.  134.  Similar  statutes 
have  been  upheld  in  either  states 
in  which  the  constitutions  have 
since  been  changed.  New  Albany 
&c.  R.  Co.  V.  Connelly,  7  Ind.  32: 
Prather  v.  Jeffersonville  &c.  R.  Co., 
52  lufl.  16:  Bates  v.  Cooper,  5  Ohio 
115:  Conipton  v.  Susquehanna  R. 
Co..  3  Bland  Ch.  (Md.)  386;  Har- 
ness V.  Chesapeake  &c.  Canal  Co., 
1    y\(].   Ch.  248. 

•''0  Browning  v.  Camden  &c.  R. 
Co..  4  N.  J.  Eq.  47;  Colvill  v.  Lang- 
don.  22  Minn.  565.  See  also  Cham- 
bers V.  Cincinnati  &c.  R.  Co.,  69 
Ga.  320;  Lake  Erie  &c.  R.  Co.  v. 
Kinsey,  87  Ind.  514;  Cleveland  &c. 
R.  Co.  V.  Nowlin.  163  Ind.  497,  72 
X.  E.  257;  Hamilton  v.  Maysville 
&c.  R.  Co.,  27  Ky.  L.  251,  84  S. 
W.  778;  Jersey  City  &c.  R.  Co.  v. 
Central  R.  Co.,  48  N.  J.  Eq.  379, 
22  Atl.  728;  Hausmann  v.  Trinity 
&c.  R.  Co.  (Tex.  Civ.  App.),  82 
S.  W.  1052;  Gulf  &c.  R.  Co.  v. 
Southwestern  &c.  Tel.  Co..  25  Tex. 
Civ.  App.  488,  61  S.  W.  406;  Texas 
&c.  R.  Co.  V.  Orange  &c.  R.  Co., 
29  Tex.  Civ.  App.  38,  68  S.  W.  801. 

•■'^  Baltimore  &c.  R.  Co.  v.  John- 
son, 84  Ind.  420;  Lake  Erie  &c.  R. 
Co.  V.  Kinsey,  87  Ind.  514:  Hast- 
ings v.  Burlington  &c.  R.  Co.,  38 
Iowa  316;  Downing  v.  Des  Moines 


&c.  R.  Co..  63  Iowa  177,  18  N.  W. 
862;  Central  P.ranch  R.  Co.  v.  At- 
chison &o.  R.  Co.,  28  Kans.  453; 
Arnold  v.  Covington  &c.  Bridge 
Co.,  1  Duvall  (Ky.)  372;  St.  Louis 
Sec.  R.  Co.  V.  Evans  &c.  Co.,  85 
Mo.  307;  Cooper  v.  Chester  R.  Co., 
19  N.  J.  Eq.  199;  Mercer  &c.  R.  Co. 
V.  Delaware  &c.  R.  Co.,  26  N.  J. 
Eq.  464;  New  York  Central  &c.  R. 
Co.,  Matter  of,  60  N.  Y.  116;  New 
York  &c.  R.  Co.,  Matter  of,  98  N. 
Y.  12;  Schuler  v.  Northern  Liber- 
ties &c.  R.  Co.,  3  Whar.  (Pa.)  555; 
Railroad  Co.  v.  Foreman,  24  W. 
Va.  662.  See  also  Savannah  &c. 
R.  Co.  V.  Postal  Tel.  &c.  Co.,  115 
Ga.  554,  42  S.  E.  1;  Oliver  v.  Un- 
ion Point  R.  Co.,  83  Ga.  257,  9  S. 
E.  1086;  Consumers'  Gas  &c.  Co. 
V.  Harless,  131  Ind.  446,  29  N.  E. 
1062,  15  L.  R.  A.  505:  Wabash  R. 
Co.  V.  Ft.  Wayne  &c.  Co.,  161  Ind. 
295,  67  N.  F.  674;  Terre  Haute  &c. 
R.  Co.  V.  Flora,  29  Ind.  App.  442. 
64  N.  E.  648.  In  order  to  be  effec- 
tual in  giving  the  railroad  com- 
pany the  right  to  take  possession, 
the  deposit  must  be  unconditional, 
and  subject  to  the  absolute  control 
of  the  land-owner.  Kanne  v.  Min- 
neapolis &c.  R.  Co.,  30  Minn.  423; 
Arnold  v.  Covington  &c.  Bridge 
Co.,  1  Duvair  (Ky.)  372.  Where 
the  railroad  company  has  aiijiealed 


1063                                                API'KAIi  AXD  CEKTIOKAUI  §1371 

p.'iny  may,  nolwilhstandini^-  such  ajjpcal.  enter  upon  the  land 
and  proceed  to  construct  its  road  ujx)!!  i)ayins^  or  tendering-  the 

damag-es  assessed  below.''-    Rut  if  the  damat^es  are  increased  on 

ai)peal.  the  railroad  company  must  ])ay  the  additional  sum 
awarded,  or  it  will  be  held  liable  as  a  trespasser  ah  initio,  and 
may  be  dispossessed  by  an  action  of  ejectment  where  there  is 
no  element  of  estoppel. 

from  the  award,  but  has  dcposite<l  stein.  50  Cal.  284;  Sanborn  v.  Bcl- 
the  damages  awarded  and  taken  den,  51  Cal.  266;  Vilhac  v.  Stock- 
possession,  the  land-owner  is  en-  ton  &c.  R.  Co.,  53  Cal.  208;  Cox 
titled  to  such  damages  upon  prop-  v.  Louisville  &c.  R.  Co.,  48  Ind. 
er  demand  made  upon  the  clerk  178;  Richards  v.  Des  Moines  &c. 
of  the  court.  Meyer  v.  State,  125  R.  Co.,  18  Iowa  259;  Gear  v.  Du- 
Ind.  335,  25  N.  E.  351.  A  law  buque  &c.  R.  Co.,  20  Iowa  523,  89 
which  permits  the  railroad  com-  Am.  Dec.  550;  Evansville  &c.  R. 
pan3'  to  take  possession  upon  pay-  Co.  v.  Grady,  6  Bush.  (Ky.)  144; 
ing  into  court  the  amount  of  the  O'Hara  v.  Lexington  &c.  R.  Co., 
award  but  provides  that  the  money  1  Dana  (Ky.)  232;  New  Orleans 
shall  not  be  paid  to  the  land-owner  &c.  R.  Co.  v.  Lagarde,  10  La.  .^nn. 
until  the  result  of  the  appeal  is  150;  Cusliman  v.  Smith,  34  Maine 
known,  is  opposed  to  a  constitu-  247;  Thompson  v.  Grand  Gulf  R. 
tional  provision  that  the  payment  Co.,  3  How.  (Miss.)  240,  34  Am. 
of  compensation  must  precede  the  Dec.  81;  Stewart  v.  Raymond  R. 
taking.  Meily  v.  Zurmehly,  23  Ohio  Co..  7  S.  &  M.  (Miss.)  568;  Mem- 
St.  627.  A  land-owner  who  accepts  phis  &c.  R.  Co.  v.  Payne.  37  Miss, 
the  amount  of  the  award  is  himself  700;  Walther  v.  Warner.  25  Mo. 
estopped  to  prosecute  an  appeal.  277;  Ray  v.  Atchison  R.  Co.,  4 
Baltimore  &c.  R.  Co.  v.  Johnson,  Nebr.  439;  Blodgett  v.  Utica  &c. 
84  Ind.  420;  Mississippi  &c.  R.  Co.  R.  Co.,  64  Barb.  (N.  Y.)  580;  Fer- 
v.  Byington,  14  Iowa  572;  Whit-  ris  v.  Bramble,  5  Ohio  St.  109;  Lev- 
tlesey  v.  Hartford  &c.  R.  Co.,  23  ering  v.  Philadelphia  &c.  R.  Co., 
Conn.  421;  Burns  v.  Milwaukee  8  Watts  &  S.  (Pa.)  459;  :\IcClinton 
&c.  R.  Co.,  9  Wis.  450;  Kile  v.  v.  Pitt.sburg  &c.  R.  Co.,  66  Pa.  St. 
Yellowhead.  80  111.  208;  Felch  v.  404;  Shepardson  v.  Milwaukee  &c. 
Gilman,  22  Vt.  .38.  R.  Co.,  6  Wis.  605;  Loop  v.  Cham- 
32  In  most  of  the  states  in  which  berlain.  20  Wis.  135;  Kennedy  v. 
payment  of  the  compensation  is  Milwaukee  &c.  R.  Co..  22  Wis.  581 ; 
required  to  precede  the  taking,  a  Bohlman  v.  Green  Bay  &c.  R.  Co., 
tender  of  payment  or  its  equiva-  30  Wis.  105.  A  law  providing  that 
lent  is  held  to  be  necessary'  before  the  court,  before  which  the  pro- 
possession  can  be  taken.  Graham  cecdings  to  condemn  land  for  a 
V.  Columbus  &c.  R.  Co.,  72  Ind.  railroad  right  of  way  arc  pending. 
260;    San    IMateo   W.   W.   v.   Sharp-  may    make    an    order    allowing   the 


§  1372  RAILROADS  1064 

i^  1372.  Trial  de  novo  in  intermediate  court. —  In  many,  il  not 
most,  jurisdictions  an  appeal  is  first  taken  to  tiie  circuit  or  other 
intermediate  court  and  g^oes  there  for  a  trial  de  novo  rather  than 
as  upon  a  writ  of  error.-'^  i^x  idence  is  then  lieard  in  general,  just 
as  if  the  case  had  commenced  there,^''  l)ut  as  to  the  plea(lin,u>  and 


company  to  continue  in  possession, 
if  possession  lias  been  taken,  and 
if  not,  to  take  and  keep  possession 
of  tlie  land  sought  to  be  condemned 
until  the  proceedings  are  ended, 
upon  paying  into  court  a  sufficient 
sum,  or  executing  a  bond  to  se- 
cure the  payment  of  whatever  com- 
pensation shall  be  legally  assessed, 
is  opposed  to  a  constitutional  pro- 
vision that  the  payment  of  dam- 
ages shall  precede  the  taking  of 
property.  Davis  v.  San  Lorenzo 
R.  Co.,  47  Cal.  517:  Fox  v.  West- 
ern Pacific  R.  Co..  31  Cal.  538;  En- 
ticid  &c.  Co.  V.  Hartford  &c.  R. 
Co..  17  Conn.  40.  42  Am.  Dec.  716 
and  note:  Lake  Eric  &c.  R.  Co.  v. 
Kinsey.  87  Ind.  514:  Richards  v. 
Des  Moines  Valley  R.  Co.,  18 
Iowa  259:  Hibbs  v.  Chicago  &c.  R. 
Co.,  39  Iowa  340:  Conger  v.  Bur- 
lington &c.  R.  Co.,  41  Iowa  419: 
White  V.  Wabash  &c.  R.  Co..  64 
Iowa  281,  20  N.  W.  436;  St.  Joseph 
&c.  R.  Co.  V.  Callender,  13  Kans. 
496;  Rlackshire  v.  Atchison  &c.  R. 
Co.,  13  Kans.  514;  Nichols  v.  Som- 
erset &c.  R.  Co.,  43  Maine  356; 
Harness  v.  Chesapeake  &c.  Canal 
Co.,  1  Md.  Ch.  248;  Walther  v. 
Warner,  25  Mo.  277;  Evans  v.  Mis- 
souri &c.  R.  Co.,  64  Mo.  453; 
Browning  v.  Camden  &c.  R.  Co., 
4  N.  J.  Eq.  47;  Morris  &c.  R.  Co. 
V.  Hudson  Tunnel  R.  Co.,  25  N.  J. 
Ec|.  384;  Redman  v.  Philadelphia 
&c.  R.  Co.,  33  N.  J.  E(|.  165;  Blod- 
gctt  V.  Utica  &c.  R.  Co.,  64  Barb. 


(N.  Y.)  580;  Dater  v.  Troy  &c.  R. 
Co.,  2  Hill  (N.  Y.)  629;  Levering 
V.  Philadelphia  &  R.  Co..  8  Watts 
&  S.  (Pa.)  459;  McClinton  v. 
Pittsburg  &c.  R.  Co.,  66  Pa.  St. 
404;  Loop  V.  Chamberlain.  20  Wis. 
135. 

33  Atlanta  &c.  R.  Co.  v.  Smith, 
132  Ga.  725,  64  S.  E.  1073:  Gard- 
ner V.  Blaine  Co.,  15  Idalio  698, 
99  Pac.  826;  Halstead  v.  Vandalia 
R.  Co.,  48  Ind.  App.  96,  95  N.  E. 
439;  Kelley  v.  Augsperger.  171 
Ind.  155.  85  N.  E.  1004;  Mississippi 
&c.  R.  Co.  V.  Rosseau,  8  Iowa  373; 
Louisville  &c.  R.  Co.  v.  Gerard. 
130  Ky.  18,  112  S.  W.  915:  Kirk- 
wood  V.  Cronin,  259  Mo.  207.  168 
S.  W.  674:  Miller  v.  Prairie  du 
Chien  R.  Co..  34  Wis.  533,  ante  § 
1736.  It  is  lu'Ul  on  the  one  hand 
that  tlu-  petitioner  must  on  such 
appeal  prove  anew  all  jurisdiction- 
al facts  put  in  issue  by  the  excep- 
tions filed  brliiu.  Louisville  &c. 
R.  Co.  V.  Gerard,  130  Ky.  18,  112 
S.  W.  915.  But.  on  the  other  hand, 
it  has  been  held  that  the  defendant 
who  appeals  from  an  award  of 
appraisers  has  the  burden  of  show- 
ing his  damages.  Indiana])olis 
Tract.  &c.  Co.  v.  Ripley,  175  Ind. 
103,  93  N.  E.  546. 

3*KelIog  V.  Price,  42  Ind.  360: 
Chicago  &c.  R.  Co.  v.  Broquet.  47 
Kans.  571,  28  Pac.  717;  Hord  v. 
Nashville  &c.  R.  Co.,  2  Swan 
rTenn.)    497. 


1065  APPEAL  AND  CERTIORARI  §1:37;} 

other  matters  not  connected  with  the  trial,  this  is  not  ordinarily 
the  case.'''^  The  g-eneral  rule  is  that  except  as  to  the  question  of 
jurisdiction  over  the  subject,  a  party  must  raise  in  the  court  of 
original  jurisdiction  all  the  (juestions  that  he  desires  to  raise  on 
.'"ppeal.'"'  And.  as  elsewhere  intimated,  it  is  frecpiently  provided 
I'y  statute  that  certain  (juestions  can  not  be  tried  on  appeal. 
Under  some  statutes,  indeed,  the  only  (juestion  open,  in  general, 
for  trial  de  novo  is  that  of  the  amount  of  damage. ^^ 

§  1373.  (1053a).  Appeal — Miscellaneous  matters. — In  Louisi- 
ana, the  supreme  court  has  jurisdiction  of  all  questions  of  law 
and  fact,  and  all  findings  of  an  expropriation  jury  are  reviewable 
on  appeal  to  that  court.'"*  In  that  state  it  is  held  that  the  report 
of  commissioners  in  condemnation  prf)ceedings  may  be  set  aside 
by  the  district  court,  like  the  verdict  of  a  jury,  on  the  ground 
that  the  amount  allowed  is  too  large.  l)ut  it  can  not  be  increased 
if  too  small,  though  the  law  gives  the  court  the  right  to  "modi- 
fy" the  report  of  the  commissioners.^^  In  Indiana,  it  is  expressly 
provided  by  statute,  that  no  questions  can  be  determined  on 
appeal  from  the  report  of  commissioners,  condemning  a  highway 
across  railroad  tracks,  except  those  of  the  regularity  of  the  pro- 
ceedings and  of  the  amount  of  damages.*^    And  a  railroad  com- 

^''See  Bell  v.  Pavey,  7  Ind.  App.  36  N.  W.  345;  Norfolk  &c.  R.  Co. 

19,   33   N.    E.    1011;    Williamson   v.  v.  El}-,  101   N.  Car.  8,  7  S.  E.  476; 

Houser,  169  Ind.  397,  82  N.  E.  771:  South     Carolina     &c.     R.     Co.     v. 

and  cases  cited  in  following  notes.  Blake,   9   Rich.    (S.    Car.)   228. 

36  Washington     R.     &c.     Co.     v.  s^  See    1    Elliott    Roads    and    Sts. 

Newman.  41   App.  D.  C.  439;  Peo-  (3rd  ed.).  §  419;  ante  §   1736. 

pie    V.    Chapman.    127    111.    387.    19  ^s  Lo^,jsJa,-,a  g^^    r    ^o.  v.  Vicks- 

N.    E.   872;    Booker   v.    Venice    &c.  burg    &c.    R.    Co..    112    La.   915.   36 

R.  Co.,  101  111.  333;  Strebin  v.  La-  So.  803. 

vengood.    163    Ind.    478.    71     N.    E.  ■"'  Lf.uisiana    Western    R.    Co.    v. 

494;    AIcKarg    v.    Jordan,    172    Ind.  Crossnian.   Ill    La.  611,  35   So.  784. 

84.  87  N.  E.  974;  Evansville  &c.  R.  -i"  Terre    Haute    &c.     R.    Co.    v. 

Co.  V.    Heerdink,   174   Ind.    537.  92  Flora.  29    Ind.   App.  442,  64  N.   E. 

N.   E.  598;   Chamberlaine    v.    Higli-  648.      In   Washington   an  appeal  to 

nite,  30   Ky.   L.  85.  97   S.    W.  396;  the  supreme  court  from  an  award 

I'^ield    V.    Vermont    &c.    R.    Co.,    4  of  damages  presents  only  the  ques- 

Cush.     (Mass.)     150;     Whittley     v.  tion  of  the  propriety  and  justice  of 

Alississippi   &c.    Co..  38   ?*Iinn.    523.  tlie  amount  of  the  award  and  raises 


^  1373  RAILROADS  1066 

pain-  succeeding-  to  the  rii^hts  of  anollier  conipaii}'  pendini^  C(M1- 
(lemnation  l)^■  such  com])any.  may  prosecute  an  appeal  in  its  own 
name  from  tb.e  award.-*'  Technical  exactness  and  nicety  is  not 
demanded  in  the  i)leadin.G:s  on  the  aj)])eal  from  the  commission- 
trs'  actions,  'idius,  it  has  been  held  not  error  to  overrule  a 
motion  to  make  a  bill  of  particulars  more  definite  and  certain 
where  it  was  not  misleading,  though  not  as  perfect  as  an  ordi- 
nar\-  petitit)n  should  l)e.'-  So  a  verdict  good  in  substance,  will 
not  be  vitiated  merely  because  of  some  irregularity  in  form.*^ 
.\  land-owner  failing  to  appeal,  is  conclusively  bound  by  the 
award  and  can  not  avail  himself  of  an  appeal  by  a  mortgagee  of 
the  i^remises.*'*  But  the  railroad  may  bring  in  such  land-owner 
'1  necessary  to  protect  its  rights.*^'  It  has  been  held  that  a  mort- 
gagee would  not  lose  his  right  of  a])peal  by  reason  of  having 
filed  a  claim  for  payment  of  the  mortgage  against  the  estate  of 
the  mortgagor.*"  The  question  whether  certain  persons,  who 
were  not  parties  to  the  condemnation  i)roceedings,  w^ere  entitled 
to  damages  will  not  be  considered  on  appeal.''  The  statutory 
provision  that  an  appeal  shall  be  governed  by  the  same  law  as 
in  other  causes,  except  the  judgment  of  the  county  court  shall 
not  be  suspended  thereby,  has  been  held  not  to  authorize  an 
appeal  by  property  owners  who  have  accepted  money  paid  into 
court  on  the  condemnation  judgment  and  executed  receipts  in 
full  therefor.-''* 

no  (nicstioii  as  ti)  tlic  right  to  con-  •*'■  Omaha    Bridge    &c.    R.    Co.    v. 

dcmn.        Coats-Fordncy      T.ogginj?  Reed    (Nebr.),  92   N.   W.   1021,  af- 

Co.  V.   Grays  Harbor  &c.   Co.,  100  firmed  on   rehearing  69  Nebr.   514, 

Wash.   491,    171    Pac.  241:    State   v.  96   N.   W.  276. 

Superior  Court,  100  Wasli.  485.  171  ■*"  Marquette  &c.  R.  Co.  v.  Long- 

Pac.   238.  year,   133   Mich.  94,  94  N.  W.  670, 

^^  Union   Traction  Co.  v.   Basey,  10  Det.  Leg.  N.  111. 

164  Tnd.  249.  7i  N.  E.  263.  «  Parks   v.   Dallas  Terminal    &c. 

^-  Missouri       &c.       R.       Co.      v.  Co..  34  Tex.  Civ.  App.  341,  78  S.  W. 

Schniuck.  69  Kans  272,  76  Pac.  836.  533.     Under  the  statute  in   Missis- 

'•■'  .Xtlantic    &c.   R.    Co.   v.    Postal  sippi  a  land-owner  who  accepts  the 

&c.   Co.,  120   Ga.  268,  48  S.   E.   15.  money  assessed  by  the  eminent  do- 

•*•'  Omaha    Bridge    &c.    R.    Co.    v.  niain  tribunal  is  estopped  from  ap- 

Reed.  69  Nebr.  514,  96  N.  W.  276.  pealing  to  the  circuit  court.     Ala- 

*•' Omaha    Bridge    &c.    R.    Co.   v.  bama    &c.    R.    Co.    v.    Tilallett,    118 

Reed.  69  Nebr.  514,  96  N.  W.  276.  Miss.  31,  78  So.  952. 


1067  Al'I'KAL  AN'I)  CERTIORARI  §1-^74 

§  1374.  Costs  of  appeal. — Oucstions  as  to  the  ri.^-lit  to  dismiss 
nn  ap])ea].  and  as  to  costs  and  the  like,  are  considered  in  the  cases 
cited  below. '^  Such  matters  depend  largely  upon  the  consti- 
tution or  g-overning  statute  in  the  particular  jurisdiction.  As  a 
general  rule,  however,  it  may  be  said  that  where  the  land-owner 
."tppeals  and  is  successful,  he  is  not  liable  for  costs  of  the  appeal, 
but  is  liable  in  most  jurisdictions  if  he  is  unsuccessful  and  does 
not  even  increase  the  amount  of  damages,''''^  while,  on  the  other 
hand,  the  weight  of  authority  is  to  the  effect  that,  wdiere  the 
appeal  is  by  the  i)arty  seeking  to  condemn,  the  land-owner  can 
not  be  made  to  ])ay  any  of  the  costs  of  appeal  even  though  the 
condemnor  may  be  successful  on  appeal,  because  to  make  the 
land-owner  liable  therefor  would  result  in  a  reduction  of  the  just 
compensaticm  required  b\'  the  constitution  and  awarded  by  the 
jury.''^    In  the  one  case  the  land-owner,  having  bad  liis  damages 

^^ChicaRo   &c.    Co.   v.   Patterson.  696;  Rt'dmond  v.  PcM-rioo,  84  Wash. 

26    Ind.    App.    295.    59    N.    E.    688:  407.  146  Pac.  838.     See  also  note  in 

St.  Louis  &c.  R.  Co.  V.  Martin,  29  .-Xnn.  Cas.   1912C,  535,  536. 
Kans.   750:    Norfolk   &c.   R.    Co.   v.  ■'^i  San    Joaquin    &c.    Co.    v.    Stev- 

Rasnake.  90  Va.  170.  17  S.  E.  879.  inson.  165   Cal.  540.  132  Pac.   1021: 

See     also     as     tf)     costs.     Rawson-  Oakland    v.    Pacific    Coast    Lumber 

Works  Lumber  Co.  v.  Richardson.  &c.   Co..  172  Cal.  332.  156  Pac.  468. 

26    Idaho    37.    141    Pac.    74;    Balti-  Ann.     Cas.     1917E.    259:     Raw.son- 

more  &c.  R.  Co.  v.  Brown's  Heirs.  Works   Lumber  Co.  v.  Richardson, 

74  W.  Va.  149,  81  S.  E.  731.  26    Idaho   ?,7.    141    Pac.    74:    Peoria 

■'^  Los    Anoeles     &c.     R.     Co.    v.  &c.    Trac.    Co.    v.    \'ance.    251    111. 

Rump.    104    Cal.    20,    ^7    Pac.    859:  263,  95  N.  E.  1081.  Ann.  Cas.  1912C. 

Oakland    \.    Pacific    Coast    Lumber  532  and  cases  cited  in  note:  In  re, 

&c.  Co.,  172  Cal.  332,  156  Pac.  468.  New    York    &c.    R.    Co.,   94    N.   Y. 

Ann.    Cas.    1917E.    259    and    note;  287:    Oregon    River    &c.    R.    Co.   v. 

:\rcCaskey  v.  iM.  Dodge  &c.  R.  Co..  Taffe.   67   Ore.    102.    134  Pac.    1024. 

154   Iowa    652.    135   N.   W.  6    (con-  135    Pac.   332.   515:    Stoltze  v.    M\\- 

demnor   had    to   pay   because   land-  waukee    &c.    R.    Co.,    113    Wis.    44. 

owner    was    successful);    Music    v.  88  N.  W.  919.  90  .\m.  St.  833.    But 

Big  Sandy  &c.  R.  Co.,  163  Ky.  628.  in    the   case    of    In    re    Bensel.   230 

174    S.    W.    44.    Ann.    Cas.     1916E.  1-cd.    932,    held    that    while    this    is 

689      (land-owner     successful      and  the   general   rule   it  does  not  apply 

condemnor    liable);    State    v.    Dis-  where   the   condemnor   succeeds   in 

trict  Court,  87  Minn.  268,  91  N.  W.  reversing   a   judgment    in    favor    of 

1111;    Madison    County    R.    Co.    v.  the  land-owjier.     See  also  for  cases 

Gahagon,  161   N.  Car.  190.  76  S.  E.  in    which    land-owners    were    held 


<    1  o  (  <J 


RAILROADS 


1068 


laufulh'  assessed  l)y  a  com])ctetit  tribunal,  can  not  complain  of 
liavinjj  to  pay  costs  if  he  voluntarily  appeals  and  is  unsuccessful. 
Me  has  had  his  day  in  court  and  received  what  has  been  found 
to  be  just  compensation,  and  the  leg-islature  in  giving  him  a 
rii^ht  to  api)eal  could  impose  on  him  such  terms  as  to  costs  as  it 
miijht  deem  just  and  proper,  l^ut  in  the  other  case,  he  does  not 
v()luntari]\  incur  the  cost  and  expense  of  appeal.  He  is  forced 
to  do  so  by  the  party  seekinj^  to  condemn,  who  in  ajipealing  in 
effect  thus  continues  the  proceedings  instituted  ])y  such  party 
lor  ascertaining  the  compensation  payable  to  the  land-owner  and 
taking  his  ])r()])erty  against  his  will.  There  seems  to  be  good 
reason  for  making  the  distinction  drawn  by  many  of  the  authori- 
ties and  holding  that  the  land-owner  can  not  be  com])elle(I  to 
])av  the  costs  of  an  ap])eal  by  the  condemnor,  even  though  the 
latter  may  succeed  on  such  appeal  in  reducing  the  award,  where 
the  constitution  requires  just  compensation  and  making  the 
land-owner  pay  such  costs  would  deprive  him  of  it. 

§  1375.  (1054).  Certiorari. — In  some  jurisdictions  an  appro- 
priate mode  of  resiewing  ])roceedings  in  cases  involving  the  ex- 
ercise of  the  ])ower  of  eminent  domain  is  by  certiorari. '*'-  In  some 
of  the  states,  in  cases  where  the  court  has  failed  to  acquire  juris- 
diction of  the  defendant's  person,  this  writ  is  the  proper  reme- 


lial^lc  for  costs  whore  the  condem- 
nors appealed  and  reduced  the 
damages:  Indiana  Cent.  R.  Co. 
V.  Atkinson,  6  Ind.  149;  Fort  St. 
Union  Dcpt.  Co.  v.  Backus,  103 
Mich.  556,  61   N.  W.  787. 

•■2  Elbert  v.  Scott  (Del.),  90  Atl. 
587;  VVillson  v.  Gifford,  42  Mich. 
454.  4  N.  W.  170;  Chicago  &c.  R. 
Co.  V.  Young,  96  Mo.  39,  8  S.  W. 
776;  {'"reeman  v.  Ogden,  40  N. 
^■.  105;  People  v.  Hildreth,  126  N. 
V.  360,  27  N.  E.  558;  Tennessee 
Cent.  R.  Co.  V.  Campbell,  109  Tenn. 
640,  75  S.  W.  1012;  Adams  v.  New- 


fane,  8  Vt.  271;  Seattle  &c.  R.  Co. 
V.  Land,  81  Wash.  201,  142  Pac. 
680;  State  v.  Ashland,  71  Wis.  502, 
37  N.  W.  809.  Certiorari  is  a  proper 
method  of  review  of  the  necessity 
or  right  to  condemn  in  a  number 
of  jurisdictions.  Board  v.  Pitt- 
mans  &  Dean  Co.,  202  Mich.  3Z, 
167  X.  W.  978;  State  v,  Superior 
Court.  100  Wash.  481,  171  Pac.  48. 
It  has  also  been  held  that  refusal 
to  approve  a  proper  bond  may  be 
reviewed  on  certiorari.  American 
Nat.  Gas  Co.  v.  Evans,  63  Pa. 
Super.   Ct.   162. 


1069                  APPEAL  AND  CERTK)KAKI  §  1375 

(iy.-^'^  Tliis  is  a  common-law  writ  whicli  is  usually  granted  only 
where  a|)])eal  is  not  available.'*    In  most  jurisdictifms  it  lies  only 

■'■'■  Dunla])   \-.   Toledo   &c.    R.   Co..  lion.     Seattle  &c.  R.  Co.  v.  Reiling- 

46  -Midi.  190,  9  N.  VV.  249:  Bixby  ham  &c.  R.  Co..  29  Wa.sh.  491,  69 
V.    Goss,    54    Midi.    551.    20    X.    W.  I'ac.   1107. 

581;  South  Wales  R.  Co.  v.  Rich-  ■"■*  United  States  v.  Beatty.  232 
ards,  6  Ens.  Railvv.  &  Canal  Cas.  U.  S.  463,  34  Sup.  Ct.  392,  58  L. 
197.  It  is  said  that,  ordinarily.  ed.  686;  Cedar  Rapids  &c.  R.  Co. 
the  court  will  refuse  to  f^rant  a  v.  Whelan,  64  Tovva  694,  21  N.  W. 
writ  of  certiorari  where  the  lack  141;  Dunlap  v.  Toledo  &c.  R.  Co., 
of  jurisdiction  appears  on  the  Ucv  46  Mich.  190,  9  N.  W.  249;  State 
of  the  proceedings,  but  will  leave  \.  I'iftli  Judic.  Dist.  Ct..  29  Mont. 
the  party  to  his  action  for  tres-  153,  74  Pac.  200;  Boston  &rc.  R.  Co. 
1)ass.  Baltimore  &c.  R.  Co.  v.  v.  l-'olsom,  46  N.  H.  64;  Tennessee 
Northern  &c.  R.  Co..  15  Md.  193:  Cent.  R.  Co.  v.  Campbell,  109 
Reg.  V.  Bristol  &c.  Ry..  11  Ad.  c^-  Tenn.  640.  75  S.  VV.  1012;  State  v. 
Ell.  202,  2  Eng.  Railw.  &  Canal  King  Co.  Super.  Ct..  30  Wash.  219. 
Cas.  99.  One  against  whom  it  is  70  Pac.  484;  State  v.  Superior 
sought  to  enforce  a  judgment  al-  Court.  46  Wash.  303.  89  Pac.  879: 
though  he  was  not  a  party,  may  The  granting  of  a  writ  of  certiorari 
aoply  for  a  certiorari.  Clary  v.  is  largely  in  the  discretion  of  the 
Hfiagland.  5  Cal.  476.  .X  writ  of  court,  and  it  will  not  be  granted 
certiorari  has  been  granted  t<T  re-  to  review  the  technical  errors 
view  proceedings  in  which  an  or-  wliere  substantial  justice  has  been 
der  was  made  which  the  court  had  done,  l^.oston  &c.  R.  Co.  v.  I'ol- 
no  jurisdiction  to  make,  when  the  som.  46  N.  IT.  64:  Board  v.  Ma- 
petitioner  was  about  to  proceed  .goon.  109  111.  142;  Keys  v.  Board 
under  this  void  order,  to  commit  &c..  42  Cal.  252.  For  other  cases 
a  trespass  on  the  land  concerning  in  which  certiorari  has  been  grant- 
which  it  was  made.  California  ed,  see  Delaware  (!v;c.  R.  Co.  v. 
Pac.  R.  Co.  V.  Central   Pac.  R.  Co..  Burson.    61    Pa.    St   369:   Joliet    &c. 

47  Cal.  528.  In  Washington  where  R.  Co.  v.  Barrows.  24  111.  562:  Ccu- 
no  review  on  appeal  of  the  (pics-  tr.nl  R.  Co.  v.  Pennsylvania  R.  Co.. 
tion  of  public  use  and  interest  in-  31  N.  J.  Eq.  475;  State  v.  Moiit- 
volved  in  the  exercise  of  eminent  clair  R.  Co..  35  N.  J.  L.  v328:  I'itch- 
])roceedin,iis  is  allowed  it  i'^  held  burg  R.  Co.  v.  Boston  &c.  R.  Co., 
that  the  sui)reme  court  had  juris-  3  Cush.  (Mass.)  58:  Worcester  R. 
diction  to  issue  certiorari  [n  bring  Co.  v.  Railroad  Commissioners, 
up  for  review  the  record  in  an  118  Mass.  561.  .\fter  the  time  for 
action  adjudging  the  rigiit  of  way  ;in  appeal  has  been  suffered  to 
of  one  railroad  necessary  for  an-  elapse  the  court  will  not  grant  a 
other  road,  that  the  intended  use  writ  of  certiorari  to  review  the 
was  a  ])ublic  one.  and  that  the  pub-  ]iroceedings  unless  some  good  ex- 
lic   interest   re(|uired   its   appropria-  cuse  for  the  delay  is  shown.     Dun- 


^  1:^76                                                .    KAILKOAD.S  1070 

to  correct  errors  of  law  and  not  to  review  the  evidence. ^^ 

§  1376.     Ce.'-tiorari — How  obtained — What  must  be  shown. — 

'1  he  writ  of  certiorari   is  usuaHy  i^Tanted  only  at  the  suit  of  an 
interested  party  in  the  case,^"    upon  petition,  statinj^:  a  sufficient 

cause,"  and  properly  supported,  when  necessary.  1)\-   an   affida- 

lap  V.  Toledo  &c.  R.  Co..  46  Mich.  in  .\nii.  Ca.s.  19141).  1144;   1    l-.llinit 

190.  9  N.  W.  249.     Sec  also  Slocuiu  Ix.kuIs  and  Streets  (.ird  cd.).  Jj  427. 

V.    Xcptunc    'Vp..    5S    X.    J.     I..    .S95.  ■"'•'Sdinc    injury    must    Ik-    siiown 

5.3     All.     .301.       .\n     errnr     in     llu'  In    liaxc    resulted    from    tlie    errors 

amount    of    damages,  awarded    can  complained  of.     lioslon  &c.   R.  Co. 

not  be  corrected  by  certiorari.  The  v.    J""olsom.  46   .\'.    11.   64:    Pastels   v. 

proper    course    is    to    appeal.      Dc-  Oaks.  64   Iowa  198,   19   X.   W.  905; 

troit     &c.     K.     Co.     V.     Graham,    46  Pickford    v.    Lynn.    98    .Mass.    491. 

Mich.  642.    '  A    timely   application    for    the    writ 

"'•  Rctts      V.      Warren.      5      TIarr.  must  be  made  or  it  will  be  refu>ed. 

(Del.')  4:    E\  parte  Nightingale,   11  Wilder    v.    Ilubbcll.    43    .Mich.    487. 

I'ick.      (Mass.)      168:      Hayfard     v.  5  N.  W.  673:  Spoflford  v.  lUicksport 

I'.angor,  102  .Maine  340,  66  .\tl.  731.  &c.    R.    Co..   66    :\laiue   26.      Where 

11     1,.    R.    .A.    (X.    S.)    940:    Detroit  tlie    writ    was    asked    to    review    the 

&c.    R.    Co.    V.    Graham.    46    Mich.  action  of  the  county  commissioners 

642.    112    N.    W.    998:    Conovcr    v.  in  dismissing  the  petition  to  revise 

Davis,  48   X.  J.   1„   112,  2  .Atl.  667:  the   award,  because   of  a   failure   to 

Morrill    v.    Morrill,   20   Ore.    96.    25  ])rosecute    the    same,    it    was    held 

Pac.  362,    11    I..    R.    .\.    155,  23   .\ni.  that    the    provisions    of    the    statute 

.St.    95:    F.lliott    Roads    and    Streets  directing    the    dismissal    of    such    a 

(3rd    ed.).    §    426.      See    also    Kirby  petition  if  the  party  failed   to  jiros- 

V.     Ct.     of      Comrs.     of     Marshall  ecute    it   at   the    next    regidar    term 

County.    186   .'Ma.   611.   65    So.    163;  after     it     was     filed,     unless     good 

-Xtlanta  &c.  R.  Co.  \-.  Redwine,  123  cause    for    deUi}'    was    shown,    con- 

Ga.    736,   51    S.    K.   724.      It    is    gen-  ferred      ujjon      the      commissioners 

erally    confined    tf)    cases    in    which  authority     to     decide     whether     the 

there   is   a    want   of  jurisdiction    or  excuse    ofifered    for    the    delay    was 

where   it   is   exceeded   and   there   is  suflicient.     and     that    the     supreme 

no   adequate    remedy   by    ai)peal    or  court    woidd    not    revise    that    deci- 

otlierwise.  ^{011.      Portland    &c.    Co.   v.    County 

•'■''' Sec  as  to  sjiecial  interest  being  Commissioners.      64       .Maine      505. 

re(|nired.     Moore     v.     Hancock,     11  Where    the    record    of  the   ])roceed- 

.\la.    245;    Richman    v.     Mu.scatine  ings   of  a   board   of   commissioners 

Co.,    70    Tovva    627.    26    N.    W.    24;  in   locating  railroad   crossings,   and 

Central   R.  Co.  v.  Hudson   &c.   Co.,  altering  the  courses  of  roads,  were 

46  N.  J.  L.  289:  State  v.  .Anderson,  so  defective  as  to  be  unintelligible 

130  Wis.  227.   109  N.  W.  981,  note  without  the  aid  of  parol   cvidMice, 


1071 


.M'I'KVL  AND  CEKTIOKAKI 


§1377 


\  it.'"'^  He  should  show  in  his  petition  that  justice  requires  the 
i^'ranting"  of  the  writ  and  should  state  all  that  is  necessary  to  makf 
a  clear  prima  facie  case.^^ 

§  1377.  Certiorari — Proceedings  on  return  of  writ. — Upon  the 
return  of  tlie  writ,  the  proceedings  ol'  the  inferior  tribunal,  as 
^liown  l>y  the  record.''"  are  examined,  and  its  judgment  affirmed 


it  was  held  proper  to  j^rant  a  writ 
(if  certiorari  to  review  them.  J'ort- 
land  &c.  R.  Co.  v.  Coiint}^  Coni- 
inissit)ners,  65  Maine  292.  lUit  see 
.State  V.  .Miller,  23  N.  J.  L.  383.  In 
nuuu'  of  tiie  states  a  party  who 
shows  equity  may  have  an  injimc- 
tion  in  ca.sc.s  where  tlie  proceed- 
ings are  void  because  jurisdiction 
does  not  exist.  "An  application  for 
certiorari,  praj'ini^  lor  a  review  of 
an  adjudicatitm  that  the  right  of 
way  of  one  railroad  can  he  con- 
demned lor  the  use  of  another 
railroad,  or  that  it  is  for  a  public 
use,  and  required  by  the  public  in- 
terest, and  denyinj^'  the  power  to 
appropriate  such  propertj'  because 
it  is  already  appropriated  for  the 
construction  and  operation  of  a 
railroad,  states  sufficient  cause  for 
the  issuance  of  the  writ."  Seattle 
iH:c.  R.  Co.  V.  Rellingham  Piay  &c. 
R.  Co.,  29  Wash.  491,  69  Pac.  1107. 
=s  State  V.  T.ittle,  49  X.  J.  T..  182, 
6  Atl.  .S19:  Cham1)crs  v.  Lewis.  9 
Idwa  583.  I-iir  verification  held 
sufficient  see  Georgia  R.  &c.  Co. 
V.  J.  M.  High  Co.,  15  Ga.  App.  243, 
82  S.  E.  932.  Counter  affidavits  are 
admissible  to  show  the  waiver  of 
the  alleged  irregularities.  .Si^offord 
V.  Busksport  &c.  R.  Co..  66  Maine 
26;  Bresler  v.  Ellis.  46  .Mich.  335, 
9  N.  W.  439.  The  fact  that  im- 
proper  items    of   injury   were    con- 


sicKred  in  e^tim.•lting•  the  dama.gcs 
may  be  shown  by  affidavit.  Penny. 
In  re,  7  l':il.  &  P.l.  660.  The  affi- 
davits must  show  positively  that 
the  errors  ha\e  been  committed. 
Keg.  V.  Manchester  &c.  R.  Co.,  8 
A.l.   &•    ITl.  413. 

•■■' P.oard  V.  .Magoon,  109  111.  142; 
Hell  V.  ?\fattoon  Waterworks  &;c. 
Co.,  235  111.  218,  85  N.  E.  214; 
Lees  V.  Childs,  17  ^Tass.  351; 
P.oston  i^c.  R.  Co.  V.  Folsom,  46  X. 
li.  64;  1  Elliott  Roads  and  Streets 
f3rd  ed.).  §  427.  See  also  Re  Pen- 
ny &c.  R.  Co.,  9  E.  B.  660,  26  L. 
J.  Q.  B.  226. 

'■"  Philadelphia  <!tc.  R.  Co.  In  re. 
6  Whart.  (  Pa.)  25,  36  Am.  Dec. 
202;  Church  v.  X^orthern  Central 
R.  Co.,  45  Pa.  St.  339.  See  also 
Ann  Arbor  R.  Cn.  v.  Beach,  110 
^lich.  209,  68  X.  W.  124:  McCullcy 
V.  Cunningham,  96  Ala.  583,  11  So. 
694.  It  is  Iield  that  the  return  to 
the  writ  is  conclusive.  Traverse 
C^ity  S:c.  R.  Co.  v.  .Seymour,  81 
Mich.  378.  45  X.  W.  826;  Forbes 
V.  Delashmutt,  68  Iowa  164.  26  X. 
W.  56.  As  to  requisites  of  return 
see  Palmer  v.  I""ors3'th,  4  Barn.  &- 
C.  401;  Stone  v.  New  York,  25 
Wend.  (X.  V.)  157;  Starr  v.  Ro- 
chester, 6  Wend.  (N.  Y.)  565.  As 
to  what  questions  may  be  consid- 
ered on  the  hearing,  see  Schroeder 
v.  Detroit  &c.  R.  Co.,  44  Mich.  387, 


^  l;J77  RAILROADS  1072 

c>r  set  aside,  as  tlie  i)rocee(ling's  are  sliown  to  have  l)een  author- 
ized by  law  and  conducted  in  accordance  with  correct  principles 
or  not.'''  As  a  general  rule,  no  question  which  did  not  properly 
come  before  the  commissioners  can  l)e  considered  on  certiorari 
to  review  their  action.  IT  they  are  found  to  have  had  jurisdic- 
tion, the  court  will  only  incpiire  whether  their  proceedings  have 
been  legally  conducted."-  The  office  of  the  writ  of  certiorari  has 
been  so  changed,  however,  in  some  jurisdictions,  by  statute  or 
otherwise,  that  these  general  rules  may  not  fully  apply  in  the 
particular  jurisdiction  and  the  local  statute  and  decision  should 
.iKvays  be  consulted. 

6   X.    W.   872:    New   Jersey   cS^c.    R.  v.    Ilildreth.    126   X.    Y.   360,   21   N. 

Co.    v.    Suydani,    17    X.    J.    L.    25:  E.  558. 

Cliambcrs    &c.    R.    Co.    v.    Carteret  «2  c,-andc!l  v.  Taunton,  1 10  .Mass. 

&c.   R.  Co.,  54  N.  J.  L.  85,  22  Atl.  '^21;     Commissioners     v.     Supervi- 

995:    Church    v.    Northern    iS;o.    R.  ^<"'^.  '^'^  ^H-  ^40:  McAlliUey  v.  Hor- 

Co     45   Pa    St    339  ^^"'    ^^    ^^^-   ^^^'      Commissioners 

to  assess   damages   for   land   taken 

'■i  Question^  ot  law  only  are  usu-  i      '        -i        j  i 

■'  by  a  railroad  company  have  no  au- 

ally       considered       on       certiorari.  ^j^^^j^^  ^^   ^^^j^^   .^^   ^^^   j^^  ^,,^,.p^^_ 

Schroeder  v.  Detroit  &c.  R.  Co.,  44  ^^^e     existence    and     right    to    take 

Mich.  387,  6   N.  W.  872:    German-  ].„,,}  j„  i„vitum,  and  a  writ  of  cer- 

town  .'\ venue,  In  re,  99  Pa.  St.  479;  tiorari  to  review  their  action  brings 

Low  v.  Galena   &c.  R.   Co.,   18  III.  no  such  question  before  the  court. 

324;    Everett  v.    Cedar   Rapids    &c.  Schroeder    v.    Detroit    &c.    R.    Co., 

R.  Co.,  28   Towa  417.     See   People  44  Mich.  387,  6  N.  W.  872. 


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